                       October 30, 1987




Honorable J. Collier Adams,         Jr.      Opinion   No.   JM-819
Cochran County Attorney
109 West Washington                          Re:   Reconsideration      of
Morton, Texas    79346                       Attorney   General Opinion
                                             JM-422: Whether the same
Honorable   Gale Warren                      person    may     serve
Erath County Attorney                        justice of the peace a::
Courthouse                                   part     time      appointed
Stephenville,   Texas      76401             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      this question,
and considering   legal    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




                                   p. 3885
Honorable   J. Collier Adams,      Jr.      (JM-819)
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 circum-
stances stated in that question.




                                  p. 3886
Honorable     J. Collier Adams,        Jr.    (JM-819)
Honorable     Gale Warren
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




                                  p.   3887
Honorable   J. Collier Adams,         Jr.     (JM-819)
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       Attorney
General Opinion C-718 (1966); O-3969         (1941):    "

      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




                                 p.    3888
.

    Honorable     J. Collier Adams,         Jr.   (JH-819)
    Honorable     Gale Warren
    Page 5



    municipal      court   did   not render       the offices     incompatible
    because:

               Neither office is accountable     to, under      the
               dominion of,    or subordinate
                                  . .            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, place     1 and the     office    of
    justice.of     the peace,    precinct    1, place 2 at the       same
    time.   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




                                      P.   3889
Honorable     J. Collier Adams,      Jr.   (JH-819)
Honorable     Gale Warren
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.




                                    p. 3890
Honorable     J. Collier Adams,    Jr.      (JM-819)
Honorable     Gale Warren
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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Honorable    J. Collier Adams,           Jr.     (JN-819)
Honorable    Gale Warren
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     juris-
diction 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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Honorable   J. Collier'Adams,      Jr. “(J11-819)
Honorable   Gale Warren
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




                                  p. 3893
Honorable    J. Collier Adams,         Jr.      (X4-819)
Honorable    Gale Warren
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        incompati-
        bility under    these circumstances        is   over-
        ruled.    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
