October 30, 1987 

Honorable J. Collier Adams, 

Cochran County Attorney 

109 West Washington 

Morton, Texas 79346 

Honorable Gale Warren 

Erath County Attorney 

Courthouse 

Stephenville, Texas 76401 

Jr. Opinion No. JM-819 

Re: Reconsideration of 

Attorney General Opinion 

JM-422: Whether the same 

person may serve 

justice of the peace a:: 

part time appointed 

municipal judge of a 

city within the same 

county precinct 

Gentlemen: 

You have requested that we reconsider the second 

question addressed in Attorney General Opinion JM-422 

(1986). This office was asked whether a person appointed 

justice of the peace may serve simultaneously as part time 

appointed municipal judge for a city located in the 

precinct. Attorney General Opinion JM-422 concluded that 

the common law doctrine of incompatibility prevented a 

justice of the peace from serving as a municipal judge 

under these circumstances. Upon reviewing 

and considering legal 

this question, 

arguments submitted after Attorney 

General Opinion JM-422 was issued, we have concluded that 

that question was incorrectly decided. 

Article V, section 18, of the Texas Constitution 

provides that a justice of the peace shall be elected in 

each of the precincts into which a county is divided, 

except that two justices of the peace shall be elected in 

any precinct in which there is a city~ of 18,000 or more 

inhabitants. See Attorney General Opinion JM-174 (1984). 

Article V, section 19, of the Texas Constitution provides 

that: 

Sec. 19. Justice of the peace courts 

shall have original jurisdiction in criminal 

matters of misdemeanor cases punishable by 

fine only, exclusive jurisdiction in civil 

matters where the amount in controversy is 

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Honorable Gale Warren 

Page 2 

two hundred dollars or less, and such other 

jurisdiction as may be provided by law. 

Section 29.002 of the 

. . - . . . 

Government Code creates a 

municipal court in eacn incorporated municipality. The 

municipal court has exclusive original jurisdiction within 

the territorial limits of the city of all criminal cases 

arising under the city's ordinances and punishable by 

a fine within the limits set out in section 29.003(a)(2) 

of the Government Code. See also Acts 1987, 70th Leg., 

ch. 600, 53, at 5073, 5074-75 (amending $29.003(a)(2) of 

the Government Code to increase amount of fine within 

municipal court's jurisdiction); Acts 1987, 70th Leg., ch. 

641, at 4880 (amending 529.003 of the Government Code to 

give municipal court jurisdiction in forfeiture of bail 

bonds and personal bonds taken in criminal cases of which 

the court has jurisdiction). Section 29.003(b) of the 

Government Code states the municipal court's concurrent 

jurisdiction with the justice court: 

(b) The municipal court has *concurrent 

jurisdiction with the iustice court of a 

precinct in which the municinalitv is 

located in all criminal cases arising under 

state law that: 

(1) arise within the territorial 

limits of the municipality; and 

(2) are punishable only by a fine 

not to exceed $200. (Emphasis added.) 

Gov't Code 529.003(b). Attorney General Opinion JM-422 

concluded that the concurrent jurisdiction of the justice 

court and the municipal court of a city located within the 

justice precinct made the two offices incompatible. This 

conclusion did not apply to an individual who serves as 

municipal judge of a city located in one county precinct 

and as a justice of the peace in another precinct. See 

aenerally Gov't Code 529.064(a) (municipal judge of home 

rule city selected under city charter provisions): 

530.204(b) (judge of Longview municipal court of record 

need not be resident of city); 530.294(b) (judge of 

Marshall municipal court of record need not be resident of 

city). Attorney General Opinion JM-422 addressed the 

question asked, and its answer was limited to the circumstances stated in that question. 

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Page 3 

Turning to your request for reconsideration, we 

believe that this opinion incorrectly applied the test for 

incompatibility to the holding of these two offices. The 

common law doctrine of incompatibility prevents one person 

from holding two offices if the duties are inconsistent or 

in conflict, or if one office is subordinate to the other. 

