Can a Texas justice of the peace who lost an election retire before his term ends, and who runs the office until a replacement takes over?

Texas AG Opinion JM-558: JP Retirement Status

Plain-English summary

A Webb County justice of the peace lost his primary election and wanted to retire before the November general election. The county attorney asked whether he could officially become a retiree if he stepped down early, and several related questions about who would fill the office and what the outgoing JP could still do. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0558.pdf

The AG worked through it piece by piece. A justice of the peace in a county that participates in the Texas County and District Retirement System is a member of that system and may retire once he meets the eligibility requirements; losing an election does not block him. But retiring does not empty the office. Article XVI, section 17 of the Texas Constitution keeps every officer performing the duties of the office until a successor qualifies, so the JP holds over even after he retires. If he formally resigns, that creates a legal vacancy the commissioners court can fill by appointment under article V, section 28 of the Constitution and article 2355, with the appointee serving until the next general election. The winner of the November 1986 election could not take office before January 1, 1987. On the training question, a JP who is not a lawyer can be removed for failing to finish the required 40-hour course within a year of first being elected, but the law does not require finishing the course before starting the job. Finally, under Family Code section 1.83, a retired JP who served at least 15 years may perform marriage ceremonies, and no appointment is needed for that. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0558.pdf

Currency note

This opinion was issued in 1986. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. The retirement statutes cited here (V.T.C.S. Title 110B) and the Family Code marriage provision have since been recodified. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule mentioned here.

Common questions

Can a justice of the peace who lost his election still retire?

Yes. The AG concluded that a JP in a participating county is a member of the Texas County and District Retirement System and may retire when he satisfies the eligibility requirements for a service retirement annuity. Losing an election does not prevent him from retiring. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0558.pdf

If he retires, does the office sit empty until January?

No. Article XVI, section 17 of the Texas Constitution requires every officer to keep performing the duties of the office until a successor qualifies. So a retiring JP continues to serve, and the person elected in November cannot qualify and enter the office before January 1, 1987. If the incumbent resigns instead, the commissioners court may appoint someone to fill the vacancy until the next general election. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0558.pdf

Does a new JP have to finish the training course before taking office?

No. Government Code section 27.005 makes failure to complete the 40-hour course within a year after first being elected a ground for removal of a non-lawyer JP, but it does not require completing the course before starting to serve. So not having taken the course yet does not, by itself, disqualify someone from being appointed. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0558.pdf

Can a retired justice of the peace still perform weddings?

Yes, if he served long enough. Family Code section 1.83 authorizes a retired justice of the peace with an aggregate of at least 15 years of service as a JP to conduct marriage ceremonies. No appointment is necessary; the statute itself grants the power. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0558.pdf

Background and statutory framework

Employees of a county that participates in the Texas County and District Retirement System are members of that system under V.T.C.S. Title 110B, section 52.001, and the statute's definition of "employee" (section 51.001(6), read with section 51.001(14)) includes an elected county officer whose office normally requires at least 900 hours of service a year and who is compensated by the county. A justice of the peace fits that definition and so is a member, as earlier Attorney General Opinion H-202 (1974) recognized; JPs are not eligible for the separate Judicial Retirement System (section 42.001). "Retirement" means withdrawal from service with a retirement benefit granted under the system (section 51.001(10)), and section 54.102 sets the eligibility requirements. Losing an election does not bar retirement. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0558.pdf

The holdover rule comes from article XVI, section 17 of the Texas Constitution, which continues an officer in office until a successor qualifies even after resignation or retirement, as shown in Plains Common Consolidated School District No. 1 of Yoakum County v. Hayhurst and Keen v. Featherston. A resignation creates a legal vacancy the commissioners court may fill under article V, section 28 of the Constitution and V.T.C.S. article 2355, with "next general election" defined by Election Code section 202.002. On qualifications, Government Code section 27.005 treats a non-lawyer JP's failure to complete a 40-hour course within a year of first election (and a 20-hour course each following year) as "incompetency" for removal purposes, but does not condition taking office on completing the course first. And Family Code section 1.83 lists retired justices of the peace among those authorized to conduct marriages, defining a retired JP as one with at least 15 years of aggregate service who has ceased to serve. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0558.pdf

