                        April 10, 1967



Hon. Charles F. Herring                  Opinion No. M-54
Chairman, Jurisprudence Committee
Senate                                   Re:   Validity of Senate Bill
Austin, Texas                                  317 of the 60th Legis-
                                               lature authorlzlng Justices
                                               of the Peace to exchange
Dear Senator Herring:                          benches.
          You have requested our opinion on the validity of Senate
Bill 317 of the 60th Legislature. Senate Bill 317 reads as follows:
                 "A BILL TO BE ENTITLED
                           AN ACT
          "Authorizing justices of the peace of
           the same county to hold court for each
           other and to exchange benches; amending
           Chapter 2, Title 45, Revised Clvll Statutes
           of Texas, 1925, by adding a new Article
           2393a; and declaring an emergency.
    BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TMAS:
         9ectlon 1. Chapter 2, Title 45, Revised
    Civil Statutes of Texas, 1925, is amended by
    adding a nex Article 2393a to read as follows:
         "'Article 2393a. Exchange of Benches, A
    justice may hold court for any other justice whose
    precinct Is In the same county; and the justices
    of a county may exchange benches whenever they
    deem It expedient.'
         ltSec.2. The importance of this legislation
    and the crowded condition of the calendars in both
    Houses create an emergency and an imperative public
    necessity that the Constitutional Rule requiring
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Hon. Charles F. Herring, page 2 (M-54)


     bills to be read on three several days In each
     House b$ suspended, and this Rule is hereby sus-
     pended.
          Section 18 of Article V of the Constitution of Texas
provides as follows:
          *Each organized county in the State now
     or hereafter existing, shall be divided from
     time to time, for the convenience of the people,
     into precincts, not less than four and not more
     than eight. Divisions shall be made by the Com-
     missioners Court provided for by this Constltu-




               -into four commissioners precincts in
     each of which there shall be elected by the quali-
     fied voters thereof one County Commlssioner, who
     shall hold his office for four years and until
     his successor shall be elected and qualified. The
     County Commissioners so chosen, with the County
     Judge as presiding officer, shall compose the
     County Commissioners Court, which shall exercise
     such powers and jurisdiction over all county business,
     as Is conferred by this Constitution and the law!
     of the State, or as mav be hereafter orescribed.
     (Emphasis added.)~    "
          Section 19 of Article V of the Constitution of Texas
provides as follows:
          "Justices of the peace shall have jurisdic-
     tion 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, exclusive of in-
     terest, of which exclusive original jurisdlctton
     is not given to the District or County Courts;
     and such other jurisdiction. criminal and civil,
     as may be provided by law.,under such regulations
     as may be prescribed by law; and appeals to the
     County Courts shall be allowed in all cases decided

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Hon. Charles F. Herring, page 3 (M-54)


     in Justices' Courts where the judgment IS
     for more than twenty dollars 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 pro-
     vided by law." (Emphasis added.)
          In discussing territorial jurisdiction of Justices of
the Peace, it was held in Brown v. State, 118 S.W. 139 (Tex.
Crlm. 1909);
          nWe are of the opinion that the intention
     of this statute is, in the case of the absence
     of the justice of the peace, to authorize and
     confer jurisdiction on the nearest justice of
     the peace in the county to perform the duties
     of such absent justice. The statute, however,
     does not confer power upon such nearest justice
     to go outside of his precinct, and to the office
     of such absent justice, and there perform such
     duties, but contemplates that the duties shall
     be performed in the precinct of such nearest
     justice. Crawford v. Saunders, 9 Tex.Civ.App.
     225, 29 s.w. 102.   If this is correct, and It
     follows the authorities in this state from the
     beginning, and if the justice of one precinct
     cannot go Into the precinct of another justice
     of the peace and Issue process In that precinct
     returnable before another justice, then the
     reasoning Is infinitely stronger why the neigh-
     boring justice cannot go into the domain of an
     adjoining or other justice precinct where there
     is a resident authorized and qualified justice
     of the peace, and institute or hold courts of
     inquiry, under Code Cr. Proc. art. 941. The
     visiting justice of the peace would have no
     such authority under any provision of law in
     Texas. This construction of our constitutional
     and legislative provisions seems to have been
     followed from practically the beginning of our
     jurisprudence.‘ We are not discussing how far
     the Legislature may go in fixing the territorial
      urisdiction of justices of the peace. We are
     only discussing the statutes as we find them
     enacted.   (Emphasis added.)

