October30,1987

Honorable J. Collier Adams, Cochran County Attorney 109West 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 ofthe 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 aperson appointed justice ofthe peace may serve simultaneously aspart time appointed municipal judge for a city located in the precinct. Attorney General Opinion JM-422 concluded that the common lawdoctrine of incompatibility prevented a justice ofthe peace from serving as amunicipal 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, ofthe Texas Constitution provides that ajustice of the peace shall be elected in each of the precincts intowhich a county is divided, except that two justices ofthe peace shall be elected in any precinct inwhich there isa city~of 18,000 ormore inhabitants. See Attorney General Opinion JM-174 (1984). Article V, section 19, ofthe Texas Constitution provides that:

Sec. 19. Justice of the peace courts

shall have original jurisdiction incriminal matters ofmisdemeanor cases punishable by fine only, exclusive jurisdiction in civil matters where the amount incontroversy is

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two hundred dollars or less, and such other

jurisdiction asmay beprovided by law.

Section 29.002 of the

. . - . . . Government Code creates a municipal court ineacn incorporated municipality. The municipal court has exclusive original jurisdiction within the territorial limits of the city ofall criminal cases arising under the city's ordinances and punishable by
afine 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 ofthe Government Code to give municipal court jurisdiction in forfeiture of bail bonds and personal bonds taken incriminal cases ofwhich the court has jurisdiction). Section 29.003(b) of the Government Code states the municipal court's concurrent jurisdiction with the justice court:

(b) Themunicipal court has *concurrent jurisdiction with the iustice court of a precinct in which the municinalitv is located inall criminal cases arising under state law that:

(1) arise within the territorial limits **of** themunicipality; and

(2) are punishable only by a fine not toexceed $200. (Emphasis added.)

Gov't Code 529.003(b). Attorney General Opinion JM-422 concluded that the concurrent jurisdiction of the justice court and themunicipal court ofacity located within the justice precinct made the two offices incompatible. This conclusion did not apply toan individual who serves as municipal judge ofa city located inone county precinct and asa justice ofthe peace inanother precinct. See aenerally Gov't Code 529.064(a) (municipal judge ofhome 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 ofrecord need not be resident of city). Attorney General Opinion JM-422 addressed the question asked, and its answer was limited to the circumstances stated inthat question.

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Turning to your request for reconsideration, we believe that this opinion incorrectly applied the test for incompatibility tothe holding 

### ofthese two offices. The
common lawdoctrine of incompatibility prevents one person from holding two offices ifthe duties are inconsistent or inconflict, or ifone office issubordinate tothe other. Thomas v. Abernathv Countv Line Indenendent School Diski&, 290 S.W. 152 (Tex. Comm'n App. 1927, judgment adopted). Attorney General Opinion JM-~422described 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). Ifone person acted as both justice ofthe peace and city judge at the
same time, itwould bewithin his power to manipulate the income ofthe courts over which he presided to the advantage or disadvantage of either the county or the city --toboth ofwhich hewould owe aduty ofcollection. The reason is, justices of the peace are required toaccount 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 ofthe court in favor ofthe other court, the 'justice of the peace/city judge' could enrich one governmental entity atthe expense of the other, depending, perhaps, onwhich of. them used such fees to compensate the officer collecting them. m Attorney General Opinion C-718 (1966).

It isnot 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 ofthe Code ofCriminal Procedure, which provides:

When two or more courts have concurrent .jurisdiction of any criminal offense, the

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court inwhich an indictment ora complaint

shall first be filed shall retain jurisdiction except as provided in Article 4.12 [precinct inwhich defendant isto be tried in justice court].

Code Crim. Proc. art. 4.16. Flores said that the first court legally taking jurisdiction ofan offense continues to have exclusive jurisdiction thereof, but the jurisdiction can be voluntarily surrendered by dismissal ofthe charge, and the second court may proceed to try the alleged offender. Itpointed out that article 4.16 ofthe Code of Criminal Procedure was intended toprevent any confusion or contention between different courts having concurrent jurisdiction.