Thomas v. Abernathv Countv Line Indenendent School 

Diski&, 290 S.W. 152 (Tex. Comm'n App. 1927, judgment 

adopted). Attorney General Opinion JM-~422 described the 

incompatibility between the two judicial posts as follows: 

Courts of concurrent jurisdiction may 

waive their jurisdiction in favor of each 

other with respect to particular cases. 

Flores v. State, 487 S.W.2d 122 (Tex. Crim. 

APP. 1972). If one person acted as both 

justice of the peace and city judge at the 

same time, it would be within his power to 

manipulate the income of the courts over 

which he presided to the advantage or 

disadvantage of either the county or the 

city -- to both of which he would owe a duty 

of collection. The reason is, justices of 

the peace are required to account to the 

county treasurer for the fines collected by 

his court, whereas fines collected by city 

judges go into city coffers. See V.T.C.S. 

art. 1619; Code Crim. Proc. art. 45.06. By 

waiving the jurisdiction of the court in 

favor of the other court, the 'justice of 

the peace/city judge' could enrich one 

governmental entity at the expense of the 

other, depending, perhaps, on which of. them 

used such fees to compensate the officer 

collecting them. m Attorney General 

Opinion C-718 (1966). 

It is not correct, therefore, to say that 

neither court has any right or power to 

interfere with the other. 

Attorney General Opinion JM-422 at 5. 

The relevant discussion in Plores v. State, 487 

S.W.2d 122 (Tex. Crim. App.) concerns article 4.16 of the 

Code of Criminal Procedure, which provides: 

When two or more courts have concurrent 

.jurisdiction of any criminal offense, the 

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Honorable Gale Warren 

Page 4 

court in which an indictment or a complaint 

shall first be filed shall retain 

jurisdiction except as provided in Article 

4.12 [precinct in which defendant is to be 

tried in justice court]. 

Code Crim. Proc. art. 4.16. Flores said that the first 

court legally taking jurisdiction of an offense continues 

to have exclusive jurisdiction thereof, but the 

jurisdiction can be voluntarily surrendered by dismissal 

of the charge, and the second court may proceed to try the 

alleged offender. It pointed out that article 4.16 of the 

Code of Criminal Procedure was intended to prevent any 

confusion or contention between different courts having 

concurrent jurisdiction. 

On reconsideration, we do not believe that the 

offices of municipal judge and justice of the peace are 

rendered incompatible by virtue of article 4.16 of the 

Code of Criminal Procedure. The judge does not control 

the filing of a complaint. The complainant, who may be a 

law enforcement officer, a prosecutor, or a private 

citizen, files the complaint and determines which of two 

courts with concurrent jurisdiction will have jurisdiction 

of the case. u Code of Crim. Proc. arts. 2.13, 15.04, 

15.05, 45.01, 45.13, 45.16, 45.17. See, e a 

General Opinion C-718 (1966); O-3969 (1941): " 

Attorney 

To manipulate the income of the courts, the office 

holder would have to refuse to file complaints in one 

court and instruct the complainant to file in the other. 

If he did so, he would not in fact be performing the 

duties of either office. The legally required duties of 

the offices are not in'conflict despite the possibility of 

such conduct on the part of the officeholder. 

None of the authorities cited in Attorney General 

Opinion JM-422 state reasons why the concurrent 

jurisdiction of two courts would bring the duties of the 

two judicial officers into conflict. Two 1913 opinions 

stated without explanation that the offices would be 

incompatible because of their concurrent jurisdiction. 

Attorney General Opinion (to Mr. A.C. Dunn, March 14, 

1913); Attorney General Opinion (to Hon. Philip P. Long, 

October 3, 1913); 1912-1914 Biennial Report of the 

Attorney General 722-24. Attorney General Opinion O-2055 

(1940), however, concluded that the concurrent 

jurisdiction exercised by the justice court and the 

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Honorable J. Collier Adams, Jr. (JH-819) 

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Page 5 

municipal court did not render the 

because: 

Neither office is accountable 

dominion of, or subordinate 

. . . . . . 

offices incompatible 

to, under the 

to the other: 

Deitner nas anv riant or Dower to interfere 

yith the other in th oerforma of anv 

Q&y. An appeal fromeeither c% has no 

relation to.the other, but is independently 

to other courts. (Emphasis added.) 

