,




                   THE   AT                    ESERAI.




                              June 8, 1989



    Honorable Stanley R. Watson              Opinion No.     JM-1054
    County Attorney
    Hardeman County                          Re: Location of justice
    P. 0. Box 506                            of the peace offices in
    Quanah, Texas 79252                      Hardeman County (RQ-1688)

    Dear Mr. Watson:

         You advise that the office space used by the justice of
    the peace is presently  located in a building owned by the
    county that also houses the jail facility, the sheriff's
    office and offices of the local office of the Department  of
    Public Safety. Information furnished by you reflects that
    the sheriff wants the justic,e of the peace moved to the
    courthouse. ~This background has prompted your question   as
    to whether  the location of that office is within the
    province of the sheriff or the commissioners court.

         Section 292.004 of the      Local Government Code        provides
    in pertinent part:

                (a) The commissioners  ;;rt of a county
            may    provide,   inside         municipality
            designated as the county seat, an auxiliary
            courthouse,   a jail, a parking garage,      a
            facility for district, county, and precinct
            administrative   and   judicial offices    and
            courtrooms, or any facility related to the
            administration of civil or criminal justice.

         Information furnished by you reflects that the facility
    in question is known as the VVIaw Enforcement Building"     and
    the sheriff., "as keeper of the jail, *I feels he is authorized
    to determine who occupies the building.

         Section   351.041(a)   of     the    Local      Government    Code
    provides:

               The sheriff of each county is the keeper
            of the county jail. The sheriff shall safely
            keep all prisoners committed to the jail by a




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Honorable Stanley R. Watson - Page 2    (JM-1054)




        lawful authority, subject to an order of    the
        proper court.

     A justice of the peace is an elected constitutional
official.  Tex. Const. art. V, g 18.    You advise that the
justice of the peace conducts the business of his office,
including the trial of cases in the room he occupies.    The
fact that the justice of the peace has quarters in the same
building where the jail is located does not vest the sheriff
with authority to remove the justice of the peace from the
building.

     We next consider whether the sheriff is vested with
authority to determine  the location of the justice of the
peace under section 291.003 of the Local Government      Code
(formerly article 6872, V.T.C.S.).   Section 291.003 relates
to control of the courthouse, providing "the county sheriff
shall have charge and control of the county courthouse,
subject to the regulations of the commissioners court."    In
Anderson v. Wood, 152 S.W.2d 1084, 1086     (Tex. 1941), the
Texas Supreme Court construed      article 6872    (now Local
Government Code section 291.003), as follows:

           The above statute places the sheriff in
        charge and control of the court house merely
        for the purpose of keeping order and preserv-
        ing the property.     These dare ministerial
        duties that are in keeping with the duties of
        a peace officer.

In Attorney General Opinion O-4747 (1942), it was concluded
that the holding in Dodson v. Marshall, 118 S.W.Zd 621 (Tex.
Civ. APP. - Waco 1938, writ ref'd w.o.m.),         that the
commissioners court had discretionary     power to allow a
person to operate a cold drink stand in an unused alcove  in
the courthouse was not authority for the sheriff to exercise
the same power.     Neither section 291.003 nor      section
351.041(a) vests the sheriff with authority to determine the
location of the offices of the justice of the peace or of
other precinct  or county officials    in the courthouse  or
other buildings  operated by the county for its official
business.

     Article V, section 18 of the Texas         Constitution
provides that the commissioners  court "shall exercise   such
powers and jurisdiction over all county business,      as is
conferred by this Constitution and the laws of the State, or
as may be hereafter     prescribed.*'  In Cosbv v. County
Commissioners of Randall Countv, 712 S.W.Zd 246 (Tex. App. -
Amarillo 1986, writ ref'd n.r.e.), it was noted that in the




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Honorable Stanley R. Watson - Page 3       (JM-1054)




exercise of powers conferred upon the commissioners     court,
the court has implied authority to exercise         a    broad
discretion to accomplish the purposes     intended.   Section
291.001 of     the Local    Government  Code   requires    the
commissioners court to provide a courthouse and offices    for
county officers. See also Koehler v. Earl, 14 S.W. 28 (Tex.
1890) ; Alexander v. Svoboda, 297 S.W. 560 (Tex. Civ. App. -
Galveston 1927), rev'd on other qrounds, 3 S.W.2d 423    (Tex.
1928) (justice court terms held at times and places desig-
nated by commissioners court).    The commissioners court is
the active governing body of the county and has at least the
implied authority to regulate the use of the courthouse    and
other county buildings. See Dodson v. Marshall, sunra.      It
follows that the commissioners court has the authority      to
determine whether the office of the justice of the peace
shall be located in the courthouse or other county owned
buildings.

                       SUMMARY

             The location of the quarters      in the
        courthouse or  county owned  buildings   where
        the justice of the peace conducts trials and
        the business of that office is within the.
        province  of the    commissioners  court    of
        Hardeman County.              I



                                 J                iil?&t
                                   Very truly you

                                           A
                                   JIM     MATTOX
                                   Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Tom G. Davis
Assistant Attorney General




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