Montgomery County, Texas
Office of the County Auditor
501 North Thompson, Suite 205, Conroe, Texas 77301
P. 0. Box 539, Conroe, Texas 77305
Phyllis L. Martin County Auditor
Angela H. Blocker 151 Assistant County Auditor
November 9, 2012
FILE #f/{(;Lf1/ 76-/ Z
1.1. # tt11rD
RQ·IO 91- all
The Honorable Greg Abbott Attorney General of Texas Attn: Opinion Committee
P 0 Box 12548
Austin, TX 78711-2548
CERTIFIED MAIL
RETURN RECEIPT REQUESTED 7009-0820-0001-8324-2439
Re: Request for an opinion regarding special and temporary justices Dear Attorney General Abbott:
Your opinion is being requested regarding the payment of certain special and temporary justices. The questions presented are:
1. Can the County Judge appoint more than one special or temporary justice to serve when a justice is temporarily unable to perform official duties?
2. Can the County Judge appoint a special or temporary justice to serve "at large" for any
justice court in a county?
3. Can the temporary justice(s) be a sitting justice of the peace?
4. Can the temporary justice(s) be a sitting justice ofthe peace in the same county?
5. If the answer to # 4 above is "yes," can additional compensation be given to that temporary justice(s) as outlined under section 27.055(b) ofthe Government Code without violating section 152 of the Local Government Code?
6. If the special or temporary justice can be a sitting justice of the peace, can the temporary justice(s) be compensated as outlined under section 27.055(b) of the Government Code
without violating section 27.054 of the Government Code?
7. Can a justice of the peace hold more than one office, as provided by Article 16, Section
40 of the Texas Constitution, when the offices being held are both for justice of the peace?
Factual Background
The Montgomery County commissioners court has approved contracts with five (5) separate persons to "render temporary judicial services to County in its Justice of the Peace Courts, following appointment by the Montgomery County Judge pursuant to Texas Government Code
§27.055." The contract further states that these services shall be performed "as necessary and as requested by any Justice of Peace of Montgomery County, and only when an elected Justice of Peace of Montgomery County is unable to perform official duties due to absence, recusal, illness, injury, or other disability." The temporary justice "shall act as the presiding judge and shall
perform official bench duties for the Assigned Court, including but not limited to, docket calls, hearings, trials, and the issuance of judgments, orders, and/or writs." The temporary justice also "shall obtain and maintain all qualifications necessary to lawfully perform the services hereunder, including those qualifications outlined in Texas Government Code §27.055(c)."
One of the above referenced contracts is with a retired justice of the peace of Montgomery County, who presently serves as a municipal judge for a city in Montgomery County. Two of the above contracts are with justices of the peace in Montgomery County. Two of the above contracts are with justices of the peace in counties other than Montgomery County.
Legal Arguments and Authorities
1. The contracts in question cite the authority granted in Section 27.055 of the Texas Government Code. Subsection (b) of that code states: "If a justice is temporarily unable to perform official duties because of absence, recusal, illness, injury, or other disability, the county judge may appoint a qualified person to serve as temporary justice for the duration of the disability."
Can the County Judge appoint more than one special or temporary justice to serve when a justice is temporarily unable to perform official duties as provided in §27.055 of the Texas Government Code?
2. §27.055(a) of the Government Code states: "If a justice of the peace is disqualified from a civil case, is sick, or is absent from the precinct, the parties may agree on a person to try the case. If the parties fail to agree at the first term of the court after service is perfected, the county judge shall, on application of the justice or either party, appoint a qualified person to try the case. The disqualification, absence, or illness of the justice and the selection by agreement or appointment of another person to try the case shall be noted on the docket of the justice."
The contracts in question provide that the temporary justice "shall perform services as a temporary judge in any assigned Montgomery County Justice of the Peace court (hereinafter referred to as "Assigned Court"), as necessary and as requested by any Justice of Peace of Montgomery County, and only when an elected Justice of Peace of Montgomery County is unable to perform official duties due to absence, recusal, illness, injury, or other disability." Emphasis added
Can the County Judge appoint a special or temporary justice to serve "at large" for any justice court in a county?