                        - 248 -
Hon. Charles F. Herring, page 4 (M-54)


          Thus while Brown v. State establiahea the principle
that under existing law’ “ohe Justice of the Peace as such cannot
sit in the precinct of another Justice even when the other Justice
is absent” (118 S.W. at 141), the Court did not intend to S];;ey$ne
the authority of the Legislature to prescribe otherwise.        . .
at 142, supra.
          In Stewart v. Smallwood, 102 S.W. 159 (Tex.Civ.App. 1907),
the Court made the following observation:
         “It is provided by article 1566, Rev. St.
    1895, that ‘during the period of such vacancy
    in the office of Justice of Peace, or whenever
    the Justice of the Peace in any precinct shall
    be absent, or unable or unwilling to perform
    the duties of his office, the nearest Justice
    of the Peace in the county may perform the duties
    of the office until such vacancy shall be filled,
    or such absence, inability or unwllllngness shall
    cease. ’
         ,t. . . .
         “We are of the opinion that the intention
    of this statute is, in the case of the absence
    of the justice of the peace, to authorize and
    confer jurisdiction upon the nearest justice of
    the peace in the county to perform,the duties
    of such absent justice. The statute does not,
    however, confer power upon such nearest justice
    to go outside of his precinct and to the office
    of such absent justice and there perform such
    duties, but contemplates that the duties shall
    be performed in the precinct of such nearest
    justice. Crawford v. Saunders & Brts., 9 Tex.
    Civ. App. 225, 29 S. W. 102 . . . .
          It Is noted that the Court did not questlon the validity
of the 1895 Act involved In that case.
          In Jones v. Alexander, 122 Tex. 328, 59 S.W.2d 1080
(1933), the Court upheld the validity of an act of the Legislature
providing for membership on juvenile boards by district judges.
In that case the Court observed:
               .The Supreme Court of this state has
     repeatedly held that courts have no right to
     declare an act of the Legislature void, unless

                       - 249 -
Hon. Charles F. Herring, page 5 (M-54)


     able to point to some provision of the Consti-
     tution which prohibits the act or from which
     the prohibition necessarily arises. Lytle v.
     Halff, 75 Tex. 128, 12 S.W. 610; Harris County
     v. Stewart, 91 Tex. 133, 41 S.W. 650; Smiseion
     v. State, 71 Tex. 222, 233, 9 S.W. 112' San
     Antonio, etc. v. State, 79 Tex. 264, 14 S.W.
     1063."
          Construing the provlalons of Senate Bill 317 of the 60th
Legislature In light of the foregoing authorities, it Is noted
that the bill merely provides for the performance of additional
duties by a Justice of the Peace by authorizing a Justice of the
Peace to hold Court for another Justice whose precinct is in the
same county. We are unable 'to polnt to some provision of the
Constitution which prohibits the Act." Therefore you are advised
that Senate Bill 317 of the 60th Legislature authorizing exchange
of benches by Justices of the Peace is constltutlonal,

                     SUMMARY
          Senate Bill 317 of the 60th Legislature au-
     thorizing exchange of benches by Justices of the
     Peace is constitutional.
                                   truly yours,
                                          cc*
                                    D@z&R
                                      C,    TIN
                                    y General of Texas
Prepared by John Reeves
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Hawthorne Phillips, Chairman
W. V. Geppert, Co-Chairman
W. 0. Shultz
Mark White
Alan Minter
James McCoy
STAFF LEGAL ASSISTANT
A. J. Carubbl, Jr.


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