Attorney General Opinion O-2055 (1940). 

Attorney General Opinion JM-422 gave another reason 

for concluding that a municipal judge could not serve as a 

justice of the peace with concurrent jurisdiction. It 

relied on Attorney General Opinion WW-1359 (1962) which 

held that one person might not hold the office of justice 

of the peace, precinct 1, 1 and the office of 

justice.of the peace, 

place 

time. 

precinct 1, place 2 at the same 

The 1962 opinion stated as follows: 

There have been a number of cases and 

Attorney General's Opinions which hold that 

one person may hold one of the enumerated 

offices in Section 40, Article XVI, Texas 

Constitution, and some other office of a 

different character, so long as the two 

offices are not incompatible. But we have 

no case which holds that one person may hold 

the two offices of Justice of the Peace 

within the same precinct at the same time. 

Section 10, Article V, Texas Constitution, 

states that in Justice precincts in which 

there may be a city of 8,000 inhabitants, 

'there shall be elected two Justices of the 

Peace.' If Judge George could hold both 

offices at the same time, it would not 

comply with the requirement of 'two' 

Justices of the Peace. The number of 

Justices of the Peace in Precinct 1 may be 

reduced to a single Justice of the Peace, 

but this can only be done by the 

Commissioners Court. veridith v. Sharp 

sunra. Since the Commissioners Court ok 

Denton County has not yet seen fit so to do, 

we must construe Sec. 40, Art. XVI, and Sec. 

18, Art. V, Texas Constitution, together, 

and hold that while a Justice of the Peace 

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Page 6 

may hold some other office not incompatible 

with the office of Justice of the Peace, he 

may not hold the offices of Justice of the 

Peace, Precinct 1, Place 1 and Justice of 

the Peace, Precinct 1, Place 2 at the same 

time. 

Attorney General Opinion WW-1359 at 6. 

Attorney General Opinion WW-1359 did not state that 

the offices of the justice of the peace, precinct 1, place 

1 and justice of the peace, precinct 1, place 2 were 

incompatible. The references as to incompatibility may 

have merely stated the usual rule on dual office holding, 

as background for the particular case under consideration. 

See. e.a., Attorney General Opinion O-902 (1939). 

The instance of dual office-holding under discussion 

in Attorney General Opinion WW-1359 does not in fact 

violate the common law doctrine of incompatibility as 

recognized in Texas. &= Attorney General Opinion JM-203 

(1904); Letter Advisory No. 114 (1975) and authorities 

cited therein. The two offices at issue in Attorney 

General Opinion. WW-1359 did not involve conflicting 

duties, subordination of one office to another or 

partially overlapping jurisdiction. There was instead .a 

virtual identity of the duties and jurisdiction of the two 

offices. If one person were to hold both place 1 and 

place 2 in the same justice precinct, the offices would in 

effect be consolidated, and place 2 would be abolished, in 

violation of the constitutional requirement that two 

justices of the peace be elected in precincts wherein a 

city of 8,000 was located. See Attorney General Opinion 

JM-174 (1984) (discussing 1983 amendment to article V, 

section 18, of the Texas Constitution, which increased 

city size to 10,000 and explaining role of commissioners 

court in determining city size). The provision of an 

extra justice in a precinct with a city of a certain size 

probably reflects the practical need for judicial services 

in an' area of population concentration. The time 

restraints that might prevent one person from doing two 

full-time jobs would be relevant in this case, although 

they are not relevant to common law incompatibility. 

m Attorney General Opinion V-303 (1947). In our 

opinion, Attorney General Opinion WW-1359 did not 

overrrule Attorney General Opinion O-2055 sub silentio, 

but instead dealt with a different dual office holding 

problem. We withdraw the overruling of Attorney General 

Opinion O-2055 by Attorney General Opinion JM-422. 

