April 10, 1967

Hon. Charles F. Herring OpinionNo. M-54 Chairman, JurisprudenceCommittee Senate Re: Austin, Texas Validity of Senate Bill 317 of the 60th Legislature authorlzlngJustices
Dear SenatorHerring: of the Peace to exchange benches.
You have requested our opinion on the validity of Senate Bill 317 of the 60th Legislature. Senate Bill 317 reads as follows:
"ABILL TO BE ENTITLED

AN ACT "Authorizing justices of the peace of the same county to hold court for each other and to exchange benches; amending Chapter 2, Title 45, Revised Clvll Statutes of Texas, 1925,by adding a new Article 2393a; and declaring an emergency. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TMAS: 9ectlon 1. Chapter 2, Title 45, Revised Civil Statutes of Texas, 1925, is amendedby adding a nex Article 2393a to read as follows: "'Article 2393a. Exchange of Benches, A justicemay hold court for any other justicewhose precinct Is In the same county; and the justices of a countymay exchange bencheswhenever they deem It expedient.' ltSec. 2. The importance of this legislation and the crowded condition of the calendars inboth Houses create an emergency and an imperativepublic necessity that the ConstitutionalRule requiring

-246-Hon. Charles F. Herring, page 2 

### (M-54)

bills to be read on three severaldays In each House b$ suspended,and thisRule is hereby suspended. Section 

### 18 of ArticleV of the Constitution of Texas provides as follows:

*Each organized county in the State now or hereafter existing, shallbe divided from time to time, for the convenience of the people, into precincts,not less than four and not more than eight. Divisions shall be made by the Commissioners Court provided for by this Constltu-

-into four commissionersprecincts in each of which there shallbe electedby the qualified voters thereof one County Commlssioner,who shallhold his office for four years and until his successor shall be elected and qualified. The County Commissioners so chosen,with the County Judge as presiding officer, shall compose the County CommissionersCourt, which shall exercise such powers and jurisdictionover all county business, as Is conferredby this Constitutionand the law! of the State, or as mav be hereafter orescribed. (Emphasisadded.)~ " Section 19 of Article V of the Constitution provides as follows:

"Justicesof the peace shall have jurisdiction in criminalmatters of all cases where the penalty or fine to be imposedby lawmay not be more than for two hundreddollars, and in civil

_ _- . of Texas

matters of all caseswhere the amount in controversy Is two hundred dollars or less, exclusive of interest, of which exclusive original jurisdlctton is not given to the District or County Courts; and such other jurisdiction.criminal and civil, as may be providedby law., under such regulations as may be prescribedby law; and appeals to the County Courts shallbe allowed in all cases decided

- 247 -Hon. Charles F. Herring, page 

### 3 (M-54)

in Justices' Courts where the judgment for more than twenty dollars exclusive IS of such costs; and in all criminal casesunder regulationsas may be prescribedby law. And the justices of the peace shallbe ex officio notariespublic. And they shallhold their courts at such times and places as may be provided by law." (Emphasisadded.)
In discussing territorial jurisdictionof Justices of the Peace, it was held in Brown v. State, 

### 118S.W. 139 (Tex. Crlm. 1909);

nWeare of the opinion that the intention of this statute is, in the case of the absence of the justice of the peace, to authorize and confer jurisdictionon the nearest justice of the peace in the county to perform the duties of such absent justice. The statute,however, does not conferpower upon such nearest justice to go outside of his precinct, and to the office of such absent justice,and there perform such duties, but contemplates that the duties shall be performed in the precinct of suchnearest justice. Crawford v. Saunders, 9 Tex.Civ.App. 

