Untitled Texas Attorney General Opinion ( 1942 )

THEA~TORNEYGENERAL
OF TEAXAS
Aumrm 11.
TEXAS
Honorable A.#. Uychc
County Auditor
oFQ= COUJlty
Longview, Texas
Bear Sir: Opinion No. O-4457
Ret (1) Does Ind.uctIon into the army under
the draft law of the justice of the
pdace of Precinct No. 1, Oregg County,
Texas, create a vacancy cbn the office
of such justice of the peace?
)2) Is a justice of the peace a judge
of a ‘court of record” as the term “court
of record” Is used In the Selective
Service Act, exempting a judge of a court
of record from the requirements of said
act?
Pour latter of lnq*y, dlreated to this department, dated
February 25, 1942, omitting the formal parts, Is set out as follows:
“The Justice of the Peace of Precinct No. 1 of Gregg
County, Texas, Is within the draft age and has been placed
In Class 1-A with the paorpect of immediate Induction Into
the Army. Please advise me uhether or not his beY.ng In-
ducted Into the Army under the draft law creates a vacancy
In thQ OffiCQ of Justice of the Peace of Precinct NO. 1,
&egg County, Texas. If this question Is answered In the
affIrraatIvQ, will I have authority to pay the salary until
expiration of the term of office?
‘In view of the draft act exempting a Judge of a Court
of &cords, will you likewise advise me fhether or not the
office of the Justlce of the Peace is a Court of Records
within the meaning of this law.”
In opinion No. o-3448, addressed to the Honorable Fred Morris,
County Auditor, Folk County, Livingston, Texas, this Department follow-
1~ Article 5, Section 24, of the Constitution of Texas, And fo~lowlng
also the opinion of the court in the case of Hamilton v. King (Texas
@Iv11 Appeals, 1918), 204 S.Y. 353, held that the induction of a coz”,y
attorney Into the army did not create a vacancy In such offi,ce.
Article 5, Section 24, of the Constitution of the State of Texas, also
Includes justices of the peace in Its terms, we believe that the opinion
above referred to sufficiently ansuers your question regarding the
vacancy, and that followlng this opinion snd In accordance with the
holding of the court, your first question should be answered In the nega-
tive, that is, that the induction into the army of the justice of the
peace, referred to in your letter, does not create a vacancy Ln such
office. A copy of this opinion Is attached hereto for your information.
Honorable R.8. Myoh@, p4e 2 o-4457
Rowever, this OPiniOn also rQlatQ8 t0 Other m&tQrs, such as
the rI.Sht Of thQ OOUllty attOl’l3Qy t0 lppOInt dQpUtiQs Or a6sistaM.S to
raplace him during hIQ lbsQnCQ uhI1~ he is In the army, and you ara not
to Infer that this dQpal+nQnt intdnds to extend suoh part6 of this
Opinionto apply to jU8tiCQQ 0r thQ PQQCQ. No rQquert for a ruling on
thQsQ matter8 warn made by you and WQ do not rule on them at this t&Q.
In MswQr to your seoond question relating to whether or not
a jUQtiCQ 0r the peaca 1s a judga 0r a “court 0r record”, aQ that term
Is used In the BQlQOtiVQ QQWiCQ and trainInS act Of 1940, as amended,
wQ quote below the applicable provIsIons 0r such Selective Service Act
as r0ii0wQ8
“Selective service and training act of 1940, as amended.
“Sec. 5 (c) (1) The Vice-President of the United States,
the Governors, and all other state officials chosen by the
voters of the entire state, of the several states and terrl-
tories, members of legislative bodies of the United States
from the several states and territories, Judge8 of the courts
of record of the United States and of the several states arll
territorlea and the District of Columbia, shall, while hold-
ing such offices be deferred from training and service under
this act In the land and naval forces of the United States.”
The earliest decision we find In the reported case8 touching
upon the question of whether or not the justice court Is a court of
record 1s Xx Parts Lee Quong 31 S.W. 391, wherein the Court of Criminal
Appeals of Texas had the foliowing bo eayr
*The justices’. courts are not courts of record. Their
judgments are pronounced ore tenus, and the entry thereof
Is a mere mbIiStQriai act.’
Butcherson v. Blewett, 58 S.W. 153, Court of Civil Appeals of
Texas, In an opinion had the following to say:
‘Uhere onQ appeals from a Justice court by making, In
lieu of an appeal bond, affidavit of Inability allowed by
Revised Statutes, Artlale 1671, which provides Its may be
made before the court trying the aase within ten days of
judgment, he may show by parole that the court was In
session when the affidavit was made and filed, justice courts
not being courts of record.”
The latest decision we are able to find following this line
of reasoning is that of the Commission of Apprals of the Supreme Court
of Texas, which In 1933 heid as followsr
“Justice’s courts are not courts of record, having
no seal to authenticate process.n Warren v.BArron Bros.
Millinery Co., 23 S.W. (2d) 686; 118 Tex. 659.
And In 26 Tex. Jur., p. 803, Sec. 17, we find the following:
' HonorablQ R.8. bOhQ, PWQ 3 o-4457
Vhlefly, It 8aam8 for thQ rQaQ0n that jurtlce courts
have no sea l to luthQ!iicate their proccIa, it ha8 been
decided that thQy al-e not CoUl'tO Of I'QC0l-d."
In view 0r the foregoing, you are respectfilly advised that
it is the opinion 0r this Department that judgss 0r justice courts ar'c
not judges 0r “aourts of record” a8 that term Is used In the Selective
Service kt sf 190, as amended.
We trust that we have satisfactorily answered your
inquiry,
Yours very truly,
ATTORNEX GRNE.HAL
OF TEXAS
By a/Robert F. Cherry
Robert F. Cherry
Asslatant
FtFcxANM:wc
Enclosure
APPROVEDMAR16 1942
a/ OROVERSlZLLEki
FIRST ASSISTANT
a!ToFlNm ct8NRRJul
Approved Opinion Connnlttee by s/BvB Chairman