November 19, 1951 

Hon. G4orge M. Kelton opiaion HO:V-13416. 

‘County Attorney 

Ector County Re: Legslitr of a per@Ola'I 

Odesse, Texas b4ing et tbe uu'tlme 

4 jwtico of tbB p4rce 

pd a lebonr for the 

Perk D~.rislon" of a 

Dear Sir: - county. 

You heve wqutisted an OplnLoa on the following question: 

"Your offlc4 ia resrpectfully rvqaonted 

to'furnish 4n opinion 41) to Mmtbe? or not a 

county 4mplo~44 iatihe capsclty oi leborer ,. 

for the Park Division may at the 40140 ticw 

s4rv4 as JustIce of the Peac4 for on4 of the 

precincts in acid County.” 

The prohlbltioa of Section 40 of Article XVI 

of the Constitution ogoinat the holding of l DJSI th8n 

one civil 0rfice of emolum4nt by the s4a4 pereon et 

the 44~14 time does not apply to the office ;oi jwtlce 

of the peace tar the reaeon that this office la express1 4xcepted from its provisions. Att'y Gen. Op. 

v-828 f&g). 4110, it ia our opialon thet Section 40 

di grtlcle,XVX la84 no af+Mcatiota to Tour roqwrt, 

since a 18bonr in the Perk DivFslon is nqt 8 civil 

osfic4 of 4laolllm4nt. 

The remetning questloa to be'detmaid 18 

vhvther the duties OS a laborer in the "Park Dlviaion" 

of a couaty and the duties OS the office of jurtlce ot 

the p44ce are Lncompetlble. The t4st4 to be applied 

Ln determining incoaprtlbillty are concis4lf rt8ted in 

Knucklea v. 

"One oi the most important tcata 08 to 

vhbther offices era lnc#patlblv 18 Sound in 

th princcipls that tbe leeouipetlblllt~ Iv rem 

cognhed rbuvor one ia ruborddirrete to fba 
Hon. George hf. Kelton, page 2 (v-1346) 

other in some of its important rnd principal 

duties, or Is subjsct to supervision by the 

other, or where a contrariety and sntrgonis8 

would result in the attempt by on4 person to 

discharge the duties of both. Under this prlnciple two offices 814 LncompatLble vher4 the 

incumbent of one has th4 povsr to r48ove Wm 

Incumbent OS the other, though the contingency 

on which the power may be exsrciaed is remote, 

and it also exists where the iacuabent OS one 

offlce has the power of appointment as to the 

other office .‘I 

Mechem on Public Office8 rnd OIfIcaw (1890), 

Sec. 422, p. 268, states the rule 48 Sollovrc 

“It se4ms to be well settled that the 

q er4 physical imporsibility of one person’s 

p4rSormlng the duties OS the tvo off;ces 48 

from the lack of time or th4 ln4bilitr to be 

in two places at the same moment, ir not the 

incompetiblllty h4r4 referrod to. It murt be 

8n 1ncDnaiStenCy in the iUnCtiOn Of th4 tV0 

offices, as judge sad clerk of the a4me court, 

claimant and auditor, and the like.” 

Applying these tests to the positions in qu4stlon, v4 ere unable to perceive any incompatibility, 

for neither is subject to my supervision of tha other, 

nor would any antagonism result In an attempt by on4 

person to discharge the dutlcs of both. 

We know of no constitutional or statutory provision prohibiting a person’s being et the same time 4 

justice of the pcec4 and a laborer ior the “Park DLviaion” of a county. In vi.4~ of the Poregoing, we agrae 

with your conclusion that a couuty employes in the capecity of 4 laborer for the "Park Division may at the 

seme time serve as justice of the peace. 

SUMNARY 

A county employee in the capacity of 

laborer for the "Parks Division" is not 
Hon. George M. Kelton, peg4 3 (v-1346) 

prohibited from being at the aam t'lm4 a 

justice 0s th4 peece. 

APPROVED: Yours very truly, 

J. C. Davis, Jr. 

county Arrears Division 

FRIGE DARIBL 

tbttomey Geaeraa (. 

Everett Hutchinson 

Ex4cutiv4 Assistsnt 

Cherles D. M&hews 

First Asaistsnt 

JR:vh 

.