                                      August   29,   1974


The Honorable Maurice S. Pipkin                      Opinion   No.   H-   386
Executive Director,    State Judicial
Qualifications  Commission                           Re: Whether Justice of the
P. 0. Box 12265, Capitol Station                     Peace may delegate responsi-
Austin,   Texas  78711                               bility to employees of this
                                                     office.

Dear Mr.    Pipkin:

          Your letter requesting  our opinion states that the State Judicial
Qualifications   Commission    has received a number of complaints     con-
cerning the practice of justices   of the peace delegating authority to clerks,
secretaries    and spouses to accept pleas of guilty, to levy fines on guilty
pleas,   to set bonds when a defendant pleads not guilty, etc.. You have
asked our opinion as to the propriety of this practice which you have
found to exist in some instances.

         The office of justice    of the peace is created    by Article    5, §U,
Texas Constitution.     Article    5, 0 19 of the Constitution defines     the limits
of their jurisdiction.

                      Sec. 19< Justices of the peace shall have
                 jurisdiction   in criminal matters of,all cases
                 where the penalty or fine to be imposed by law
                 may not be more than for two hundred dollars,
                 and in civil matters of all cases where the amount
                 in controversy    is two hundred dollars or ‘less,     ex-
                 clusive of interest,    of which exclusive    original
                 jurisdiction   is not given to the District or County
                 Courts;    and such other jurisdiction,    criminal and
                 civil, as may be provided by law, under such




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The Honorable    Maurice   S. Pipkin    page 2     (H-386)




                  regulations   as ~may be prescribed   by law; and
                 appeals to the County Courts shall be allowed
                 in ally cases decided in Justices’ Courts    where
                  the judgment is for more than twenty doll,ars
                  exclusive   of costs; and,in all criminal cases
                  under such regulations     as may be prescribed
                  by law.   And the justices   of the peace shall be
                 .ex officio notaries public.    And they shall hold
                 their courts at such times and places as may be
                 provided by law.

         Pursuant to the constitutional  authorization,    the Legislature   has
provided by law. for jurisdiction   in numerous other situations.       See, for
example,   Articles   2385 and 2386, V.T. C. S.‘; Articles    4.11, 16.15, 49.01,
50.01,  V. T. C. C. P.

         Furthermore,     the’Legislature  has provided for the performance    of
the duties of a justice of the peace when he is absent or unable or unwilling
to perform the duties of his office himself,    Article 2377, TV. T. C. S., or
when he is unable to perform them because of sickness        or injury or other
disqualification.   Article   2399, V. T. C. S.

         No authority exists for a justice to perform his duties or exercise
his powers by delegation to a secretary,        clerk or spouse.   The maxim,‘-’
delegatas non potest delegare        (the person to whom, an office or duty is
delegated cannot lawfully devolve the duty on ,another unless expressly
authorized to do so) is applicable      to this situation. Newsom v. Adams,
451 S. W. 2d 948 (Tex. Civ. App.,        Beaumont 19’70, no writ); Moody v.
Texas                            373 S. W. 2d 793 (Tex. Civ. App.,    Austin,
1963, writ ref’d.,   n. r. e.); 47 TEX. JUR. 2d Public Officers,       $114, p.
149,   et seq.

         Those powers and duties of a public officer which are judicial in
nature, as distinguished   from those ,which are ministerial, cannot be
delegated to another.    Padgett v. Young County, 204 S. W. 1046 (Tex.
Civ. App., Ft. Worth 1918, writ dism’d);    Navarro County v. Tullos,
237 S. W. 982 (Tex. Civ. App.,     Dallas 1922, err. ref’d.).




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The Honorable   Maurice    S.   Pipkin    page 2    (H-386)




         In our opinion the acts of a justice of the peace in accepting pleas
of guilty~, levying fines on such pleas and setting bonds on pleas of not
guilty   are among the judicial functions which a justice of the peace may
not delegate to his clerk, his secretary,    his spouse,  or anyone else.

                                   SUMMARY

                    A justice of the peace may not delegate to any
                other person the exercise  of judicial powers and
                duties devolved upon him by the Constitution or
                statutes of the state.


                                                    Very   truly yours,




APPVVED:




                            &$I@
DAVID M. KENDALL,         Chairman
Opinion Committee




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