In a Texas county, does the sheriff or the commissioners court decide where the justice of the peace office is located?

Texas AG Opinion JM-1054: Who Decides Where the Justice of the Peace Office Goes?

Plain-English summary

This one started as a turf fight inside a county building. In Hardeman County, the justice of the peace worked out of a county-owned building known as the Law Enforcement Building, which also held the jail, the sheriff's office, and a local Department of Public Safety office. The sheriff wanted the JP moved out and over to the courthouse, and his theory was that because he is the keeper of the jail, he gets to decide who occupies the building. The county attorney asked the Attorney General to settle it: is the JP office's location the sheriff's call or the commissioners court's?

The Attorney General came down squarely on the side of the commissioners court. The sheriff's jail-keeper role does real work, but it is about prisoners, not real estate. The statute that makes the sheriff keeper of the county jail obligates him to safely keep the prisoners committed to it, subject to the orders of the proper court. Nothing in that role lets him evict a justice of the peace, who is not a prisoner or an employee but an elected constitutional official, from a building just because the jail happens to share the space.

The sheriff also has a separate statutory role over the courthouse: he has charge and control of the county courthouse, but expressly "subject to the regulations of the commissioners court." The AG pointed to a 1941 Texas Supreme Court decision reading that same provision narrowly. The sheriff's charge and control of the courthouse is merely for keeping order and preserving the property, ministerial duties that fit a peace officer's job. It is not a power to decide which official sits where. An older Attorney General opinion had made a related point: the fact that a commissioners court could let someone run a cold drink stand in an unused courthouse alcove did not mean the sheriff could exercise that same discretion. So neither the jail-keeper statute nor the courthouse-control statute gives the sheriff any say over where county officers' offices are located.

Authority over that question sits with the commissioners court, and the AG explained why. Under the Texas Constitution, the commissioners court exercises the powers and jurisdiction over county business conferred by the constitution and laws, and courts have recognized that in exercising those powers the commissioners court has implied authority to use broad discretion to accomplish its purposes. The Local Government Code requires the commissioners court to provide a courthouse and offices for county officers. As the active governing body of the county, the commissioners court has at least the implied authority to regulate the use of the courthouse and other county buildings. It follows that the commissioners court, not the sheriff, decides whether the justice of the peace office is located in the courthouse or in another county-owned building.

Currency note

This opinion was issued in 1989. Subsequent statutory amendments, court decisions, or later AG 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.

The Local Government Code provisions cited here (sections 291.001, 291.003, 292.004, and 351.041) have been amended since 1989, though the basic allocation of authority over county buildings to the commissioners court has remained stable. Anyone facing a present-day dispute over where a county office is located should check the current Local Government Code and current case law rather than rely on the 1989 sections cited here.

Who this opinion affected (as of 1989)

Commissioners courts: The opinion confirmed their authority to decide where county officers' offices sit within the courthouse and other county buildings, as part of their broader control over county property.

Sheriffs: The opinion drew the limits of the sheriff's authority. Being keeper of the jail and having charge of the courthouse are about order, security, and prisoners, not about deciding which official occupies which room.

Justices of the peace and other county officers: The opinion protected them from being relocated at the sheriff's say-so, confirming that only the commissioners court can make that decision.

Common questions

Can a sheriff move a justice of the peace out of a county building?
No. The Attorney General concluded that the sheriff's role as keeper of the jail does not authorize him to remove the justice of the peace, an elected constitutional official, from a county building. The commissioners court controls the office's location.

Doesn't the sheriff control the courthouse?
The sheriff has charge and control of the courthouse, but subject to the commissioners court's regulations, and the courts read that as a duty to keep order and preserve the property. It is not authority to decide where offices are located.

Who decides where county offices are located?
The commissioners court. It is required to provide a courthouse and offices for county officers and, as the county's governing body, has the implied authority to regulate the use of the courthouse and other county buildings.

