How does Texas appoint and pay a temporary justice of the peace?

Plain-English summary

The Montgomery County auditor asked the Attorney General five questions about temporary justices of the peace appointed under Government Code section 27.055. The county had approved contracts with five people for temporary judicial work in its justice courts after appointment by the county judge: one retired and two current Montgomery County justices of the peace, plus two sitting justices from other counties.

The Attorney General answered each question by reading the statute closely. First, because section 27.055 speaks of "a qualified person" and "the temporary justice" in the singular, a county judge may appoint only one temporary justice at a time to fill in for a justice who is temporarily unable to serve, not several. Second, the statute does not allow an "at large" temporary justice appointed before any need arises; it authorizes a temporary justice only when a regular justice is disqualified or absent and the parties request it, when a regular justice is unable to perform duties, or, in counties of 800,000 or more, when one is necessary to dispose of accumulated business.

Third, a sitting justice of the peace may serve as a temporary justice, including in the same county, as long as the person is a "qualified person," defined as someone who has served as a justice of the peace for at least four and a half years and has no conviction for a crime of moral turpitude. The statute imposes no geographic limit. Fourth, paying a temporary justice the same compensation as the regular justice (set by the commissioners court under chapter 152 of the Local Government Code) does not conflict with section 27.054, which lets justices cover for one another by request without pay from the host county; the two provisions address different situations. Finally, the Texas Constitution's bar on holding more than one civil office of emolument expressly excepts the office of justice of the peace, so a court would likely conclude that a sitting JP who also serves as a temporary JP does not violate article XVI, section 40.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later Attorney General opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

The Montgomery County Auditor (as the opinion described it): The opinion gave the county five concrete answers: one temporary justice per vacancy, no "at large" appointments, sitting justices (including in-county) may serve if qualified, the regular-justice pay rate applies without conflicting with section 27.054, and the dual-office issue is resolved by the constitution's justice-of-the-peace exception.

County judges and commissioners courts (as the opinion described it): The opinion described the county judge as the appointing authority for a single qualified temporary justice, and the commissioners court as the body that compensates the temporary justice at the regular justice's rate set under chapter 152. It distinguished that duty from the unpaid bench-exchange arrangement in section 27.054.

Justices of the peace (as the opinion described it): The opinion described a "qualified person" as a current or former justice with at least four and a half years of service and no moral-turpitude conviction, and explained that serving as a temporary justice while sitting as a regular justice fits within the constitution's express exception for the office of justice of the peace.

Common questions

Can a county judge appoint more than one temporary justice of the peace at once?
The opinion concluded no. Because section 27.055 uses the singular "a qualified person" and "the temporary justice," only one may be appointed in any given instance to cover a justice who is temporarily unable to serve.

Can a county have a temporary justice on standby "at large"?
No. The opinion explained that section 27.055 authorizes a temporary justice only when a specific need arises (a disqualified or absent justice with the parties' request, a justice unable to perform duties, or, in counties of 800,000 or more, to dispose of accumulated business), not before.

Can a current justice of the peace serve as a temporary justice in the same county?
Yes, if the person is a "qualified person." The opinion found no disqualification of sitting justices and no geographic limit in the definition, which requires at least four and a half years of service and no moral-turpitude conviction.

Does holding both a regular and temporary JP role break the one-office rule?
The opinion concluded a court would likely say no. Article XVI, section 40 bars holding more than one civil office of emolument but expressly excepts the office of justice of the peace.

Background and statutory framework

The opinion construed Government Code section 27.055 using the plain-words principle from Entergy Gulf States, Inc. v. Summers, relying on the singular phrasing of section 27.055(b) (one temporary justice), the trigger conditions in section 27.055(a), (b), and (f) (no "at large" appointment), and the "qualified person" definition in section 27.055(c). It compared section 27.052 (the nearest justice may temporarily perform an absent justice's duties).

