Untitled Texas Attorney General Opinion ( 1986 )

October 9, 1986
Honorable Richard G. Morales, Sr. Opinion No. m-558
Webb County Attorney
1104 Victoria Re: Retirement status of a
Laredo, Texas 78040 justice of the peace
Dear Mr. Morales:
You request advice about the retirement of an individual
presently serving as justice of the peace in Webb County. This
individual lost the primacy election and wishes to retire before the
general election. You ask whether he will officially be a retiree if
he does so.
Employees of a county which participates in the Texas County and
District Retirement Systm are members of that retirement system.
V.T.C.S. Title llOB, §52.:.Cll.We have been informed that Webb County
participates in that retirement system. The relevant statute defines
"employee" to include a person elected to an office in the county that
normally requires service for not less than 900 hours a year and for
which the person is compensated by the county. V.T.C.S. Title llOB,
§51.001(6); see V.T.C.S. Title llOB, §51.001(14). A justice of the
peace in WebEounty would therefore be a member of the Texas County
and District Retirement System. See Attorney General Opinion H-202
(1974). Justices of the peace arenot among the officers eligible for
membership in the Judicial Retirement System of Texas. V.T.C.S. Title
llOB, 942.001. See also P,ttorneyGeneral Opinion H-927 (1977).
Section 54.102 of Title 1lOB. V.T.C.S., states eligibility
requirements for retiring ,and receiving a service retirement annuity
from the Texas County and District Retirement System. "Retirement" is
defined as the withdraw.1 from service with a retirement benefit
granted under the Texas County and District Retirement System.
V.T.C.S. Title llOB, §51.001(10). The fact that the justice of the
peace lost an election does not prevent him from retiring. Cf.
Attorney General Opinion H-1230 (1978) (eligibility for assignment=
special judge of retired district judge who was defeated for
reelection).
Article XVI, section 17, of the Texas Constitution will, however,
cause the justice of the reace to remain in office until his successor
qualifies. This provisior states as follows:
P
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Honorable Richard G. Morales, Sr. - Page 2~ (JM-558)
Sec. 17. All officers within this State shall
continue to perf,>rm the duties of their offices
until their successors shall be duly qualified.
Tex. Const. art. XVI, 517. Even though an officer resigns, this
constitutional provision cperates to continue him in office until his
successor qualifies. --
Plains Common Consolidated School District No. 1
of Yoakum County v. Hay'mrst, 122 S.W.2d 322 (Tex. Civ. App. -
Amarillo 1938, no writ); ;$en v. Featherston, 69 S.W. 983 (Tex. Civ.
App. 1902, writ ref'd). See also Attorney General Opinion M-742
(1970). An officer who rstires from office will continue to hold his
office until his successor ~qualifies. Attorney General Opinion H-1224
(1978). Thus, the present justice of the peace will continue to serve
in office until a successor qualifies.
When the incumbent resigns. there will be a legal vacancy in his
office that the comnissionars court may fill, even though article XVI,
section 17, of the Texas Constitution prevents a physical vacancy in
the office. The commiss.Lmers court has authority under article V,
section 28, of the Texas %~nstitution and article 2355, V.T.C.S., to
appoint someone to fill the,office of justice of the peace until the
next general election. zee also Elec. Code 5202.002 (defining the
"next general election" at which a vacancy may be filled).
In the present case, ,the incumbent's term ends on December 31,
1986. V.T.C.S. art. 17. If the commissioners court appoints someone
to the vacancy created in ,the office of justice of the peace by the
incumbent's resignation, the appointee is entitled to serve out the
remainder of the term, anti to continue in office pursuant to article
WI, section 17, of the Texas Constitution until his successor
qualifies. Attorney Genecal Opinion M-742 (1970). The individual
elected to the office of justice of the peace in the November 1986
general election is not entitled to qualify and enter into his office
prior to January 1, 1987. --
Id.
You indicate that the individual who defeated the incumbent in
the primary is not qualified to serve as justice of the peace because
he has not attended the forty-hour course required by section 27.005
of the Government Code. For that reason, you apparently do not
believe he may be appointed to fill the incumbent's unexpired term
should the incumbent resi@. Section 27.005 of the Government Code
provides as follows:
(a) For purposes of removal under Title 100,
Revised Statutes, 'incompetency' in the case of a
justice of the pwce who is not a licensed attorney
includes failure f:o successfully complete:
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Honorable Richard G. Moralas, Sr. - Page 3 ~(JM-558)
(1) --
within one year after the date he is
first electedl a 40-hour course in the perfor-
mance of his &e; and
(2) each Following year, a 20-hour course.
(b) The coumes must be completed in an ac-
credited state-rmpported school of higher educa-
tion. (Emphasis added).
A justice of the peace who is not a licensed attorney may be removed
if he fails to successfully complete the course within a year after
the date he is first elected. The statute does not require him to
fulfill the educational requirement before he begins service as
justice of the peace.
You also inquire abcut section 1.83 of the Family Code which
provides in part:
(a) The folkwing persons are authorized to
conduct marriage ceremonies:
. . . .
A
(4) justkes of the supreme court, judges of
the court of criminal appeals, justices of the
courts of a:?peals, judges of the district,
county, and p::obatecourts, judges of the county
courts at law, courts of domestic relations and
juvenile courts, retired justices and judges of
such courts, &stices of the peace, retired jus-
tices of the LIeace, and judges and magistrates
of the federa:lcourts of this state.
(b) For the >,urposesof this section, a retired
judge of a county court, probate court, county
court at law, court of domestic relations, or
juvenile court o::a retired justice of the peace is
a person who has an aggregate of at least 15 years
of service as jZge of any court or courts or as
justice of the p%e and who has ceased to serve in
that capacity. '&e person is considered as retired
in the capacity of last service. (Emphasis added).
Under this provision, a liormer justice of the peace who served at
least 15 years in that capacity is authorized to conduct marriage
ceremonies. You state tha.tthe incumbent justice of the peace meets
the 15 year qualificatior~. Section 1.83 of the Family Code will
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Honorable Richard G. Morales, Sr. - Page 4 (JM-558)
therefore authorize him to perform marriages as a retired justice of
the peace after he leaves n:Lsoffice.
You wish to know who appoints him and authorizes him to perform
marriage ceremonies. No appointment is necessary. The Family Code
provision itself grants the power to conduct marriage ceremonies to a
retired justice of the pea-s as that term is therein defined.
SUMMARY
A justice of the peace in Webb County is a
member of the Texas County and District Retirement
System and may retire under that system when he
meets the eligibility requirements. Article XVI,
section 17, of the Texas Constitution will cause
him to continue :lnoffice despite retirement until
his successor qualifies.
Section 1.83 of the Family Code authorizes a
retired justice of the peace with 15 years of
service as a j,lstice of the peace to conduct
marriage ceremon:.es
.
J
Very truly yours
JIM MATTOX
Attorney General of Texas
JACK HIGHTOWER
First Assistant Attorney Ge:neral
MARY KELLER
Executive Assistant Attorney General
RICK GILPIN
Chairman, Opinion Conrmittee
Prepared by Susan L. Garrison
Assistant Attorney General
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