On reconsideration, we do not believe that the offices ofmunicipal judge and justice of the peace are rendered incompatible byvirtue ofarticle 4.16 of the Code ofCriminal Procedure. The judge does not control the filing ofacomplaint. The complainant, who may bea law enforcement officer, a prosecutor, or a private citizen, files the complaint and determines which oftwo courts with concurrent jurisdiction will have jurisdiction ofthe case. u Code ofCrim. Proc. arts. 2.13, 15.04, 15.05, 45.01, 45.13, 45.16, 45.17. See, ea General Opinion C-718 (1966); O-3969 (1941): " Attorney

Tomanipulate 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. Ifhe did so, hewould not infact beperforming the duties ofeither office. The legally required duties of the offices are not in'conflict despite the possibility of such conduct onthe part ofthe officeholder.

None of the authorities cited inAttorney General Opinion JM-422 state reasons why the concurrent jurisdiction oftwo courts would bring the duties ofthe 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 (toMr. A.C. Dunn, March 14, 1913); Attorney General Opinion (toHon. 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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municipal court did not render the because:

Neither office isaccountable

dominion of, or subordinate

... . .. offices incompatible

to, under the tothe other: Deitner nas anv riant orDower 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 toother courts. (Emphasis added.)

Attorney General Opinion O-2055 (1940).

Attorney General Opinion JM-422 gave another reason for concluding that amunicipal judge could not serve asa justice of the peace with concurrent jurisdiction. It relied onAttorney General Opinion WW-1359 (1962) which held that one person might not hold the office of justice ofthe peace, precinct 1, 1 and the office of justice.of the peace, place

time. precinct 1, place 2 atthe 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 ofthe 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. Butwe have
no case which holds that one person may hold the two offices 

### ofJustice of the Peace within the sameprecinct atthe same time. Section 10,Article V,Texas Constitution, states that inJustice precincts in which there may be acity 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 ofthe Peace inPrecinct 1may be reduced toa single Justice ofthe 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 sotodo,
wemust construe Sec. 40,Art. XVI, and Sec. 18,Art. V, Texas Constitution, together, and hold that while aJustice ofthe Peace

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may hold some other office not incompatible

with the office ofJustice ofthe Peace, he may not hold the offices ofJustice of the Peace, Precinct 1, Place 1 and Justice of the Peace, Precinct 1, Place 2at the same time.

Attorney General Opinion WW-1359 at 6.

Attorney General Opinion WW-1359 did not state that the offices ofthe justice ofthe peace, precinct 1,place 1and 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,
asbackground for the particular case under consideration. See. e.a., Attorney General Opinion O-902 (1939).

The instance ofdual office-holding under discussion inAttorney General Opinion WW-1359 does not in fact violate the common law doctrine of incompatibility as recognized inTexas. &= 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 ofthe duties and jurisdiction ofthe two offices. If one person were to hold both place 1 and place 2inthe same justice precinct, the offices would in effect be consolidated, and place 2would be abolished, in violation of the constitutional requirement that two justices ofthe peace be elected inprecincts wherein a city of 8,000 was located. See Attorney General Opinion JM-174 (1984) (discussing 1983 amendment toarticle V, section 18, ofthe Texas Constitution, which increased city size to 10,000 and explaining role ofcommissioners court in determining city size). The provision of an extra justice inaprecinct with acity of acertain 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 inthis 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 adifferent dual office holding problem. Wewithdraw the overruling of Attorney General Opinion O-2055 byAttorney General Opinion JM-422.

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Attorney General Opinion JM-422 Cites PeODle exrel 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 tohold that oneperson could not atthe same time serve asajustice ofthe peace and acity judge with overlapping jurisdiction. The "justices of the peace" inthese two cases were, however, elected from the
same geographical area asthe city judges. They were not justices ofthe peace elected by thevoters of acounty precinct. State ex rel. Knox **V.** Hadley determined that
one person could not serve as "police justice" 

### ofthe city and atthe same time serve asa justice ofthe 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 ofthe grade of justice of the peace; while if the relator could make good his right to the office of police justice, itwould in fact have but three. (Emphasis added).

7Wis. at 707.

The court distinguished aPennsylvania case which held that the offices ofassociate judge of common pleas and justice.of the peace were not incompatible, stating that it was not analogous tothe 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 ofthe peace as incompatible, but itwas their similarity, and not their conflicting duties, which prevented one person from holding both offices. State ex rel. Knox v.Hadley andAttorney General Opinion WW-1359 both deal with the same kind ofdual office holding, while the case before us isdistinguishable.