On compensation, the opinion read section 27.055(b) together with chapter 152 of the Local Government Code (sections 152.011 and .013, setting regular-justice pay) and distinguished section 27.054(a) and (c) (uncompensated bench exchanges by request). For dual office holding, it applied article XVI, section 40(a) of the Texas Constitution and cited Turner v. Trinity Indep. Sch. Dist. Bd. of Trs., where a justice of the peace also served as a school district trustee.

Citations

Cases:

• Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex. 2009)
• Turner v. Trinity Indep. Sch. Dist. Bd. of Trs., 700 S.W.2d 1, 2 (Tex. App.-Houston [14th Dist.] 1983, no writ)

Statutes:

• Tex. Gov't Code Ann. § 27.055(b) (West Supp. 2012); § 27.055(a), (b), (f); § 27.055(a)-(b); § 27.055(c); § 27.052 (West 2004); § 27.054(a); § 27.054(c)
• Tex. Loc. Gov't Code Ann. §§ 152.011, .013 (West 2008)
• Tex. Const. art. XVI, § 40(a)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-1005
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2013/ga1005.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

May 6, 2013

Ms. Phyllis L. Martin Opinion No. GA-1005
Montgomery County Auditor
Post Office Box 539 Re: The appointment and compensation of
Conroe, Texas 77305 temporary justices of the peace (RQ-1099-GA)

Dear Ms. Martin:

You ask several questions relating to temporary justices of the peace appointed under section 27.055 of the Government Code.[1] You explain that the Montgomery County Commissioners Court has approved contracts with five people for temporary judicial services in the County's Justice of the Peace Courts, following their appointment by the County Judge. Request Letter at 1. These five people include one retired and two current Montgomery County justices of the peace, as well as two sitting justices of the peace from other counties. Id. at 2.

You first ask whether a county judge can appoint more than one temporary justice of the peace to serve when a justice of the peace is temporarily unable to perform official duties. Id. at 1. In construing a statute, courts recognize that the words the Legislature chooses are the "surest guide to legislative intent." Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex. 2009). Section 27.055 of the Government Code provides that, when a justice of the peace is temporarily unable to perform his duties, a county judge may appoint "a qualified person to serve as temporary justice" of the peace, and that the commissioners court "shall compensate the temporary justice" in a certain amount. TEX. GOV'T CODE ANN. § 27.055(b) (West Supp. 2012) (emphasis added). The phrases "a qualified person" and "the temporary justice" are singular in number and indicate that the Legislature intended to limit the appointment of a temporary justice in any given instance to one individual. See id. Therefore, a county judge may appoint only one qualified person, and not more, to serve as a temporary justice of the peace when that precinct's justice of the peace is temporarily unable to perform official duties for any of the reasons provided in section 27.055.

You next ask whether a county judge can appoint a special or temporary justice of the peace to serve "at large" for any justice court in a county. Request Letter at 1. We understand this question to ask whether a temporary justice can be appointed before any regular justice of the peace is unable to perform official duties, so that the "at large" temporary justice of the peace would serve wherever needed at some undetermined time in the future. Under section 27.055, a county judge is authorized to appoint a temporary justice only (1) when a regular justice is disqualified from a case or otherwise absent and the parties request it, (2) when a regular justice is unable to perform official duties, or (3) when a temporary justice is "necessary" to help a precinct "dispose of accumulated business" in counties with a population of 800,000 or more. TEX. GOV'T CODE ANN. § 27.055(a), (b), (f) (West Supp. 2012). Therefore, section 27.055 does not permit a county judge to appoint an "at large" temporary justice before any of these needs arise.

Next, you ask whether the temporary justice of the peace can be a sitting justice of the peace and, if so, whether the temporary justice can be a sitting justice in the same county. Request Letter at 1. Under section 27.055, a county judge may appoint any "qualified person" as a temporary justice of the peace. TEX. GOV'T CODE ANN. § 27.055(a)-(b) (West Supp. 2012). The statute defines a "qualified person" as "a person who has served as a justice of the peace for not less than 4 1/2 years and who has not been convicted of a criminal offense that involves moral turpitude." Id. § 27.055(c). This definition neither disqualifies sitting justices of the peace nor imposes a geographic limitation that disqualifies justices of the peace from certain counties. A sitting justice of the peace who meets the definition of a "qualified person" may serve as a temporary justice under section 27.055 in place of a regular justice in the same county. Cf. TEX. GOV'T CODE ANN. § 27.052 (West 2004) (providing that if a justice of the peace "is absent or unable or unwilling to perform his duties, the nearest justice in the county may temporarily perform the duties of the office").

