                           fune.14, 1951

Hon..R. L. Fraaier                 oplnlon     no. v-1192.
County Attorney
Somervsll county                   Re: Legality  of one person
Glen Rose, Texas                       holding at the same
                                       time the offices  of
                                       justlce  of the peace
                                       and county commlssion-
Dear Sir:                              per.
          You have requested reconsideration  of Attorney
General's Oplnlons O-2640 (lg40),v-828 (1949) and At-
torney General's Opinion, Bk. 27, p. 207 (1913 , published
in Report and Opinions of Att'y Gen., 1912-191 1 , p. 727,         _
which hold that the same person may not hold the offices
of county canmissioner and justice  of the peace simultane-
ously for the reason that the duties of the two offices
are incompatible.
          Section 26 of Artiele'VII  of the Constitution
of Texas of 1845, 1861, and 1866 provided:
          "Ro person shall hold or exercise
     at the same time;more   than one civil of-
     fice of emolument, except that of Justice
     of the Peace."
          Section 30 of Article       III    of the Constitution
of Texas of 1869 provided:
            'Ii0 judge of any court of law or equity,
     Secretary of State, Attorney General, clerk
     of any court of record,      sheriff   or collector,
     or any person holding a lucrative         office   un-
     der the United States,      or this State, or any
     foreign government, shall be eligible           to the
     Lsglslature    nor shall at the same time hold
     or exercise    any two offices,     agencies,    or ap-
     pointments of trust or profit        under this
     State;     Provided, that offices     of militia
     to which there Is attached no annual salary,
     the office    of postmaster,    notary public,     and
     the office    of justlce  of the peace, shall not
     be deemed lucrative;     and that one person may
     hold two or more county offices,        if so pro-
     vided by the Legislature."
Hon. R. L. Frasler,    page 2    (V-1192)


          Section 40 of Article XVI of the Constitution
of Texas of 1876, as amended, provides:
            ‘Ro person shall hold or exercise,        at
     the same time, more than one Civil Office
     of emolument. except that of Justice of
     Peace. County Commissioner, Rotary Public
     and Postmaster, Officer        of the Rational
     Guard. the Iiational Guard Reserve. and
     the Officers    Reserve Corps of the’Unlted
     States and enlisted      men of the Rational
     Guard, the Rational Guard Reserve, and the
     Organized Reserves of the United States,
     and retired    officers    of the United States
     Army, Ravy, and Marine Corps, and retired
     warrant of fleers , and retired      enlisted men
     of the United States Army, Ravy, and Marine
     Corps, unless othemrise specially         provided
     herein.     Provided, that nothing in this
     Constitution     shall be construed to pro-
     hibit an officer      or enlisted   man of the
     Rational Guard, and the Rational Guard Re-
     serve, or an officer       in the Officers    Reserve
     Corps of the United States,        or an enlisted
     man in the Organized Reserves of the United
     States;    or retired   officers   of the United
     States Army, Ravy, and Marine Corps, and
     retired warrant officers,        and retired   en-
     listed men of the United States Army, navy,
     and Marine Corps, from hold&g in conjunc-
     tion with such office        any other office   or
     position    of honor, trust or profit,       under
     this State or the ~Unlted States,        or from
     voting at ‘any Election;       General, Special
     or Primary& in this State when otherwise
     qualified.       (Emphasis added throughout.)
            The underlined portion constituted    Section 40
of Article   XVI in 1876.   The remaining portion was added
by amendments adopted in 1926 and 1932.       It Is noted that
since 1845 the Constltutlons    of Texas have prohibited    the
holding of two offices    of emolument at the same time by
one person.    ,Since 1845 the office  of justice   of the peace
has been expressly exempt from its prov3slons.        Since 1876
the office   of county commissioner has likewise been ex-
pressly exempt from its provisions.      Therefore,   the provi-
sions of Section 40 of Article     XVI insofar as they pertain
to your request have remained unchanged since 1876.
Hon. R. L. Frasier,        page 3     (v-1192)


           Although the office  of county cuzmissloner    and
the office  of justice of the peace are exempt from the
provisions  of Section 40 of Article   XVI, the common law
rule that one person cannot hold both offices     at the same
time if the duties of the office    are inocmpatlble   is rec-
ognized in this State.   Thomas v. Abernathy County Line
                                                A    1      .
                                               , % T::'l 45

