                      November        19, 1951

Hon. G4orge M. Kelton                  opiaion HO:V-13416.
‘County Attorney
Ector County                           Re: Legslitr of a per@Ola'I
Odesse, Texas                                 b4ing et tbe uu'tlme
                                              4 jwtico of tbB  p4rce
                                              pd a lebonr for the
                                               Perk D~.rislon"of a
Dear Sir:                                 -   county.
          You heve wqutisted an OplnLoa on the follow-
ing question:
            "Your offlc4                         rvqaonted
                                  ia resrpectfully
      to'furnish      4n    opinion 41)to Mmtbe?        or not a
      county     4mplo~44    iatihe     capsclty   oi leborer           ,.
      for the Park Division may at the 40140ticw
      s4rv4 as JustIce of the Peac4 for on4 of the
      precincts in acid County.”
           The prohlbltioa of Section 40 of Article XVI
of the Constitution ogoinat the holding of lDJSIth8n
one civil 0rfice of emolum4nt by the s4a4 pereon     et
the 44~14 time does not apply to the office ;oi jwtlce
of the peace tar the reaeon that this office la ex-
press1 4xcepted from its provisions. Att'y Gen. Op.
v-828 f&g).          4110,   it    ia our opialon thet Section 40
di grtlcle,XVX la84no af+Mcatiota to Tour roqwrt,
since a 18bonr in the Perk DivFslon is nqt 8 civil
osfic4 of 4laolllm4nt.
            The remetning questloa to be'detmaid                   18
vhvther the duties OS a laborer in the "Park Dlviaion"
of a couaty and the duties   OS the office    of jurtlce ot
the p44ce  are Lncompetlble.   The t4st4   to  be applied
Ln determining       incoaprtlbillty are concis4lf rt8ted in
Knucklea v.

           "One oi the most important tcata 08 to
      vhbther offices era lnc#patlblv 18 Sound in
      th princciplsthat   tbe leeouipetlblllt~ Iv rem
      cognhed rbuvor    one ia ruborddirrete to fba
Hon. George hf. Kelton,      page 2    (v-1346)


       other in some of its important rnd principal
       duties,  or Is subjsct to supervision   by the
       other, or where a contrariety   and sntrgonis8
       would result in the attempt by on4 person to
       discharge the duties of both.    Under this prln-
       ciple two offices   814 LncompatLble vher4 the
       incumbent of one has th4 povsr to r48ove Wm
       Incumbent OS the other, though the contingency
       on which the power may be exsrciaed    is remote,
       and it also exists where the iacuabent OS one
       offlce  has the power of appointment as to the
       other office .‘I
            Mechem on Public Office8 rnd OIfIcaw            (1890),
Sec.   422, p. 268, states the rule 48 Sollovrc
                “It se4ms to be well settled that the
       q er4 physical    imporsibility     of one person’s
       p4rSormlng the duties OS the tvo off;ces            48
       from the lack of time or th4 ln4bilitr            to be
       in two places at the same moment, ir not the
       incompetiblllty      h4r4 referrod    to. It murt be
       8n 1ncDnaiStenCy      in the iUnCtiOn       Of th4  tV0
       offices,     as judge sad clerk of the a4me court,
       claimant and auditor,         and the like.”
           Applying these tests to the positions    in qu4s-
tlon, v4 ere unable to perceive  any incompatibility,
for neither is subject to my supervision    of tha other,
nor would any antagonism result In an attempt by on4
person to discharge the dutlcs of both.
           We know of no constitutional      or statutory pro-
vision prohibiting   a person’s being et the same time 4
justice  of the pcec4 and a laborer ior the “Park DLvi-
aion” of a county.    In vi.4~ of the Poregoing, we agrae
with your conclusion   that a couuty employes in the cape-
city of 4 laborer for the "Park Division may at the
seme time serve as justice     of the peace.

                         SUMNARY
             A county employee in the capacity of
       laborer for the "Parks Division" is not
Hon. George M. Kelton,         peg4   3    (v-1346)


        prohibited      from being    at the aam t'lm4 a
        justice   0s    th4 peece.
APPROVED:                                       Yours very   truly,
J. C. Davis,      Jr.                             FRIGE DARIBL
county ArrearsDivision                          tbttomey Geaeraa
                                                 (.
Everett Hutchinson
Ex4cutiv4 Assistsnt
Cherles    D. M&hews
First Asaistsnt
JR:vh




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