lion. Carl Ylller
Criminal District   Attornay
Roekuall, Taxes                0plnlon   NO. f-828
                               Ror   Lagality   of one per8oa
                                     holding tha 0tri0et3or
                                     J&atlas of the Paaoe
                                     and County Comwdsslonar
                                     at the aamb timer
Dear Sir:
           We rtter to your letter    in which you ask it
the same peraon may hold the ofrloes     or Juatloe of the
Peaoe and County Commlssionor of a county at the sama
time and note your suggeatlon that a negatlre answer
may be in conflict   ,wlth Seotlon ‘40 of Artlole  XVI of
the Constitution   of Texas, which ,reads in part:
           “Ho person shail bald or exercise     at
     the same time. more than oae civil    office
     or *oltm+      ixcdpt that or~.Jw&e    or tha
     Peace, Coanty‘-Commlssloner, Notary Public.,
     Postmaster,   etq~.” (Underscdrihg ‘added
     throughout)
          The prahlbltloa Of Section 40 of lrrtlolr XVI
against the holdlng of more than ohe Offlee of emolument
by the same person at the same time does not apply to the
offices of County Commlsaloner or Tustloa of the Peace
ror the reasoa that eald offlobr  are axpressly exoaptad
rrom its prorlsfons.
           However, it is a rundamaatal rule or law that
the same person may not at the aama tima hold two or-
rices,  the duties of ,whlch are inoompatlbla:   This rule
apDlles to all offloes   fncludlnr. those named in see-




          The’kbore oasa Of TIioPLdsP.
Line Inddpendent ‘Schbol Dlitrlct  involred
the same persons to hold at the rtiaib time
Hon. Carl Miller   - Page 2     (V-828)


or alderman and sohool trusts..     The Court doaldod that
the question as to whether Seation 40 of Artlole XVI ap-
plies to said offices   la lmmaterlal beoause it held that
the two offices  are lnoompatlble   and may not be held by
the same person at the same time.     It trustees Smith and
Lindsey vacated their offices    as school trustees whaa
they qualified  as aldermen, they could not be counted to
mske a quorum of the school board.      On the point the
Court said:
             “In our oplnlon the orrices    or sohool
     trustee and alderman are incompatible;        ror
     under our system there are in the alty ooun-
     cl1 or board of aldermen various directory
     or supervisory     powers exertable   in respeot
     to school property located within the city
     or town and in respect to the duties of
     school trustee perrormable wlthln its llm-
     its--e.g.,    there might well arise a conrllct
     of discretion    or duty in respeot to health,
     quarantine,    sanitary,  and fire prevention
     regulations O See articles      1015,  1067,  1071,
     R.S. 1925.     If the same person could be a
     school trustee and a member of the city ooun-
     cil or board of aldermen at the same time,
     school policies,     in many important respects,
     would be subject to direction       of the council
     or aldermen instead of to that of the trua-
     tees.
            “The result of thls lncompatlblllty        is
     that Smith and Lindsey vacated the offices
     oi.sohool   trustees when they quallrled       as
     aldermen.    State v. Brlnkerhorr,      06 Tex. 45,
     17 S.W. 109. Henoe the quorum neoeaaary to
     enable the board of trustees        to order an
     election   or to canvass the returns and de-
     clare the result    of an election     did not ex-
     ist, if the fact allegations       be true, and, lp
     such event, the issuance and sale of the
     bonds and levy of the tax therefor         has no lan-
     rui *arrant.     Those allegations,     as presented,
     are duly verified     and not ohallenged,     and we
     believe   the plalntlffa   in error are entitled
     to the temporary injunctive      relief    prayed.
           “In view oi whet has been said, the
     question whether the office  or school trustee
     or that of alderman is an orrlce  or ‘amolu-
     me&’ within the terms of aeotlon 40, art. 16,
                              ,    .




