.   .
                  Tam          r%mro~c~~~               GENERAI~
                                     OF       TIF,xAs

                                AWN-I-IN.     TRXAS     76711



                                            January 9, 1974



    The Honorable Robert W. Gage                          Opinion No. H- 202
    County Attorney
    Freestone County                                      Re:   Justice of the peace retirement
    Fairfield, Texas 75840                                      benefits, qualification for office
                                                                by filing of bond, and compen-
                                                                sation for recording vital
                                                                statistics and conducting
                                                                inquests.

    Dear Mr.   Gage:

         Your request       for an opinion poses the following questions:

                 1. May a man retired as a justice of the peace in
                 Ector County and receiving an annuity under the Texam
                 County and District retirement syrtem become justice
                 of the peace in Freestone County and still receive his
                 retirement earned in Ector County?

                 2. What im the lamt date an elected official may qualify
                 for office by filing his bond and oath?

                 3. Must the county pay the justice8 of the peace for
                 recording vital statistics and holding inquests under the
                 new salary system now in effect?

         As a backdrop for the first question you advise that:

                        “A man who is now age 70 retired as the Justice of
                 the Peace[for]Ector  County in 1970, [and] elected to receive
                 an annuity under the Texas County and District Retirement
                 Syrtem.   In 1972 he ran for . . Justice of the Peace. . in




                                               p. 950



                        .                       .
The Honorable Robert W. Gage, page 2 (H-202)




            Freestone County. Freestone County was not at
            that time a member of the aforementioned retirement
            system; however, on January 1, 1973, Freestone
            County did become a member of the system. ‘I

    You further advise that the man in queetion was elected.

     Article 16, Section 62 (c) of the Texas Constitution authoriees the Legislature
to “enact appropriate laws to provide for a System of R&irement, Disability and
Death Benefits” for employees and officers of a county or political subdivision.
That section does not however. authorize the Legislature to set mandatory ratire-
ment ages for such officers.

     The statute enacted to implement Article 16 4 62(r) andwhich sets up the
permitted system and prescribes its membership (Article 6228g, V. T. C. S. )
provides in part:

                  “Sec. 7. (l)(d) Any member who has accepted
            service retirement’ rhall be ineligible and disqualified
            to resume or continue lrervice in any par.ticipatiq
            subdivision. ‘I

     The facts you recite indicate the man has “accepted~ service retirement”
within the meaning of the above statutory proviaion.   Service in the new Justice
of the Peace post would be “service in any participating~ subdivision. ”

     Your first question has to do only with the receipt of retirement benefits
earned in Ector County after becoming Justice of the Peace in Freestone County.
You do not ask about the individual’s subsequent participation in the retirement
system and we do not reach such matters in this opinion.

     The question assumes that retirement from the prior office is no legal
impediment to the election of the person as Justice of the Peace in Freestone
County. We need not explore the validity of that assumption. here.        Whatever
is the intent of Section 7(l)(d) in that regard, it does not purport to cause a loss
of prior-earned benefits as a penalty for resuming or continuing service in a
participating subdivision.




                                    p.   951
The Honorable Robert W. Gage, page 3 (H-202)



    We have found no provision   which would cause persons entitled ,to
Standard or Optional Service Retirement Benefits under tbc statute (which we
understand is the case here) to lose such benefits on the happening of any
contingency other than death (or in tbe~case of some annuities. the passage
of time).  There are different provisions for Disability Retirement Benefits,
but, from the facts you have given us, disability benefits are not involved.

     Accordingly it is our opinion that a man refired as Justice of the Peace
in Ector County who receiver an annuity under the Texas County and District
Retirement System, and who f ater becomes a Justice of the Peace in Freeetone
County, may still receive retirement benefits earned from E&or County
service, notwithstanding the provisions of Section 7 (l)(d) of Article 62286,
V. T. C. S.

    Your second question asks about the date of qualification for office.

     The last date on which an elected official may qualify for office must be
determined from the constitutional and statutory provisions applicable to the
particular office.  Article 17, V. T. C. S., providnwin part:

                  “The regular terms of office for . . . ‘county and
            precinct offices. . . shall begin on the first day of
            January next following the general election at which said
            respective offices are regularly filled, and those who
            are elected to regular terms shall qualify and assume the
            duties of their respective offices on the first day of
            January following their election, or as soon thereafter
            as possible . . . . I’

    Article 16. Section 17, Texas   Conatftution providee:

                   “All officers within thie State shall continue to
            perform the duties of their offices until their successors
            shall be duly qualified. I’

    At 47 Tex.   Jur. td 52, Public Officials   s 35, it is stated:

                  “Statutes fixing the time for qualifying are generally
            regarded as directory only; and as a rule the failure to




                                    p.   952
The Honorable Robert W. Gage, page 4 (H-202)




            qualify within the time prescribed does not create a
            vacancy in the office unless the statute so provides.  But
            it has been said that this rule was made to cover cases
            where the officer cannot, for some good reason beyond
            his own control, qualify within the time prescribed,  and
            it will not be extended to cases where there is a neglect
            or refusal to qualify; and where the officer seeks an
            extension of the prescribed time he .must show an
            extraordinary reason the,refor. ”

    Generally, such questions are controlled by the particular facts involved.
See Flatan V. State, 56 Tex. 93 (lgb2); Attorney General Opinion O-3047 (1941).

     Your remaining question asks about payments to Justices of the Peace
for recording vital statistics and~holding inquests.

     Article 4477, V. T. C. S.,   governs the recording of vital statistics.   Rule
36a thereof provides in part:

                   “It is hereby declared to be the duty of the justice
            of the peace in the justice of the peace precinct and
            the city clerk or city secretary in the city of two
            thousand, five hundred (2, 500) or more population to
            secure a complete record of each birth, death and still-
            birth that occur8 within their respective jurisdictions. I’

Rule 52a thereof sets forth the duty of such local registrars     to record vital
statistics, and the procedure to be followed therein.

     Article 49.01, Vernon’s Texas Code of Criminal Procedure, makes it
the duty of the justice of the peace to hold inquests in the therein enumerated
casecl.

     Article 16, Section 61, Texas Constitution, as amended in November, 1972,
requires that justices of the peace now be compensated on a salary basis.    The
salary, as established by the commissioners     court in accordance with the
applicable statutes, is the entire compensation due the justice of the peace for
performance of his constitutional and statutory duties. See Attorney General
Opinion H-35 (1973).




                                     p. 953


             Y
                                       ..
.   *



        The Honorable Robert W. Gage, page 5 (H-202)




             The recording of vital rtatistics and holding of inquerts being statutory
        duties, in our opinion, a justice of the peace ir entitled to no additional compen-
        sation for the performance thereof, beyond his established salary.

                                          SUMMARY

                    1. A person retired as Justice of the Peace in one County
            who receives standard or optional service retirement benefits under
            Article 6228g, V. T. C. S. and who thereafter becomee a Justice of
            the Peace of another County may lawfully continue to receive retire-
            ment benefits earned from his previous service.

                     2. The last date upon which an elected official may qualify
            for office must be determined from the Constitutional and statutory
            provieions applicable to the particular office.

                     3. A Justice of the Peace is entitled to no additional
            compensation beyond his lawfully established salary for recording
            vital statistics or holding inquests pursuant to statutory duties.

                                                       Yours very truly,




        Opinion Committee




                                          p. 954