Background and statutory framework

The Hardeman County Attorney explained that the justice of the peace occupied office space in a county-owned building that also housed the jail, the sheriff's office, and the local Department of Public Safety office, and that the sheriff wanted the justice of the peace moved to the courthouse. The question was whether the location of that office is within the province of the sheriff or the commissioners court. Section 292.004 of the Local Government Code allows the commissioners court to provide, inside the county-seat municipality, an auxiliary courthouse, a jail, a parking garage, a facility for district, county, and precinct administrative and judicial offices and courtrooms, or any facility related to the administration of justice. The building in question was known as the "Law Enforcement Building," and the sheriff, as keeper of the jail, felt he was authorized to determine who occupied it.

Section 351.041(a) provides that the sheriff of each county is the keeper of the county jail and shall safely keep all prisoners committed to it by lawful authority, subject to the order of the proper court. A justice of the peace is an elected constitutional official. Tex. Const. art. V, § 18. Because the justice of the peace conducts the business of the office, including trials, in the room he occupies, the fact that his quarters are in the same building as the jail does not vest the sheriff with authority to remove him from the building.

The opinion next considered section 291.003 (formerly article 6872, V.T.C.S.), which provides that the county sheriff has charge and control of the county courthouse, subject to the regulations of the commissioners court. In Anderson v. Wood, 152 S.W.2d 1084, 1086 (Tex. 1941), the Texas Supreme Court construed that statute as placing the sheriff in charge and control of the courthouse merely for the purpose of keeping order and preserving the property, ministerial duties in keeping with a peace officer's duties. In Attorney General Opinion O-4747 (1942), it was concluded that the holding in Dodson v. Marshall, 118 S.W.2d 621 (Tex. Civ. App. - Waco 1938, writ ref'd w.o.m.), that the commissioners court had discretionary power to allow a person to operate a cold drink stand in an unused courthouse alcove, was not authority for the sheriff to exercise the same power. Neither section 291.003 nor section 351.041(a) vests the sheriff with authority to determine the location of the offices of the justice of the peace or of other precinct or county officials in the courthouse or other buildings operated by the county for its official business.

Article V, section 18 of the Texas Constitution provides that the commissioners court shall exercise the powers and jurisdiction over all county business conferred by the constitution and the laws of the state, or as may be prescribed. In Cosby v. County Commissioners of Randall County, 712 S.W.2d 246 (Tex. App. - Amarillo 1986, writ ref'd n.r.e.), the court noted that in exercising powers conferred on it, the commissioners court has implied authority to exercise broad discretion to accomplish the intended purposes. Section 291.001 requires the commissioners court to provide a courthouse and offices for county officers. See also Koehler v. Earl, 14 S.W. 28 (Tex. 1890); Alexander v. Svoboda, 297 S.W. 560 (Tex. Civ. App. - Galveston 1927), rev'd on other grounds, 3 S.W.2d 423 (Tex. 1928) (justice court terms held at times and places designated by commissioners court). The commissioners court is the active governing body of the county and has at least the implied authority to regulate the use of the courthouse and other county buildings. See Dodson v. Marshall, supra. It follows that the commissioners court has the authority to determine whether the office of the justice of the peace is located in the courthouse or other county-owned buildings.

Citations

Statutory and constitutional authority:

• Local Gov't Code § 291.001 (courthouse and offices for county officers); § 291.003 (sheriff's charge of courthouse); § 292.004 (county facilities); § 351.041(a) (sheriff as keeper of the jail)
• V.T.C.S. art. 6872 (former; now Local Gov't Code § 291.003)
• Tex. Const. art. V, § 18 (justice of the peace; commissioners court powers)

Cases cited:

• Anderson v. Wood, 152 S.W.2d 1084, 1086 (Tex. 1941)
• Dodson v. Marshall, 118 S.W.2d 621 (Tex. Civ. App. - Waco 1938, writ ref'd w.o.m.)
• Cosby v. County Commissioners of Randall County, 712 S.W.2d 246 (Tex. App. - Amarillo 1986, writ ref'd n.r.e.)
• Koehler v. Earl, 14 S.W. 28 (Tex. 1890)
• Alexander v. Svoboda, 297 S.W. 560 (Tex. Civ. App. - Galveston 1927), rev'd on other grounds, 3 S.W.2d 423 (Tex. 1928)

Attorney General materials referenced:

• O-4747 (1942)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1054
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1989/jm1054.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor OCR errors may remain; the linked PDF is authoritative.

