Untitled Texas Attorney General Opinion ( 1967 )

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.)
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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
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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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