Untitled Texas Attorney General Opinion ( 1974 )

August 29, 1974
The Honorable Maurice S. Pipkin Opinion No. H- 386
Executive Director, State Judicial
Qualifications Commission Re: Whether Justice of the
P. 0. Box 12265, Capitol Station Peace may delegate responsi-
Austin, Texas 78711 bility to employees of this
office.
Dear Mr. Pipkin:
Your letter requesting our opinion states that the State Judicial
Qualifications Commission has received a number of complaints con-
cerning the practice of justices of the peace delegating authority to clerks,
secretaries and spouses to accept pleas of guilty, to levy fines on guilty
pleas, to set bonds when a defendant pleads not guilty, etc.. You have
asked our opinion as to the propriety of this practice which you have
found to exist in some instances.
The office of justice of the peace is created by Article 5, §U,
Texas Constitution. Article 5, 0 19 of the Constitution defines the limits
of their jurisdiction.
Sec. 19< Justices of the peace shall have
jurisdiction 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, ex-
clusive of interest, of which exclusive original
jurisdiction is not given to the District or County
Courts; and such other jurisdiction, criminal and
civil, as may be provided by law, under such
p. 1815
The Honorable Maurice S. Pipkin page 2 (H-386)
regulations as ~may be prescribed by law; and
appeals to the County Courts shall be allowed
in ally cases decided in Justices’ Courts where
the judgment is for more than twenty doll,ars
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
provided by law.
Pursuant to the constitutional authorization, the Legislature has
provided by law. for jurisdiction in numerous other situations. See, for
example, Articles 2385 and 2386, V.T. C. S.‘; Articles 4.11, 16.15, 49.01,
50.01, V. T. C. C. P.
Furthermore, the’Legislature has provided for the performance of
the duties of a justice of the peace when he is absent or unable or unwilling
to perform the duties of his office himself, Article 2377, TV. T. C. S., or
when he is unable to perform them because of sickness or injury or other
disqualification. Article 2399, V. T. C. S.
No authority exists for a justice to perform his duties or exercise
his powers by delegation to a secretary, clerk or spouse. The maxim,‘-’
delegatas non potest delegare (the person to whom, an office or duty is
delegated cannot lawfully devolve the duty on ,another unless expressly
authorized to do so) is applicable to this situation. Newsom v. Adams,
451 S. W. 2d 948 (Tex. Civ. App., Beaumont 19’70, no writ); Moody v.
Texas 373 S. W. 2d 793 (Tex. Civ. App., Austin,
1963, writ ref’d., n. r. e.); 47 TEX. JUR. 2d Public Officers, $114, p.
149, et seq.
Those powers and duties of a public officer which are judicial in
nature, as distinguished from those ,which are ministerial, cannot be
delegated to another. Padgett v. Young County, 204 S. W. 1046 (Tex.
Civ. App., Ft. Worth 1918, writ dism’d); Navarro County v. Tullos,
237 S. W. 982 (Tex. Civ. App., Dallas 1922, err. ref’d.).
p. 1816
The Honorable Maurice S. Pipkin page 2 (H-386)
In our opinion the acts of a justice of the peace in accepting pleas
of guilty~, levying fines on such pleas and setting bonds on pleas of not
guilty are among the judicial functions which a justice of the peace may
not delegate to his clerk, his secretary, his spouse, or anyone else.
SUMMARY
A justice of the peace may not delegate to any
other person the exercise of judicial powers and
duties devolved upon him by the Constitution or
statutes of the state.
Very truly yours,
APPVVED:
&$I@
DAVID M. KENDALL, Chairman
Opinion Committee
p. ,1817