          In the latter          case the Supreme Court stated,           at
84 S.W.28 1007:
                'The text, 34 Tex. Jur. ,354, Sec. 19,
        summarizes the rule, thus:              'Having elected
        to accept and qualify for the second office,
        Ipso facto and as a matter of law, he vacates
        the first       office.      This Is true, where both
        offices      are nlaces of emolument. renardless
        of whether they are incompatible,             azd if the
        are incompatible           there Is a vacation--nliso
        first     office    regardless     of whether both are
          ffi         f emolument within the meaning Of
        the ~~k&tut,on.              I n such circumstances    the
        constitutional          orovislon   that all officers
        shall continue to perform the duties of their
        offices      until a successor has been qualified
        does not apply.'"
             In an annotation to this case,            100 A.L.R.    at
1164,    the rule is stated as follows:
              "It is a well-settled      rule of the com-
        mon law that a person cannot at one and the
        same time rightfully      hold two offices     wNch
        are incomoatible,     and, th        he he accepts
        aauointment to t       second%fke?       which is
        incompatible,   and qualifies,      he vacates,   or
        by implication    resigns,    the first  office.'
            The common law rule relative            to the holding of
two offices   is sunrmarized in Attorney           General's  Opinion
v-303 (1947) as follows:
         "At common law (adopted as the law of Texas
        in Article  1, R.C.S., when not inconsistent
        with our statutes   or Constitution),  'there is
        no limit to the number of offices which may
        be held simultaneously   by the same person,
Hon. R. L. Prasier,    page 4    (V-1192)


     provided that neither of them is incanpati-
     ble with any other; and this rule extends
     to offices     of the highest grade, and which
     Involve,    for their adequate performance,
     the greatest expenditure of time and labor.'
     Throop, Public Officers,        pa 33.    It is stated
     in Vol. 2~(Rev.) McQulllin on Municipal Cor-
     porations,     at page 144, that, 'The same per-
     son may hold different       offices   which are not
     incompatible,     unless forbidden by laws8 43
     Am. Jur. 153 recites      that: 'In the absence
     of express or implied statutory          provisions
     to the contrary,     an officer who holds two
     or more separate and distinct         offices,    not
     Incompatible,     Is entitled     to the ccmpensa-
     tion attached to each office.'           And in 46
     Corpus Jurls, page 941, it says, 'At common
     law the holding of one office         does not of
     itself   disqualify    the Incumbent from hold-
     ing another office      at the same time, pro-
     vided there Is no Inconsistency          in the
     functions     of the two offices     In question
      . . . The Inconsistency        . . . does not
     consist in the physical impossibility            to
     discharge the duties of both offices;but
     lies rather in a conflict         of interest,    as
     where one is subordinate to the other . . .
     or has the power to remove the incumbent of
     the other, or to audit the accounts of the
     other.'
            'Meecbam on Public Offices and Officers,
     p. 269, announces the rule to be thatr '. . .
     the mere physical Impossibility       of one person's
     -a?forming    the duties of the two offices     as&om
     the lack of time or the Inability         to bs in
     two places at the same moment, is not the in-
     compatibility    here referred   to.   It must be an
     inconsistency    in the functions    of the two of-
     fices,   as judge and clerk of the same court,
     claimant and auditor,     and the like.'"
          This principle    of law is followed in practical-
ly every jurisdiction    of this nation.   See annotations   in
Note, 100 A..-$.R. 1162.
           It is apparent from the foregoing   authorities
that Section 40 of Article   XVI of the Constitution    was
adopted as a limitation   on the common law rule allowing
.   I