### 225,29 s.w. 102. If this is correct, and It follows the authorities in this state from the beginning, and if the justice of one precinct cannot go Into the precinct of another justice of the peace and Issueprocess In that precinct returnablebefore another justice, then the reasoning Is infinitely strongerwhy the neighboring justice cannot go into the domain of an adjoining or other justiceprecinct where there is a resident authorizedand qualified justice of the peace, and institute or hold courts of inquiry,under Code Cr. Proc. art. 941. The visiting justice of the peace would have no such authorityunder any provision of law in Texas. This constructionof our constitutional and legislativeprovisions seems to have been followed frompractically the beginning of our jurisprudence.‘We are not discussinghow far the Legislaturemay go in fixing the territorial urisdiction of justices of the peace. We are only discussing the statutesas we find them enacted. (Emphasisadded.)

-248-Hon. Charles F. Herring, page 4 

### (M-54)

Thus while Brown v. State establiahea the principle that under existing law’“oheJustice of the Peace as such cannot sit in the precinct of another Justice even when the other Justice is absent” 

### (118S.W. at 141), the Court did not intend to S];;ey$ne the authority of the Legislature to prescribe otherwise.

. . at 142, supra.

In Stewart v. Smallwood, 102 S.W. 159 (Tex.Civ.App.1907), the Courtmade the following observation:

“It is provided by article 

### 1566,Rev. St. 1895, that ‘duringthe period of such vacancy in the office of Justice of Peace, or whenever the Justice of the Peace in any precinct shall be absent, or unable or unwilling to perform the duties of his office, the nearest Justice of the Peace in the countymay perform the duties of the officeuntil such vacancy shallbe filled, or such absence, inabilityor unwllllngness shall cease.’ ,t

. . . . “Weare of the opinion that the intention of this statute is, in the case of the absence of the justice of the peace, to authorize and confer jurisdictionupon the nearest justiceof the peace in the county to perform,theduties of such absent justice. The statute does not, however, conferpower upon suchnearest justice to go outside of his precinct and to the office of such absent justice and there perform such duties, but contemplates that the duties shall be performed in the precinct of such nearest justice. Crawford v. Saunders & Brts., 9 Tex. Civ. App. 225, 29 S.W. 102

. . . . It Is noted that the Court did not questlon the validity of the 1895 Act involved In that case.

In Jones v. Alexander, 122 Tex. 

### 328,59 S.W.2d 

### 1080 (1933),the Court upheld the validity of an act of the Legislature providing formembership on juvenileboards by district judges. In that case the Court observed:

.TheSupreme Court of this statehas repeatedly held that courtshave no right to declare an act of the Legislature void,unless

-249-Hon. CharlesF. Herring, page 5 (M-54)

able to point to some provision of the Constitution which prohibits the act or from which the prohibitionnecessarily arises. Lytle v. Halff, 

### 75 Tex. 

### 128,12 S.W. 610; Harris County v. Stewart, 91 Tex. 

### 133,41 S.W. 

### 650;Smiseion v. State, 

### 71 Tex. 222, 233, 9 S.W. 112' San Antonio, etc. v. 

### 1063." State, 79 Tex. 264, 14 S.W.
Construing the provlalons of Senate Bill 

### 317 of the 

### 60th Legislature In light of the foregoing authorities, it Is noted that the bill merely provides for the performance of additional duties by a Justice of the Peaceby authorizinga Justice of the Peace to hold Court for another Justice whose precinct is in the same county. We are unable 'topolnt Constitutionwhich prohibits the Act."to someprovision of the Therefore you are advised that Senate Bill 

### 317 of the 

### 60thLegislature authorizing exchange of benches by Justices of the Peace is constltutlonal, 

### SUMMARY Senate Bill 

### 317 of the 

### 60thLegislature authorizing exchange of benches by Justices of the Peace is constitutional. truly yours,

@z&R D C, cc*

TIN y General of Texas Preparedby John Reeves AssistantAttorney General
APPROVED: OPINION COMMITTEE Hawthorne Phillips, Chairman W. V. Geppert, Co-Chairman W. 0. Shultz Mark White Alan Minter James McCoy STAFF LEGAL ASSISTANT A. J. Carubbl,Jr.



### -250-