June 8, 1989

Honorable Stanley R. Watson
County Attorney
Hardeman County
P. O. Box 506
Quanah, Texas 79252

Opinion No. JM-1054

Re: Location of justice of the peace offices in Hardeman County (RQ-1688)

Dear Mr. Watson:

You advise that the office space used by the justice of the peace is presently located in a building owned by the county that also houses the jail facility, the sheriff's office and offices of the local office of the Department of Public Safety. Information furnished by you reflects that the sheriff wants the justice of the peace moved to the courthouse. This background has prompted your question as to whether the location of that office is within the province of the sheriff or the commissioners court.

Section 292.004 of the Local Government Code provides in pertinent part:

(a) The commissioners court of a county may provide, inside a municipality designated as the county seat, an auxiliary courthouse, a jail, a parking garage, a facility for district, county, and precinct administrative and judicial offices and courtrooms, or any facility related to the administration of civil or criminal justice.

Information furnished by you reflects that the facility in question is known as the "Law Enforcement Building" and the sheriff, "as keeper of the jail," feels he is authorized to determine who occupies the building.

Section 351.041(a) of the Local Government Code provides:

The sheriff of each county is the keeper of the county jail. The sheriff shall safely keep all prisoners committed to the jail by a lawful authority, subject to an order of the proper court.

A justice of the peace is an elected constitutional official. Tex. Const. art. V, § 18. You advise that the justice of the peace conducts the business of his office, including the trial of cases in the room he occupies. The fact that the justice of the peace has quarters in the same building where the jail is located does not vest the sheriff with authority to remove the justice of the peace from the building.

We next consider whether the sheriff is vested with authority to determine the location of the justice of the peace under section 291.003 of the Local Government Code (formerly article 6872, V.T.C.S.). Section 291.003 relates to control of the courthouse, providing "the county sheriff shall have charge and control of the county courthouse, subject to the regulations of the commissioners court." In Anderson v. Wood, 152 S.W.2d 1084, 1086 (Tex. 1941), the Texas Supreme Court construed article 6872 (now Local Government Code section 291.003), as follows:

The above statute places the sheriff in charge and control of the court house merely for the purpose of keeping order and preserving the property. These are ministerial duties that are in keeping with the duties of a peace officer.

In Attorney General Opinion O-4747 (1942), it was concluded that the holding in Dodson v. Marshall, 118 S.W.2d 621 (Tex. Civ. App. - Waco 1938, writ ref'd w.o.m.), that the commissioners court had discretionary power to allow a person to operate a cold drink stand in an unused alcove in the courthouse was not authority for the sheriff to exercise the same power. Neither section 291.003 nor section 351.041(a) vests the sheriff with authority to determine the location of the offices of the justice of the peace or of other precinct or county officials in the courthouse or other buildings operated by the county for its official business.

Article V, section 18 of the Texas Constitution provides that the commissioners court "shall exercise such powers and jurisdiction over all county business, as is conferred by this Constitution and the laws of the State, or as may be hereafter prescribed." In Cosby v. County Commissioners of Randall County, 712 S.W.2d 246 (Tex. App. - Amarillo 1986, writ ref'd n.r.e.), it was noted that in the exercise of powers conferred upon the commissioners court, the court has implied authority to exercise a broad discretion to accomplish the purposes intended. Section 291.001 of the Local Government Code requires the commissioners court to provide a courthouse and offices for county officers. See also Koehler v. Earl, 14 S.W. 28 (Tex. 1890); Alexander v. Svoboda, 297 S.W. 560 (Tex. Civ. App. - Galveston 1927), rev'd on other grounds, 3 S.W.2d 423 (Tex. 1928) (justice court terms held at times and places designated by commissioners court). The commissioners court is the active governing body of the county and has at least the implied authority to regulate the use of the courthouse and other county buildings. See Dodson v. Marshall, supra. It follows that the commissioners court has the authority to determine whether the office of the justice of the peace shall be located in the courthouse or other county owned buildings.

SUMMARY

The location of the quarters in the courthouse or county owned buildings where the justice of the peace conducts trials and the business of that office is within the province of the commissioners court of Hardeman County.

Very truly yours,

JIM MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Tom G. Davis
Assistant Attorney General