3. Of the five contracts in question, four are with sitting justices of the peace.
§27.052 of the Government Code speaks to the vacancy or absence of a justice of the peace. It states: "If the office of justice of the peace is vacant in a precinct or if the justice is absent or unable or unwilling to perform his duties, the nearest justice in the county may temporarily perform the duties of the office." §27.054(a) provides that "a justice of the peace may hold court for any other justice in any county at the request of that justice." These specific references in the Government Code lead to the conclusion
that a sitting justice of the peace can exchange benches, but may not serve at the request of the County Judge as provided in §27.055 of the Government Code.
Can the temporary justices retained by the County in the above-referenced contracts be sitting justices of the peace?
4. Provided the answer to #3 above is "yes," the question still remains as to whether a temporary justice appointed under §27.055 of the Government Code can be a sitting justice of the peace in the same county as the desired appointment. §27.052 of the Government Code speaks to the vacancy or absence of a justice of the peace. It states: "If the office of justice of the peace is vacant in a precinct or if the justice is absent or unable or unwilling to perform his duties, the nearest justice in the county may temporarily perform the duties of the office." Emphasis added.
Can the temporary justice(s) be a sitting justice of the peace in the same county?
5. Challenges exist if the answer to #4 above is "yes." Local Government Code §152.011 mandates that a "commissioners court of a county shall set the amount of the compensation , office and travel expenses, and all other allowances for county and precinct officers and employees who are paid wholly from county funds." A procedure for setting the salaries of elected officials is outlined in §152.013 of the Local Government Code. The code provides for public hearings , notices in newspapers, and adoption of the salary of an elected official all as part of the budget process. The detailed procedures provided in §152 of the Local Government Code indicate there is no provision for pay outside of this process.
If the answer to # 4 above is "yes," can additional compensation be given to that temporary justice(s) as outlined under section 27.055(b) ofthe Government Code without violating section 152 ofthe Local Government Code?
6. Government Code §27.054 provides for an exchange of benches. Government Code
§27.055 provides for special and temporary justices. If the special or temporary justice is a sitting justice of the peace, does a conflict exist with regards to pay for that justice? Government Code §27.055(b) states that "the commissioners court shall compensate the temporary justice by the day, week, or month in an amount equal to the compensation of the regular justice." Emphasis added. Government Code §27.054(c) states "a justice who exchanges benches with another justice is not entit ed to receive compensation from the commissioners court of the county in which the regular justice serves."
The existence of two separate sections of the code leads to a conclusion that there is a distinct difference between an exchange of benches (for a sitting justice of the peace) and a special or temporary justice (for a justice of the peace no longer in office). This distinction implies that a sitting justice of the peace cannot serve as a special or temporary justice since the former "is not entitled to receive compensation from the commissioners court of the county in which the regular justice serves" and the latter shall be compensated by the commissioners court by the day, week, or month in an amount equal to the compensation of the regular justice.
If the special or temporary justice can be a sitting justice of the peace, can the temporary justice(s) be compensated as outlined under section 27.055(b) of the Government Code without violating section 27.054 of the Government Code?
7. Article 16, Section 40 of the Texas Constitution provides that "no person shall hold or exercise at the same time, more than one civil office of emolument." Exceptions are made for several offices, including that of justice of the peace. It has been discussed that the contracts in question are appropriate for a sitting justice of the peace to receive additional compensation for acting as a temporary justice because of the dual office holding provision of the Texas Constitution that specifically exempts justice of the peace from that provision. It has also been discussed that, since the currently elected justice of the peace is still holding his office, there can be no dual office-holding of that elected office and the offices of the temporary justices the County is contracting.
Can a justice of the peace hold more than one office, as provided by Article 16, Section 40 of the Texas Constitution, when the offices being held are both for justice of the peace?
Conclusion
Based upon any applicable existing Attorney General Opinions, as well as the foregoing statutory and constitutional provisions, your assistance is being requested on the issues brought forth above.