You then ask whether additional compensation can be given to a sitting justice who serves as a temporary justice under section 27.055(b), without violating either chapter 152 of the Local Government Code or section 27.054 of the Government Code. Request Letter at 1. Subsection 27.055(b) directs the commissioners court to "compensate the temporary justice by the day, week, or month in an amount equal to the compensation of the regular justice." TEX. GOV'T CODE ANN. § 27.055(b) (West Supp. 2012). The amount of compensation for a regular justice of the peace is set by the commissioners court in accordance with chapter 152 of the Local Government Code. TEX. LOC. GOV'T CODE ANN. §§ 152.011, .013 (West 2008). Therefore, subsection 27.055(b) entitles a temporary justice to compensation in an amount that is set by the commissioners court for regular justices of the peace in accordance with chapter 152.

Section 27.054 allows a justice of the peace to "hold court for any other justice in any county at the request of that justice." TEX. GOV'T CODE ANN. § 27.054(a) (West Supp. 2012) (emphasis added). However, any justice who does so is "not entitled to receive compensation from the commissioners court of the county in which the regular justice serves." Id. § 27.054(c). The commissioners court's duty to compensate a temporary justice under section 27.055 applies to a "qualified person" who, by contrast, is appointed by the county judge. Id. § 27.055(b). Compensation that would be available to temporary justices of the peace is not authorized for sitting justices who exchange benches under section 27.054, even in the same county. Subsection 27.055(b) thus does not conflict with section 27.054.

Last, you ask whether a justice of the peace can "hold more than one office, as provided by Article 16, Section 40 of the Constitution, when the offices being held are both for justice of the peace." Request Letter at 1. Article XVI, section 40 provides that "[n]o person shall hold or exercise at the same time, more than one civil office of emolument, except that of Justice of the Peace . . . ." TEX. CONST. art. XVI, § 40(a) (emphasis added). The prohibition against dual office holding expressly excepts the office of justice of the peace. See, e.g., Turner v. Trinity Indep. Sch. Dist. Bd. of Trs., 700 S.W.2d 1, 2 (Tex. App.-Houston [14th Dist.] 1983, no writ) (holding that a justice of the peace could simultaneously serve as trustee of an independent school district). Therefore, assuming for the sake of argument that a sitting justice of the peace would hold dual offices by also serving as a temporary justice under section 27.055, a court would likely conclude that doing so is constitutional under the exception provided in article XVI, section 40.

SUMMARY

Section 27.055 of the Government Code permits the appointment of one qualified person to serve as temporary justice of the peace to replace an individual justice of the peace who is unable to perform the duties of the office. Section 27.055 does not permit a county judge to appoint an "at large" temporary justice of the peace. A sitting justice of the peace may serve as a temporary justice of the peace under section 27.055, in place of a regular justice of the peace in the same county, provided the justice of the peace is a "qualified person."

The compensation of a temporary justice of the peace as outlined under section 27.055 of the Government Code does not conflict with section 27.054 of the Government Code or chapter 152 of the Local Government Code.

A court would likely conclude that a sitting justice of the peace who also serves as a temporary justice of the peace under section 27.055 does not violate article XVI, section 40 of the Texas Constitution.

Very truly yours,

DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

Stephen L. Tatum, Jr.
Assistant Attorney General, Opinion Committee

[1] Letter from Ms. Phyllis L. Martin, Montgomery Cnty. Auditor, to Honorable Greg Abbott, Tex. Att'y Gen. at 1 (Nov. 9, 2012), http://www.texasattorneygeneral.gov/opin ("Request Letter").