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Page 7 

Attorney General Opinion JM-422 Cites PeODle ex rel 

Goode11 v. Garrett, 237 P. 829 (Cal. Dist. Ct. App. 1925) 

and State ex rel. Knox v. Hadlev, 7 Wis. 700 (1860) as 

using reasoning similar to that in Attorney General 

opinion WW-1359 to hold that one person could not at the 

same time serve as a justice of the peace and a city judge 

with overlapping jurisdiction. The "justices of the 

peace" in these two cases were, however, elected from the 

same geographical area as the city judges. They were not 

justices of the peace elected by the voters of a county 

precinct. State ex rel. Knox V. Hadley determined that 

one person could not serve as "police justice" of the city 

and at the same time serve as a justice of the peace of 

that city. The city elected three justices of the peace 

who were ward officers, and a police justice who served 

the entire city. The court stated as follows: 

We consider that the two offices are clearly 

inCOmDatible with each other, and that one 

person cannot and should not hold both of 

them at the same time., In the plainest 

terms the charter gives the city four 

judicial officers of the grade of justice of 

the peace; while if the relator could make 

good his right to the office of police 

justice, it would in fact have but three. 

(Emphasis added). 

7 Wis. at 707. 

The court distinguished a Pennsylvania case which 

held that the offices of associate judge of common pleas 

and justice.of the peace were not incompatible, stating 

that it was not analogous to the present case. Id. 

(citing Commonwealth of Pennsvlvania v. Sheriff of 

Northumberland Countv. Pa., 4 Serg. & Rawl. 275). The 

court described the office of police justice and ward 

justice of the peace as incompatible, but it was their 

similarity, and not their conflicting duties, which 

prevented one person from holding both offices. State ex 

rel. Knox v. Hadley and Attorney General Opinion WW-1359 

both deal with the same kind of dual office holding, while 

the case before us is distinguishable. 

In Peonle ex rel. Goode11 v. Garrett, a California 

court concluded that one person could not serve as justice 

of the peace of Santa Monica township and at the same time 

as the police judge or "city justice of the peace" of the 

city of Santa Monica. 237 at 832. A township in 

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Page 8 

California is a legislatively created subdivision of a 

county with certain powers of local government. Peonle v. 

Tavlor, 120 Cal. Rptr. 762, 773, n. 21 (Cal. Ct. App. 

1975). When Peonle ex rel. Goode11 v. Garrett was 

decided, townships were the site of justices' courts. Id. 

The civil jurisdiction of the police court of Santa Monica 

was "coextensive with that of the Santa Monica township 

co~rt.~~ Peoole ex rel . Go ode11 v. Garrett, 237 P. at 829. 

VoextensiveB1 means "having the same spatial or temporal 

scope or boundaries." Webster's Ninth New Collegiate 

Dictionary 256 (1983). It is possible that the boundaries 

of the city court and township court coincided. &g 

aenerallv Fx oarte Romero, 278 P. 430 (Cal. 1929) 

(discussing distinction between township justice court and 

justice court of city having the same boundaries as 

township). 

Even if the city and township boundaries did not in 

fact coincide, the court did not regard any difference as 

important. In announcing its conclusion, the court said 

that "the people of Santa Monica, gBeakina of the nlace as 

both a citv and a townshin, are entitled" to two judicial 

officers, not to two courts presided over by the same 

person. 237 P. at 832 (emphasis added). Thus, the 

California case follows the pattern of State ex rel. Knox 

v. Hadlev and Attorney General Opinion WW-1359: the 

people of a single jurisdiction are deprived of two 

officers to which the statute entitles them. 

The California court's statements on what did not 

constitute incompatibility are noteworthy. It reviewed 

the qualifications for holding each office, the 

requirements as to when the courts had to be open to 

transact business, and the concurrent and exclusive jurisdiction of each court. It then stated: 

The foregoing will exhibit some of the 

differences between the two tribunals over 

which respondent now presides, and it must 

be admitted that under the many authorities 

bearing upon the subject thev nrobablv 

furnish little. if anv. weiaht in imnellinq 

to the view tha th offices are not 

COmDatible. (Hmihasiz %ed.) 