Hon. Carl Miller   - Pago 3       (P-828)



     or the Constitution,  is immaterial, and In ra-
     spect to that question we do not exprass or
     &ply a conclusion.*



           aOnde ‘of the m&t important testb -is’ to
     whet&r ofrlces      are inoompatlble   is found in
     the principle    that the lnoompatlbllity    Is rea-
     ognlzed whenever one la sabordlnate       to the
     other in some of its important and prlnclpal
     duties, or la subject to supervision       by the
     other, or whore a contrarlty      and antagonism
     would result in the attempt by one person
     to discharge the duties of both.        Under this
     principle    two oftlc,ea are incompatible   where
     the lnoumbent of one has the .power to ramove
     the incumbent of the other, though the contln-
     gency on which the power ‘may be tiferclsed Is
     remote, and it also exists *here the incum-
     bent ot one office      has the power of appofnt-
     ment as to the other oiflce,      or to audit the
     accounts of another, or tO exercise       a auper-
     vlslon over another.”
          Sedtlon 10 of Artlole        V of the Constitution
of Texas reads in part:
            “Each organized county in this State non
     or hereafter existing      shall be divided ~-.from
     time to time, idr the convenla~&.&.%h&paople,
     ‘into precincts e not less than four and not more
      than eight.    The present county Gourts shall
     make the first    dlvlslaa;-’ Sa@~aaquent divisiona
      shall be made by the d0mlQf di ham’ Court, pro-
     vldbd ior by this Constlta 4~16%* In each suoh,
      precinct-~ Were -sbsll~ ba ‘elebt.Oill at eaoh blen-
      nlal election   one justloe oi the peace. O O The
     Oounty Commissioners so ahosen, with tha uoonty
      judge, as presiding offloer,~     shall compose tha
      Coontp Commiaaloners~ Court ,’.wEiah 6ksXl axbr-
      olse such powers and jurlsdle$ion        over all
      county business as is conferred by this Consti-
      tution and the laws of the State as msagbe here-
      arter preacrlbed.R
           In Attorney Generalls Opinion Ho. Y-790 it
was hdld. that the Commissioners* Court may abolish old
justice  preolncta at any time, thereby oreatisg vaoan-
cles and fill   such vaoancles by appointment.  Ue en-
close a copy of this opinion.
Hon. Carl Miller   - Page 4    (V-86S)


           It is the duty of the Qoml88io~ox%'    OorrC
to detealne whether the J'Plltloa8  of tlm Pow8 r%Ul
be paid oa a tea or ralary krir    lnQ to preeb?ilM their
a~panratlon~wlthln   the rtdtatory lWt8.. Ilrrtlrlw
3883,~3891, 3913@., V.C..S.).  tortior or the Pm      are
required by law to make full report8 to tha carirrion-
em' Courts at eaoh of it8 regular~te~nr. w-tiolw
1617-1618 V.C.S.,  Artlo'le 1OSZ V.C.O.P.)o
          Thor 8ame queatloa HI beioro Attornay banral
Looney In 1913.   In dlsousrihg tho ratter In an apiaion
by Hon. C. A. Sreetoa   it is said,

            “Under the law, a juatioe     of the pea08 is
     oharged with the duty of -king         a sworn repott
     or all moners oollected      by hla for the.um of
     the county, to the coaalsslonerw        ooart of tha
     oountp, which report shall show the amount ot
     moneys collected     and the dlsposltlon      mad8 of
     oarno, and said report shall be carefully         exu-
     ined by the’ commlssloners Court,       and ii found
     oorrect , by order of the court,       the clerk   shall.
     enter the same on the financial        ledger of the
     oounty, and if round to be incorrect,          the court
     shall summons said justice      of the peace before
     them and have him correct the same. Now, if it
     is lawful and permissible      for one man to hold
     both positions    at the same time, &very aember
     of the court could hold both positions          at the
     same time, and in such 8vrnt we would hare the
     entire oommlssloners oourt summoning themsolvo8
     to appear before themselves to make the naaeararf
     oorreotlona    in their reports.      rr the ju8ti00 0r
     the peaoe should id11 tci correct the report,          or
     ii, upon examination it should bo saoertal5a4
     that said justice of the peace was a defaulter,
     it ronld then beoome the dutfof          the oomels8lon-
     ers court,to    pass an order directlag that suit
     be brought agalnst suoh orfiabr        and hi8 oftlclal
     bondsmen. In saoh eveat, WS uoorld hare this ait-
     uatlon:     The entire oommlarloner8 oourt ritting
     in judgment upon their own OfflOlal          work performed
     in a dlrrerent    orrioial   oapaoltr.     Ii thay wara
     inclined    to be dlahonest,   or ii they 8hould eon-
     oelre the idea of misappropriating          county fund8
     while serving    in the oapacltf    of just100 of tha
     peace, if permitted at tb sme tlme~t.0 aot in
      the oa salty 0r oou5ty camia*lo5cr,          and pa88 up-
      on the Pr own report*, who would d8toot tha dofal-
      oation?
Hon. Carl Miller   - Page 5     (V-828)


