                                          The Attorney                  General of Texas
                                                                 December    31,   1982

MARK WHITE
Attorney General


                                        Honorable Mike Westergren                               Opinion     No.   MW-589
Supreme      Court Building
                                        Nueces County Attorney
P. 0. BOX 12546
                                        Courthouse,   Room 206                                  Re:    construction         of article
Austin,    TX. 76711. 2546
512,475.2501                            Corpus Christi,   Texas   78401                         1.83 of the Texas          Family Code
Telex    9101874-1367                                                                           (persons   authorized        to conduct
Telecopier     5121475.0266                                                                     marriage   ceremony)

                                        Dear Mr. Westergren:
1607 Main St.. Suite 1400
Dallas, TX. 75201-4709
2141742-6944                                  You have asked whether a person who served as a justice      of                       the
                                        peace for more than 15 years and then became a county commissioner                           is
                                        authorized  to perform marriage    ceremonies   under section 1.83 of                       the
4624 Alberta       Ave., Suite    160
                                        Texas Family Code.    That section  provides  in part:
El Paso, TX.       79905.2793
915/533-3464
                                                        (a)      The following   persons          are     authorized    to
                                                    conduct      marriage ceremonies:
1220 Dallas Ave., Suite          202
Houston,   TX. 77002.6966
7131650.0666
                                                        .. . .

                                                               (4)   justices     of the supreme court,           judges
806 Broadway,        Suite 312                          of the court of criminal             appeals,     justices      of
Lubbock.  TX.       79401.3479
                                                        the courts     of appeals,       judges    of the district,
8061747-5236
                                                        county,     and probate         courts,      judges      of   the
                                                        county     courts     at    law,     courts      of    domestic
4309 N. Tenth. Suite B                                  relations    and juvenile       courts,    retired     justices
McA,,en,     TX. 76501-1665                             and judges       of   such courts,        justices       of   the
5121662.4547
                                                        PfSlCl?, retired       justices       of   the     peace,     and
                                                        judges and magistrates          of the federal       courts     of
200 Main Plaza. Suite 400                               this state.
San Antonio.  TX. 76205.2797
5121225-4191                                             (b)   For    the   purposes    of    this     section,        a
                                                    retired    judge of a county       court,     probate      court,
An Equal       Opportunity1                         county court at law, court of domestic               relations,
Affirmative      Action     Employer                or juvenile       court   or a retired       justice      of    the
                                                    peace is a person who has an aggregate             of at least
                                                    15 years      of service     as judge     of any court           or
                                                    courts    or as justice       of the peace        and who has
                                                    ceased   to serve in that capacity.            The person        is
                                                    considered      as retired     in the capacity          of    last
                                                    SWVLX.       (Emphasis added).

                                        In your   request     letter,   you stated        as follows:




                                                                        p.    2188
Honorable     Mike Westergren        - Page 2        NW-589)




              Just what interpretation                is to be given           to the
              last    sentence      [of subsection         (b)]     is the precise
              question....           In      the    context       of     the    entire
              paragraph       the last sentence         takes on at least           two
              possible      interpretations.           One, does it mean that
              no matter        how many years          one served         in a named
              judicial      capacity       that if he served           in any other
              capacity      after     ceasing     in such judicial           capacity
              he would not thereby be considered                   ‘retired     in the
              capacity’       of such judicial          service?         Or, second,
              does the last sentence              simply provide         guidance    as
              to what capacity           one is retired         in, if they have
              combined       service      in one or more named judicial
              capacities       including       that of justice         of the peace
              in order       to arrive        at the full       fifteen      years of
              service     required      by sub-section        1.83....

       There are three reasons why, in our view,              the second of your two
suggested     interpretations     is   clearly      the correct      one.     The first
reason    involves     the word “capacity.”           In our opinion,        it   is not
coincidental     that the legislature       used this word in the last sentence
of subsection      (b) and in the preceding       sentence.      The fact that it did
indicates    that it meant for the word to have the same meaning in both
contexts.      In other words,     the “capacity”       to which the last sentence
refers    is one of the judicial          “capacities”      named in the preceding
sentence.      We note that if this were not the case,               a question     would
arise    as to what the word does mean in the context                     of    the last
sentence.      Read broadly   enough,    it could embrace virtually          any office
or employment.

      The second        reason     involves       legislative       intent.       Under section
1.83,    a person      who serves        in more than one of the named judicial
capacities      may accumulate         the 15 years          of judicial       service    that he
needs     to    be   “retired”       within       the    meaning       of   this     section    by
aggregating      his years of service            in each capacity.          Without guidance,
however,      one could     not know in which judicial                  capacity     such person
would be deemed to have retired.                 We believe       the legislature       added the
last    sentence     in subsection           (b)    to provide         such guidance.         This
sentence     makes it clear        that a person who served in more than one of
the named judicial         capacities      and who satisfies          the criteria      set forth
Ian subsection      (b) shall       be deemed to have “retired”                in the judicial
capacity      in which he last          served.       Thus, a person who served               as a
probate     court judge for 20 years and then served as a justice                           of the
peace for one month would be a “retired                     justice     of the peace” within
the meaning of subsection            (a)(4).

       The third    reason   also    involves      legislative       intent.  Under the
first    of your suggested    interpretations,         a person who served in one or
more of      the named judicial         capacities       could    not be a “retired”
justice,     judge,   or   justice     of   the     peace     within     the meaning of




                                               p.   2189
Honorable     Mike Westergren       - Page 3      (MW-589)




subsection       (a)(4)    if he later      served in some "capacity"            which is not
listed     in that subsection          and then retired         in that capacity.            This
would be true even if he served                   in the latter     capacity     for one day.
Since     we can perceive          no reason         why the     legislature       could     have
intended      such an illogical          result,     we reject     this interpretation         as
implausible.          We believe       that      it  would    defeat      the   legislature's
objective      in enacting      section     1.83,    whereas the other        interpretation
is entirely         consistent    with     that objective.          See Citizens        Bank of
Bryan v. First State Bank of Hearne, 580 S.W.2d 344 (Tex. 1979) (where
statutory      language      susceptible       to two constructions,           one of which
would carry out and the other defeat                   its manifest      purpose,     it should
receive     the former construction).

      In the example      that you provided,     the individual    in question
served as a justice    of the peace for 15 years and is no longer serving
in that capacity.    As we construe     the last sentence   of subsection   (b),
his "capacity   of last service"     is justice  of the peace.    We therefore
answer your question     in the affirmative.

                                        SUMMARY

                  A person who served as a justice        of the peace
              for more than 15 years       and then became a county
              cormnissioner    is authorized     to perform   marriage
              ceremonies    under section    1.83 of the Texas Family
              Code.




                                                       MARK         WHITE
                                                       Attorney    General of     Texas

JOHN W. FAINTER, JR.
First Assistant Attorney          General

RICHARD E. GRAY III
Executive Assistant         Attorney    General

Prepared    by Jon Bible
Assistant    Attorney  General

APPROVED:
OPINION COMMITTEE

Susan L. Garrison,        Chairman
Jon Bible
Rick Gilpin
Jim Moellinger




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