                      THEA~TORNEYGENERAL
                               OF TEAXAS
                              Aumrm 11.
                                      TEXAS

Honorable A.#.        Uychc
County Auditor
oFQ=    COUJlty
Longview,     Texas

Bear   Sir:                        Opinion No. O-4457
                                   Ret (1) Does Ind.uctIon into the army under
                                         the draft law of the justice     of the
                                         pdace of Precinct    No. 1, Oregg County,
                                         Texas, create a vacancy cbn the office
                                         of such justice    of the peace?
                                         )2)   Is a justice   of the peace a judge
                                         of a ‘court of record” as the term “court
                                         of record” Is used In the Selective
                                         Service Act, exempting a judge of a court
                                         of record from the requirements     of said
                                         act?

               Pour latter of lnq*y,   dlreated  to this department,  dated
February      25, 1942, omitting  the formal parts,  Is set out as follows:
              “The Justice  of the Peace of Precinct No. 1 of Gregg
       County, Texas, Is within the draft age and has been placed
       In Class 1-A with the paorpect of immediate Induction          Into
       the Army. Please advise me uhether or not his beY.ng In-
       ducted Into the Army under the draft law creates         a vacancy
       In thQ OffiCQ    of Justice  of the Peace    of Precinct  NO.  1,
       &egg County, Texas.       If this question Is answered In the
       affIrraatIvQ,   will I have authority     to pay the salary until
       expiration    of the term of office?
              ‘In view of the     draft act exempting a Judge of a Court
       of &cords,     will you    likewise advise me fhether or not the
       office    of the Justlce     of the Peace is a Court of Records
       within    the meaning of     this law.”
             In opinion No. o-3448,      addressed to the Honorable Fred Morris,
County Auditor, Folk County, Livingston,          Texas, this Department   follow-
1~ Article      5, Section 24, of the Constitution      of Texas, And fo~lowlng
also the opinion     of the court in the case of Hamilton v. King (Texas
@Iv11 Appeals, 1918),       204 S.Y. 353,   held that the induction   of a coz”,y
attorney    Into the army did not create a vacancy In such offi,ce.
Article   5, Section 24, of the Constitution        of the State of Texas, also
Includes justices      of the peace in Its terms, we believe      that the opinion
above referred     to sufficiently     ansuers your question regarding the
vacancy, and that followlng        this opinion snd In accordance with the
holding of the court, your first         question should be answered In the nega-
tive,   that is, that the induction       into the army of the justice   of the
peace, referred     to in your letter,     does not create a vacancy Ln such
office.     A copy of this opinion Is attached hereto for your information.
Honorable    R.8.   Myoh@,     p4e     2                                         o-4457


           Rowever, this OPiniOn also rQlatQ8 t0 Other m&tQrs,      such as
the rI.Sht Of thQ OOUllty attOl’l3Qy t0 lppOInt dQpUtiQs Or a6sistaM.S  to
raplace him during hIQ lbsQnCQ uhI1~ he is In the army, and you ara not
to Infer that this dQpal+nQnt intdnds to extend suoh part6 of this
Opinionto apply to jU8tiCQQ    0r thQ PQQCQ.   No rQquert for a ruling on
thQsQ matter8 warn made by you and WQ do not rule on them at this t&Q.
            In MswQr to your seoond question relating      to whether or not
a jUQtiCQ   0r the peaca 1s a judga 0r a “court 0r record”,     aQ  that  term
Is used In the BQlQOtiVQ   QQWiCQ    and trainInS act Of 1940, as amended,
wQ quote below the applicable     provIsIons  0r such Selective   Service Act
as r0ii0wQ8
              “Selective     service       and training      act of 1940,      as amended.

              “Sec. 5 (c) (1)   The Vice-President  of the United States,
      the Governors, and all other state officials      chosen by the
      voters of the entire state, of the several states and terrl-
      tories,    members of legislative   bodies of the United States
      from the several states and territories,      Judge8 of the courts
      of record of the United States and of the several states arll
      territorlea    and the District   of Columbia, shall,  while hold-
      ing such offices    be deferred from training and service    under
      this act In the land and naval forces of the United States.”

          The earliest decision we find In the reported case8 touching
upon the question of whether or not the justice court Is a court of
record 1s Xx Parts Lee Quong 31 S.W. 391, wherein the Court of Criminal
Appeals of Texas had the foliowing bo eayr
              *The justices’.  courts are not courts of record. Their
         judgments are pronounced ore tenus, and the entry thereof
         Is a mere mbIiStQriai   act.’

              Butcherson     v. Blewett, 58 S.W. 153, Court of Civil                 Appeals     of
Texas,     In an opinion     had the following to say:

            ‘Uhere onQ appeals from a Justice court by making, In
      lieu of an appeal bond, affidavit   of Inability allowed by
      Revised Statutes,  Artlale 1671, which provides Its may be
      made before the court trying the aase within ten days of
      judgment, he may show by parole that the court was In
      session when the affidavit   was made and filed, justice courts
      not being courts of record.”
           The latest decision we are able to find                     following this line
of reasoning is that of the Commission of Apprals                      of the Supreme Court
of Texas, which In 1933 heid as followsr
                “Justice’s  courts are not courts of record,   having
         no seal to authenticate    process.n   Warren v.BArron Bros.
         Millinery    Co., 23 S.W. (2d) 686; 118 Tex. 659.
              And In 26 Tex.      Jur.,      p. 803,      Sec.   17, we find    the following:
' HonorablQ   R.8.   bOhQ,    PWQ 3                                  o-4457


              Vhlefly,  It 8aam8 for thQ rQaQ0n that jurtlce    courts
        have no sea l to luthQ!iicate their proccIa,   it ha8 been
        decided that thQy al-e not CoUl'tO Of I'QC0l-d."
             In view 0r the foregoing, you are respectfilly  advised that
  it is the opinion 0r this Department that judgss 0r justice   courts ar'c
  not judges 0r “aourts of record” a8 that term Is used In the Selective
  Service  kt sf 190,   as amended.

              We trust    that we have satisfactorily    answered   your
  inquiry,
                                          Yours very truly,
                                          ATTORNEX GRNE.HAL
                                                          OF TEXAS
                                          By a/Robert F. Cherry
                                               Robert F. Cherry
                                               Asslatant

  FtFcxANM:wc
  Enclosure

  APPROVEDMAR16 1942
  a/ OROVERSlZLLEki
  FIRST ASSISTANT
  a!ToFlNm ct8NRRJul

  Approved Opinion       Connnlttee by s/BvB Chairman