Thank you for your time and attention to this matter . If you have any questions, or need any additional information, please feel free to contact me.
pSincerely, a:::
Montgomery County Auditor
Is
cc: Randy Ellisor
Justice of the Peace, Precinct 3 San Jacinto County, Texas
P 0 Box 341
Coldspring, TX 77331
James F. Mature
Justice of the Peace, Precinct 4 Walker County, Texas
9360 Hwy 75 South
New Waverly, TX 77358
G. Trey Spikes
Justice of the Peace, Precinct 2 Montgomery County, Texas 2241 N. 1st Street
Conroe, TX 77301
Matt Masden
Justice of the Peace, Precinct 5 Montgomery County, Texas 19100 Unity Park Drive Magnolia, TX 77355
David Walker County Attorney
Montgomery County, Texas 207 West Phillips, 1st Floor Conroe, TX 77301
Alan B. Sadler County Judge
Montgomery County, Texas 501 N. Thompson, Suite 401
Conroe, 1J( 77301
THE OPINION
Dear Ms. Martin:
You ask several questions relating to temporary justices of the peace appointed under section 27.055 of the Government Code. 1 You explain that the Montgomery County Commissioners Court has approved contracts with five people for temporary judicial services in
the County’s Justice of the Peace Courts, following their appointment by the County Judge. Request Letter at 1. These five people include one retired and two current Montgomery County justices ofthe peace, as well as two sitting justices ofthe peace from other counties. Id. at 2.
You first ask whether a county judge can appoint more than one temporary justice of the peace to serve when a justice of the peace is temporarily unable to perform official duties. !d. at 1. In construing a statute, courts recognize that the words the Legislature chooses are the "surest guide to legislative intent." Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex. 2009). Section 27.055 ofthe Government Code provides that, when a justice ofthe peace is temporarily unable to perform his duties, a county judge may appoint "a qualified person to serve as temporary justice" of the peace, and that the commissioners court "shall compensate the temporary justice" in a certain amount. TEX. Gov’T CODE ANN. § 27.055(b) (West Supp. 2012) (emphasis added). The phrases "a qualified person" and "the temporary justice" are singular in number and indicate that the Legislature intended to limit the appointment of a temporary justice in any given instance to one individual. See id. Therefore, a county judge may appoint only one qualified person, and not more, to serve as a temporary justice of the peace when that precinct’s justice of the peace is temporarily unable to perform official duties for any of the reasons provided in section 27.055.
You next ask whether a county judge can appoint a special or temporary justice of the peace to serve "at large" for any justice court in a county. Request Letter at 1. We understand this question to ask whether a temporary justice can be appointed before any regular justice of the peace is unable to perform official duties, so that the "at large" temporary justice of the peace
‘Letter from Ms. Phyllis L. Martin, Montgomery Cnty. Auditor, to Honorable Greg Abbott, Tex . Att’y Gen .
at 1 (Nov. 9, 2012), http://www.texasattomeygeneral.gov/opin ("Request Letter").
would serve wherever needed at some undetermined time in the future. Under section 27.055, a county judge is authorized to appoint a temporary justice only (1) when a regular justice is disqualified from a case or otherwise absent and the parties request it, (2) when a regular justice is unable to perform official duties, or (3) when a temporary justice is "necessary" to help a precinct "dispose of accumulated business" in counties with a population of 800,000 or more. TEX. Gov’T CODE ANN. § 27.055(a), (b), (f) (West Supp. 2012). Therefore, section 27.055 does not permit a county judge to appoint an "at large" temporary justice before any of these needs arise.