            “Again, the law requires the commlssloners court
     to fill   all vacancies In the office    of justlae   of the
     peace.    It might so happen that a vaoanoy might oocur
     In the office   oi justios   of the peaoo in tho precinct
     of eaoh county commIssIoner, and If permitted       to hold
     both offices   at the same tine, the entire corisslon-
     ers court might vote for themselves to fill       saeh va-
     oancles . If this should be done, they would pass
     upon and approve their own offiaial      bonds, booaosa
     the law requires the commissioners court to approra
     the bond of a justice     of the peaoe.   They aoald,
     rile and approve worthless bonds from which nothlng
     could be recovered.
            “The law furthermore enjoins the duty apon the
     commissioners court to ascertain      from the report of
     the justice    of the peace whether all fines and judg-
     ments rendered by him have been collected,        and If It
     appears that any such fines and judgments, imposed
     by such officer,     have not been paid and satisrled
     then the commissioners court shall charge suoh un-
     paid fines and judgments against the justice         of the
     peace,   and  he  and  his bondsmen would be  liable   thtre-
     for, unless he could show, to the satisfaction         of
     the commissioners court, that he had used due dili-
     gence to collect      same. Here again we would have a
     county commissioner sitting      in judgment upon his of-
     ficial   acts performed in another and different       of-
     ficial   capacity.
           “Again, the law makes it the duty of the com-
     missioners   court   to require a new bond of the jus-
     tice of the peace if, at any time, they should be-
     come satisfied     that his bond, from any cause was
     insurricient   . And in such case we would have a
     county commissioner passing upon the surflcienay
     and solvency of his own bond as justice     of the
     peaoe.
           “A number of other instances might be cited
      to show the incompatibility  of the duties or these
      two positions,  but we think the above are sufffaient.
            *After careful consideration     of this subject,
      we here come to the conclusion      that the duties of
      these positions   are Incompatible;    and because of
      this fact,   and because it would be against     good,
      sound public policy,    in the opinion of this Depert-
      ment , a county comprissioner oan not, at the same
      time, lawfully   hold the position    of justice  of the
      peace.”
Hon. Carl Miller   - Page 6   (V-828)


Opinion of Jan. 24, 1913, 1412-14, p0 727.     ThI8 epfa-
Ion was followed   in 1940 by Attorney General Gerald C.
Mann, O-2640.    In view of .the foregoing we are of the
opinion that the same person may not hold the office
of County Commissioner and Justice or the Peace at the
same time because the duties of said offioer#    are In-
compatible.


            The same person may not hold the oiflces
     of County Commissioner and Justice oi the Pesoe
     at.the same time because the duties of said of-
     fices are Incompatible,    Opinions of Attorney
     General of Jan. 24, 1913 (Opinions 1912-14,p0727)
     and o-2640,    Thomas v. Abernathy County Line
     I.S.D.,   290 S.Wo 152 (Comm. App. 1927)o
                                        Yours very truly
                                 ATTORNJU
                                        GENERALOF TEXAS



                                         W. T. Williams
                                         Assistant




                                 FIRST ASSISTANT
                                 ATTCBJEYGFXEAL
WTW:wb:jrb
Encl.