        Hon. R. L. Prasier,    page 5    (V-1192)


        one person to hold at the same time two offices          which
        are not Incompatible.        See Bate, ,100 A.L.R. at 117C.
        Section 40 of Article       XVI prohibits   the holding ,of two
        offices     of emolument at the same time by one person
        even though the duties of the two offices         may be com-
        patible.      Certain offices   are expressly   exempt from its
        provisions,     but as pointed out above, this exemption
        does not authorize the holding of two offices          the duties
        of which me incompatible.         Therefore,   the remaining
        question to be determined is whether the duties of coun-
        ty commissioner and justice        of the peace are lncompati-
        ble .
                    It is the duty of the commissioners’ court to
        approve or disapprove the accounts of justices         of the
        peace for fees in criminal actions.         Art. 1052, V.C.C.P.
        It is the duty of the commissioners’court to fill          va-
        chncies aria&     in the office    of justice    of the peace.
        Tex. Const. Art. V, Sec. 28; Williams v. Castleman, 112
        Tex. 193, 247 S.W. 263 (1922).        It is the duty of the
        commissioners t court to ~divide the county fro6 time to            -
        time into justice    precincts.    Tex.. Const. Art. V, Sec.
        18. Other instances of supervision         of the commission-
        ers ’ court over justices     of the peace might also be
        cited.    It is therefore    our opinion that the duties of
        county commissioner and justice       of the peace are incon-
        patible.    See Thomas v. Abernathy County Line School
        Dist.,   supra; buckles    v. Board of Education of Polk
        Count& 272 Ky. 431, 114 S.W.2d 511 (1936).
                   In the brief which you submitted with your opin-
        ion request,   you referred   to the holding in Bluitt v. Stats,
        56 Tex. Grim. 525, 121 S.W. 168 (1909),      that a person might
        hold the offices   of county. commissioner   and road commlssion-
        er at the same time.     In that case, a statute made the coun-
        ty commissioners ex-officio     road commissioners.    The court
        held that the county commissioners were”charged by law with
        the duty, authority,    and obligation   of giving attention   to
        all matters affecting    public roads in their respective     coun-
        ties, and the duties imposed on the commissioners of Ellis
        County by this act come reasonably and seasonably within the
        general scope of their duties under the law.”        This case
        comes within the rule announced in Kugle v. Glen Rose Ind.
        School Mst. Ro. 1, 50 S.W.2d 375 (Tex.Civ.App.        1932) af-
        firmed, Pruitt v. Glen Rose Ind. School Dist. IJo. 1, Luora:
Hon. R. L. Frasier,   page 6     (v-1192)


            *It is doubtless permissible     for the
     Legislature    to assign to the county tax col-
     lector    the duty of collecting    the taxes of
     independent school districts,       as Is done un-
     der the provisions     of Revised Statutes,    ar-
     ticle   2792, for the collector     In discharging
     such duties is not holding two offices,        but
     Is merely performing extra duties assigned to
     the one office.     First   Baptist Church v. City
     of Fort Worth (Tex.Com.App.) 26 S.W.(2d) 196;
     City of Houston v. Stewart, 99 Tex. 67, 87
     S.W. 663; Powell v. Wilson, 16 Tex. 59."
See Jones v. Alexander,,122     Tex. 328,        59 S.W.2d 1080 (1933).
            For the reasons herein stated   we affirm the hold-
ing In Attorney General's Opinions O-2640 (1940), V-838
(lg&),   and Attorney General's   Opinion, Bk. 27, p. 207 (1913),
and you are advised that the same person may not hold the of-_
;;",   &dounty   commlssloner and justice  of the peace at the
           *
                          SUMMARY
             The same person may not hold the of-
     fices    of county commissioner and justice       of
     the peace at the same time for the reason
     that the duties of the two offices        are in-
     compatible.       Thomas v. Abernathy County
     LLne Ind. School Diet.,      290 S W 152 (l!
           .     *   27~ Pruitt v. Gl&'Rose       127'
     S~olPPDist.       Noi 1 126 T     4    84 S W 26
     1004 loo A L R. 1i58 (l&j;          khAcl.e~ +.
     Boar& of Ed&&ion        of Polk counts, 272 ICY.
       31, 114 sW2d. .     11 1 8 .
                                     ..
APPROVED:                                   Yours very truly,

J. C. Davis, Jr.                              PRICE DANIEL
County Affairs  Mvlsion                     Attorney General

Jesse P. Luton, Jr.
Reviewing Assistant
                                            Bs              6lL%f-
Charles D. Mathews                               e   John Reeves
First Assistant                                        Assistant

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