237 P. at 832. Thus, the concurrent jurisdiction of the 

two courts furnished "little, if any, weight" for the 

conclusion that the offices were incompatible. The court 

instead relied on a statute which provided that the 

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Page 9 

officers of a township included two justices of the peace, 

01, in townships containing cities in which police judges 

were elected, one justice of the peace. Id. The court 

concluded that the people of Santa Monica, speaking of it 

"as both a city and a township,11 were entitled to have two 

officers and not one officer exercising two offices. 

Attorney General Opinion WW-1359 is thus consistent 

with out-of-state cases protecting the residents of a 

single jurisdiction in their right to have the exact 

number of local judicial officers to which a statute 

entitles them. See also In re Corum, 62 P. 661 (Kan. 

1900) (statutory prohibition against one person holding 

office of police judge and justice of the peace at the 

same time); but see State ex rel. Crawford v. Anderson, 

136 N.W. 128 .(Iowa 1912) (one person could not serve as 

mayor-judge of incorporated city and as justice of peace 

of township not coextensive with city). The Attorney 

General Opinion WW-1359 moreover concerns two elective 

candidates. Thus, the voters' interest in having two 

justices in the precinct may also underlie the result in 

Attorney General Opinion WW-1359. 

The issue before us involves judicial offices of a 

city and of a county precinct. Neither the residents of 

the city nor the residents of the precinct can claim they 

are entitled to have two judicial officers or complain 

that they are served by one court instead of two. The 

geographical and subject matter jurisdiction of each court 

is sufficiently distinct that the two courts will retain 

their identity even though one person serves as judge of 

both. Thus, the problem addressed in Attorney General 

Opinion WW-1359 does not arise here. To the extent that 

Attorney General Opinion WW-1359 protects the interest~of 

voters, rather than of all residents, the present case is 

further distinguishable, since it concerns only appointed 

municipal judges. m Gov't Code 529.004. 

The legislature has enabled home rule cities and 

cities at certain population levels to increase the 

municipal court's capacity to serve the residents. Home 

rule cities may appoint alternate municipal judges or may 

establish additional panels or divisions of the municipal 

court to be presided over by an associate judge. Gov't 

Code 5529.004, 29.007. Cities of a certain population may 

establish additional municipal courts. Gov't Code 

§#2g.lol, 29.102; gee also Gov't Code 529.103 (city of El 

Paso may establish additional courts). The legislature 

has authorized many cities to increase the number of 

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Page 10 

judges serving in their municipal courts. Thus, these 

cities have the flexibility necessary to meet local needs. 

If a smaller city finds that it can serve local needs by 

appointing a justice of the peace to serve as part time 

municipal judge, we do not believe any legislation dehies 

it this method of fitting municipal court. services to 

local needs. &S Tex. Const. art. V, 518 (requiring "one 

Justice of the Peace" to be elected in each precinct); 

Gov't Code g29.004 (providing for election or appointment 

of the "judge of the municipal courtlO). The answer to the 

second question in Attorney General Opinion JM-422 is 

overruled. The doctrine of incompatibility does not 

prevent a justice of the peace from holding at the same 

time the office of part time municipal judge for a city 

located within the precinct. 

SUMMARY 

The doctrine of incompatibility does 

not prevent a justice of the peace from 

holding at the same time the office of part 

time appointed municipal judge for a city 

located within the precinct. The discussion 

of question 2 of Attorney General Opinion 

m-422 (1986) and its finding of incompatibility under these circumstances is overruled. The overruling of Attorney General 

Opinion O-2055 (1940) is withdrawn. 

JIM MATTOX 

Attorney General of Texas 

MARYRELLRR 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAKLRY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Susan L. Garrison 

Assistant Attorney General 

p. 3894