Untitled Texas Attorney General Opinion

The Attorney General of Texas
December 31, 1982
MARK WHITE
Attorney General
Honorable Mike Westergren Opinion No. MW-589
Supreme Court Building
Nueces County Attorney
P. 0. BOX 12546
Courthouse, Room 206 Re: construction of article
Austin, TX. 76711. 2546
512,475.2501 Corpus Christi, Texas 78401 1.83 of the Texas Family Code
Telex 9101874-1367 (persons authorized to conduct
Telecopier 5121475.0266 marriage ceremony)
Dear Mr. Westergren:
1607 Main St.. Suite 1400
Dallas, TX. 75201-4709
2141742-6944 You have asked whether a person who served as a justice of the
peace for more than 15 years and then became a county commissioner is
authorized to perform marriage ceremonies under section 1.83 of the
4624 Alberta Ave., Suite 160
Texas Family Code. That section provides in part:
El Paso, TX. 79905.2793
915/533-3464
(a) The following persons are authorized to
conduct marriage ceremonies:
1220 Dallas Ave., Suite 202
Houston, TX. 77002.6966
7131650.0666
.. . .
(4) justices of the supreme court, judges
806 Broadway, Suite 312 of the court of criminal appeals, justices of
Lubbock. TX. 79401.3479
the courts of appeals, judges of the district,
8061747-5236
county, and probate courts, judges of the
county courts at law, courts of domestic
4309 N. Tenth. Suite B relations and juvenile courts, retired justices
McA,,en, TX. 76501-1665 and judges of such courts, justices of the
5121662.4547
PfSlCl?, retired justices of the peace, and
judges and magistrates of the federal courts of
200 Main Plaza. Suite 400 this state.
San Antonio. TX. 76205.2797
5121225-4191 (b) For the purposes of this section, a
retired judge of a county court, probate court,
An Equal Opportunity1 county court at law, court of domestic relations,
Affirmative Action Employer or juvenile court or a retired justice of the
peace is a person who has an aggregate of at least
15 years of service as judge of any court or
courts or as justice of the peace and who has
ceased to serve in that capacity. The person is
considered as retired in the capacity of last
SWVLX. (Emphasis added).
In your request letter, you stated as follows:
p. 2188
Honorable Mike Westergren - Page 2 NW-589)
Just what interpretation is to be given to the
last sentence [of subsection (b)] is the precise
question.... In the context of the entire
paragraph the last sentence takes on at least two
possible interpretations. One, does it mean that
no matter how many years one served in a named
judicial capacity that if he served in any other
capacity after ceasing in such judicial capacity
he would not thereby be considered ‘retired in the
capacity’ of such judicial service? Or, second,
does the last sentence simply provide guidance as
to what capacity one is retired in, if they have
combined service in one or more named judicial
capacities including that of justice of the peace
in order to arrive at the full fifteen years of
service required by sub-section 1.83....
There are three reasons why, in our view, the second of your two
suggested interpretations is clearly the correct one. The first
reason involves the word “capacity.” In our opinion, it is not
coincidental that the legislature used this word in the last sentence
of subsection (b) and in the preceding sentence. The fact that it did
indicates that it meant for the word to have the same meaning in both
contexts. In other words, the “capacity” to which the last sentence
refers is one of the judicial “capacities” named in the preceding
sentence. We note that if this were not the case, a question would
arise as to what the word does mean in the context of the last
sentence. Read broadly enough, it could embrace virtually any office
or employment.
The second reason involves legislative intent. Under section
1.83, a person who serves in more than one of the named judicial
capacities may accumulate the 15 years of judicial service that he
needs to be “retired” within the meaning of this section by
aggregating his years of service in each capacity. Without guidance,
however, one could not know in which judicial capacity such person
would be deemed to have retired. We believe the legislature added the
last sentence in subsection (b) to provide such guidance. This
sentence makes it clear that a person who served in more than one of
the named judicial capacities and who satisfies the criteria set forth
Ian subsection (b) shall be deemed to have “retired” in the judicial
capacity in which he last served. Thus, a person who served as a
probate court judge for 20 years and then served as a justice of the
peace for one month would be a “retired justice of the peace” within
the meaning of subsection (a)(4).
The third reason also involves legislative intent. Under the
first of your suggested interpretations, a person who served in one or
more of the named judicial capacities could not be a “retired”
justice, judge, or justice of the peace within the meaning of
p. 2189
Honorable Mike Westergren - Page 3 (MW-589)
subsection (a)(4) if he later served in some "capacity" which is not
listed in that subsection and then retired in that capacity. This
would be true even if he served in the latter capacity for one day.
Since we can perceive no reason why the legislature could have
intended such an illogical result, we reject this interpretation as
implausible. We believe that it would defeat the legislature's
objective in enacting section 1.83, whereas the other interpretation
is entirely consistent with that objective. See Citizens Bank of
Bryan v. First State Bank of Hearne, 580 S.W.2d 344 (Tex. 1979) (where
statutory language susceptible to two constructions, one of which
would carry out and the other defeat its manifest purpose, it should
receive the former construction).
In the example that you provided, the individual in question
served as a justice of the peace for 15 years and is no longer serving
in that capacity. As we construe the last sentence of subsection (b),
his "capacity of last service" is justice of the peace. We therefore
answer your question in the affirmative.
SUMMARY
A person who served as a justice of the peace
for more than 15 years and then became a county
cormnissioner is authorized to perform marriage
ceremonies under section 1.83 of the Texas Family
Code.
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Jon Bible
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Jim Moellinger
p. 2190