November 19, 1951 Hon. G4orge M. Kelton opiaion HO:V-13416. ‘County Attorney Ector County Re: Legslitr of a per@Ola'I Odesse, Texas b4ing et tbe uu'tlme 4 jwtico of tbB p4rce pd a lebonr for the Perk D~.rislon"of a Dear Sir: - county. You heve wqutisted an OplnLoa on the follow- ing question: "Your offlc4 rvqaonted ia resrpectfully to'furnish 4n opinion 41)to Mmtbe? or not a county 4mplo~44 iatihe capsclty oi leborer ,. for the Park Division may at the 40140ticw s4rv4 as JustIce of the Peac4 for on4 of the precincts in acid County.” The prohlbltioa of Section 40 of Article XVI of the Constitution ogoinat the holding of lDJSIth8n one civil 0rfice of emolum4nt by the s4a4 pereon et the 44~14 time does not apply to the office ;oi jwtlce of the peace tar the reaeon that this office la ex- press1 4xcepted from its provisions. Att'y Gen. Op. v-828 f&g). 4110, it ia our opialon thet Section 40 di grtlcle,XVX la84no af+Mcatiota to Tour roqwrt, since a 18bonr in the Perk DivFslon is nqt 8 civil osfic4 of 4laolllm4nt. The remetning questloa to be'detmaid 18 vhvther the duties OS a laborer in the "Park Dlviaion" of a couaty and the duties OS the office of jurtlce ot the p44ce are Lncompetlble. The t4st4 to be applied Ln determining incoaprtlbillty are concis4lf rt8ted in Knucklea v. "One oi the most important tcata 08 to vhbther offices era lnc#patlblv 18 Sound in th princciplsthat tbe leeouipetlblllt~ Iv rem cognhed rbuvor one ia ruborddirrete to fba Hon. George hf. Kelton, page 2 (v-1346) other in some of its important rnd principal duties, or Is subjsct to supervision by the other, or where a contrariety and sntrgonis8 would result in the attempt by on4 person to discharge the duties of both. Under this prln- ciple two offices 814 LncompatLble vher4 the incumbent of one has th4 povsr to r48ove Wm Incumbent OS the other, though the contingency on which the power may be exsrciaed is remote, and it also exists where the iacuabent OS one offlce has the power of appointment as to the other office .‘I Mechem on Public Office8 rnd OIfIcaw (1890), Sec. 422, p. 268, states the rule 48 Sollovrc “It se4ms to be well settled that the q er4 physical imporsibility of one person’s p4rSormlng the duties OS the tvo off;ces 48 from the lack of time or th4 ln4bilitr to be in two places at the same moment, ir not the incompetiblllty h4r4 referrod to. It murt be 8n 1ncDnaiStenCy in the iUnCtiOn Of th4 tV0 offices, as judge sad clerk of the a4me court, claimant and auditor, and the like.” Applying these tests to the positions in qu4s- tlon, v4 ere unable to perceive any incompatibility, for neither is subject to my supervision of tha other, nor would any antagonism result In an attempt by on4 person to discharge the dutlcs of both. We know of no constitutional or statutory pro- vision prohibiting a person’s being et the same time 4 justice of the pcec4 and a laborer ior the “Park DLvi- aion” of a county. In vi.4~ of the Poregoing, we agrae with your conclusion that a couuty employes in the cape- city of 4 laborer for the "Park Division may at the seme time serve as justice of the peace. SUMNARY A county employee in the capacity of laborer for the "Parks Division" is not Hon. George M. Kelton, peg4 3 (v-1346) prohibited from being at the aam t'lm4 a justice 0s th4 peece. APPROVED: Yours very truly, J. C. Davis, Jr. FRIGE DARIBL county ArrearsDivision tbttomey Geaeraa (. Everett Hutchinson Ex4cutiv4 Assistsnt Cherles D. M&hews First Asaistsnt JR:vh .