InPeonle ex rel. Goode11 v.Garrett, a California court concluded that one person could not serve as justice ofthe peace ofSanta Monica township and at the same time
asthe police judge or "city justice ofthe peace" ofthe city of Santa Monica. 237 at 832. A township in

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California is alegislatively 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 ofthe police court of Santa Monica
was "coextensive with that of the Santa Monica township co~rt.~~ Peoole exrel.Goode11 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 ispossible that the boundaries ofthe 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 ifthe city and township boundaries did not in fact coincide, the court did not regard any difference as important. Inannouncing its conclusion, the court said that "the people ofSanta Monica, gBeakina of the nlace as both acitv and atownshin, are entitled" to two judicial officers, not to two courts presided over bythe 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 towhich 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 towhen the courts had to be open to transact business, and the concurrent and exclusive jurisdiction ofeach court. Itthen 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 themany authorities bearing upon the subject thev nrobablv furnish little. ifanv. weiaht in imnellinq to the view tha th offices are not COmDatible. (Hmihasiz %ed.)

237 P.at 832. Thus, the concurrent jurisdiction ofthe 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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officers ofatownship included two justices ofthe peace, 01, intownships containing cities in which police judges
were elected, one justice ofthe peace. Id. The court concluded that the people ofSanta Monica, speaking of it "asboth acity and atownship,11 were entitled tohave two officers and not one officer exercising two offices.

Attorney General Opinion WW-1359 isthus 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 Inre Corum, 62 P. 661 (Kan. 1900) (statutory prohibition against one person holding office ofpolice judge and justice of the peace at the
same time); but see State ex rel. Crawford v. Anderson, 136N.W. 128 .(Iowa1912) (one person could not serve as mayor-judge of incorporated city and as justice ofpeace oftownship not coextensive with city). The Attorney General Opinion WW-1359 moreover concerns two elective candidates. Thus, the voters' interest in having two justices inthe precinct may also underlie the result in Attorney General Opinion WW-1359.

The issue before us involves judicial offices of a city and ofa county precinct. Neither the residents of the city nor the residents ofthe precinct can claim they
are entitled tohave two judicial officers or complain that they are served by one court instead oftwo. The geographical and subject matter jurisdiction ofeach court issufficiently distinct that the two courts will retain their identity even though one person serves as judge of both. Thus, the problem addressed inAttorney General Opinion WW-1359 does not arise here. Tothe extent that Attorney General Opinion WW-1359 protects the interest~of voters, rather than ofall residents, the present case is further distinguishable, since itconcerns 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 ormay establish additional panels ordivisions of themunicipal court tobe presided over by anassociate judge. Gov't Code 5529.004, 29.007. Cities ofacertain population may establish additional municipal courts. Gov't Code §#2g.lol, 29.102; gee also Gov't Code 529.103 (city ofEl Paso may establish additional courts). The legislature has authorized many cities to increase the number of

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judges serving intheir municipal courts. Thus, these cities have the flexibility necessary to meet local needs. Ifasmaller city finds that itcan serve local needs by appointing ajustice ofthe peace to serve as part time municipal judge, wedonot believe any legislation dehies itthis method of fitting municipal court.services to local needs. &S Tex. Const. art. V, 518 (requiring "one Justice ofthe Peace" to be elected ineach precinct); Gov't Code g29.004 (providing for election orappointment ofthe "judge ofthemunicipal courtlO). The answer tothe second question in Attorney General Opinion JM-422 is overruled. The doctrine of incompatibility does not prevent ajustice of the peace from holding at the same time the office ofpart time municipal judge for acity located within the precinct.

SUMMARY

The doctrine of incompatibility does not prevent a justice of the peace from holding atthe same time the office of part time appointed municipal judge for a city located within the precinct. The discussion ofquestion 2of Attorney General Opinion m-422 (1986) and its finding of incompatibility under these circumstances is overruled. The overruling ofAttorney General Opinion O-2055 (1940) iswithdrawn.

JIM MATTOX Attorney General ofTexas

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

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