Next, you ask whether the temporary justice of the peace can be a sitting justice of the peace and, if so, whether the temporary justice can be a sitting justice in the same county. Request Letter at 1. Under section 27.055, a county judge may appoint any "qualified person" as a temporary justice of the peace. TEX. Gov’T CODE ANN. § 27.055(a)-(b) (West Supp. 2012). The statute defines a "qualified person" as "a person who has served as a justice of the peace for not less than 4 1/2 years and who has not been convicted of a criminal offense that involves moral turpitude." !d.§ 27.055(c) . This definition neither disqualifies sitting justices of the peace nor imposes a geographic limitation that disqualifies justices of the peace from certain counties. A sitting justice of the peace who meets the definition of a "qualified person" may serve as a temporary justice under section 27.055 in place of a regular justice in the same county. Cf TEX. Gov’T CODE ANN. § 27.052 (West 2004) (providing that if a justice of the peace "is absent or unable or unwilling to perform his duties, the nearest justice in the county may temporarily perform the duties of the office").
You then ask whether additional compensation can be given to a sitting justice who serves as a temporary justice under section 27.055(b), without violating either chapter 152 of the Local Government Code or section 27.054 of the Government Code. Request Letter at 1. Subsection 27 .055(b) directs the commissioners court to "compensate the temporary justice by the day, week, or month in an amount equal to the compensation of the regular justice." TEX. Gov’T CODE ANN. § 27.055(b) (West Supp. 2012). The amount of compensation for a regular justice of the peace is set by the commissioners court in accordance with chapter 152 of the Local Government Code. TEX. Loc. Gov’T CODE ANN. §§ 152.011, .013 (West 2008). Therefore, subsection 27 .055(b) entitles a temporary justice to compensation in an amount that is set .by the commissioners court for regular justices of the peace in accordance with chapter 152.
Section 27.054 allows a justice of the peace to "hold court for any other justice in any county at the request of that justice." TEX. Gov’T CODE ANN. § 27.054(a) (West Supp. 2012) (emphasis added). However, any justice who does so is "not entitled to receive compensation from the commissioners court of the county in which the regular justice serves." !d. § 27.054(c). The commissioners court’s duty to compensate a temporary justice under section 27.055 applies to a "qualified person" who, by contrast, is appointed by the county judge . !d. § 27.055(b). Compensation that would be available to temporary justices of the peace is not authorized for sitting justices who exchange benches under section 27.054, even in the same county. Subsection 27 .055(b) thus does not conflict with section 27.054.
Last, you ask whether a justice of the peace can "hold more than one office, as provided by Article 16, Section 40 of the Constitution, when the offices being held are both for justice of
the peace." Request Letter at 1. Article XVI, section 40 provides that "[n]o person shall hold or exercise at the same time, more than one civil office of emolument, except that of Justice of the Peace …." TEX. CONST. art. XVI, § 40(a) (emphasis added). The prohibition against dual office holding expressly excepts the office of justice of the peace. See, e.g., Turner v. Trinity Indep. Sch. Dist. Bd. ofTrs., 700 S.W.2d 1, 2 (Tex. App .-Houston [14th Dist.] 1983, no writ) (holding that a justice of the peace could simultaneously serve as trustee of an independent school district). Therefore, assuming for the sake of argument that a sitting justice of the peace would hold dual offices by also serving as a temporary justice under section 27.055, a court would likely conclude that doing so is constitutional under the exception provided in article XVI, section 40.
SUMMARY
Section 27.055 of the Government Code permits the appointment of one qualified person to serve as temporary justice of the peace to replace an individual justice of the peace who is unable to perform the duties of the office. Section 27.055 does not permit a county judge to appoint an "at large" temporary justice of the peace.
A sitting justice of the peace may serve as a temporary justice of the peace under section 27.055, in place of a regular justice of the peace in the same county, provided the justice of the peace is a "qualified person."
The compensation of a temporary justice of the peace as outlined under section 27.055 of the Government Code does not conflict with section 27.054 of the Government Code or chapter 152 of the Local Government Code.
A court would likely conclude that a sitting justice of the peace who also serves as a temporary justice of the peace under section 27.055 does not violate article XVI, section 40 of the Texas Constitution.
Very nuly yours,
DANIEL T. HODGE
First Assistant Attorney General
JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel
VIRGINIA K. HOELSCHER
Chair, Opinion Committee
Stephen L. Tatum, Jr.
Assistant Attorney General, Opinion Committee
