April 10, 1967 

Hon. Charles F. Herring Opinion No. M-54 

Chairman, Jurisprudence Committee 

Senate Re: 

Austin, Texas 

Validity of Senate Bill 

317 of the 60th Legislature authorlzlng Justices 

Dear Senator Herring: 

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: 

"A BILL 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 amended by 

adding a nex Article 2393a to read as follows: 

"'Article 2393a. Exchange of Benches, A 

justice may hold court for any other justice whose 

precinct Is In the same county; and the justices 

of a county may exchange benches whenever they 

deem It expedient.' 

ltSec. 2. The importance of this legislation 

and the crowded condition of the calendars in both 

Houses create an emergency and an imperative public 

necessity that the Constitutional Rule requiring 

- 246 - 
Hon. Charles F. Herring, page 2 (M-54) 

bills to be read on three several days In each 

House b$ suspended, and this Rule is hereby suspended. 

Section 18 of Article V of the Constitution of Texas 

provides as follows: 

*Each organized county in the State now 

or hereafter existing, shall be 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 commissioners precincts in 

each of which there shall be elected by the qualified voters thereof one County Commlssioner, who 

shall hold 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 Commissioners Court, which shall exercise 

such powers and jurisdiction over all county business, 

as Is conferred by this Constitution and the law! 

of the State, or as mav be hereafter orescribed. 

(Emphasis added.)~ " 

Section 19 of Article V of the Constitution 

provides as follows: 

"Justices of the peace shall have jurisdiction in criminal matters of all cases where the 

penalty or fine to be imposed by law may not be 

more than for two hundred dollars, and in civil _ _- . 

of Texas 

matters of all cases where 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 provided by law ., under such regulations 

as may be prescribed by law; and appeals to the 

County Courts shall be 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 

costs; and in all criminal cases under such 

regulations as may be prescribed by law. And 

the justices of the peace shall be ex officio 

notaries public. And they shall hold their 

courts at such times and places as may be provided by law." (Emphasis added.) 

In discussing territorial jurisdiction of Justices of 

the Peace, it was held in Brown v. State, 118 S.W. 139 (Tex. 

Crlm. 1909); 

nWe are 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 jurisdiction on the nearest justice of 

the peace in the county to perform the duties 

of such absent justice. The statute, however, 

does not confer power 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 such nearest 

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 Issue process In that precinct 

returnable before another justice, then the 

reasoning Is infinitely stronger why the neighboring justice cannot go into the domain of an 

adjoining or other justice precinct where there 

is a resident authorized and 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 authority under any provision of law in 

Texas. This construction of our constitutional 

and legislative provisions seems to have been 

followed from practically the beginning of our 

jurisprudence.‘ We are not discussing how far 

the Legislature may go in fixing the territorial 

urisdiction of justices of the peace. We are 

only discussing the statutes as we find them 

enacted. (Emphasis added.) 

- 248 - 
Hon. Charles F. Herring, page 4 (M-54) 

Thus while Brown v. State establiahea the principle 

that under existing law’ “ohe Justice of the Peace as such cannot 

sit in the precinct of another Justice even when the other Justice 

is absent” (118 S.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 Court made the following observation: 

“It is provided by article 1566, Rev. St. 

1895, that ‘during the 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 county may perform the duties 

of the office until such vacancy shall be filled, 

or such absence, inability or unwllllngness shall 

cease. ’ 

,t 

. . . . 

“We are 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 jurisdiction upon the nearest justice of 

the peace in the county to perform,the duties 

of such absent justice. The statute does not, 

however, confer power 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 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 for membership on juvenile boards by district judges. 

In that case the Court observed: 

.The Supreme Court of this state has 

repeatedly held that courts have no right to 

declare an act of the Legislature void, unless 

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

able to point to some provision of the Constitution which prohibits the act or from which 

the prohibition necessarily 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 Peace by authorizing a Justice of the 

Peace to hold Court for another Justice whose precinct is in the 

same county. We are unable 'to polnt 

Constitution which prohibits the Act." 

to some provision of the 

Therefore you are advised 

that Senate Bill 317 of the 60th Legislature authorizing exchange 

of benches by Justices of the Peace is constltutlonal, 

SUMMARY 

Senate Bill 317 of the 60th Legislature authorizing exchange of benches by Justices of the 

Peace is constitutional. 

truly yours, 

D @z&R C, 

cc* 

TIN 

y General of Texas 

Prepared by John Reeves 

Assistant Attorney 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. 

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