Citations and references

The opinion cited the following authorities. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0558.pdf

Statutes and constitutional provisions:

• V.T.C.S. Title 110B, §§ 51.001(6), 51.001(10), 51.001(14), 52.001, 54.102, 42.001 (Texas County and District Retirement System; Judicial Retirement System)
• Tex. Const. art. XVI, § 17 (officers hold over until successor qualifies)
• Tex. Const. art. V, § 28; V.T.C.S. art. 2355 (commissioners court fills vacancy)
• Tex. Elec. Code § 202.002 (defining "next general election")
• Tex. Gov't Code § 27.005 (JP training requirement; removal for incompetency)
• Tex. Fam. Code § 1.83 (persons authorized to conduct marriages; retired JPs)

Cases:

• Plains Common Consolidated School District No. 1 of Yoakum County v. Hayhurst, 122 S.W.2d 322 (Tex. Civ. App. - Amarillo 1938, no writ)
• Keen v. Featherston, 69 S.W. 983 (Tex. Civ. App. 1902, writ ref'd)

Attorney General opinions cited:

• Attorney General Opinion H-202 (1974); H-927 (1977); H-1230 (1978); H-1224 (1978); M-742 (1970)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0558
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0558.pdf

Original opinion text

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

October 9, 1986

Honorable Richard G. Morales, Sr.
Webb County Attorney
1104 Victoria
Laredo, Texas 78040

Opinion No. JM-558

Re: Retirement status of a justice of the peace

Dear Mr. Morales:

You request advice about the retirement of an individual presently serving as justice of the peace in Webb County. This individual lost the primary election and wishes to retire before the general election. You ask whether he will officially be a retiree if he does so.

Employees of a county which participates in the Texas County and District Retirement System are members of that retirement system. V.T.C.S. Title 110B, § 52.001. We have been informed that Webb County participates in that retirement system. The relevant statute defines "employee" to include a person elected to an office in the county that normally requires service for not less than 900 hours a year and for which the person is compensated by the county. V.T.C.S. Title 110B, § 51.001(6); see V.T.C.S. Title 110B, § 51.001(14). A justice of the peace in Webb County would therefore be a member of the Texas County and District Retirement System. See Attorney General Opinion H-202 (1974). Justices of the peace are not among the officers eligible for membership in the Judicial Retirement System of Texas. V.T.C.S. Title 110B, § 42.001. See also Attorney General Opinion H-927 (1977).

Section 54.102 of Title 110B, V.T.C.S., states eligibility requirements for retiring and receiving a service retirement annuity from the Texas County and District Retirement System. "Retirement" is defined as the withdrawal from service with a retirement benefit granted under the Texas County and District Retirement System. V.T.C.S. Title 110B, § 51.001(10). The fact that the justice of the peace lost an election does not prevent him from retiring. Cf. Attorney General Opinion H-1230 (1978) (eligibility for assignment as special judge of retired district judge who was defeated for reelection).

Article XVI, section 17, of the Texas Constitution will, however, cause the justice of the peace to remain in office until his successor qualifies. This provision states as follows:

Sec. 17. All officers within this State shall continue to perform the duties of their offices until their successors shall be duly qualified.

Tex. Const. art. XVI, § 17. Even though an officer resigns, this constitutional provision operates to continue him in office until his successor qualifies. Plains Common Consolidated School District No. 1 of Yoakum County v. Hayhurst, 122 S.W.2d 322 (Tex. Civ. App. - Amarillo 1938, no writ); Keen v. Featherston, 69 S.W. 983 (Tex. Civ. App. 1902, writ ref'd). See also Attorney General Opinion M-742 (1970). An officer who retires from office will continue to hold his office until his successor qualifies. Attorney General Opinion H-1224 (1978). Thus, the present justice of the peace will continue to serve in office until a successor qualifies.

When the incumbent resigns, there will be a legal vacancy in his office that the commissioners court may fill, even though article XVI, section 17, of the Texas Constitution prevents a physical vacancy in the office. The commissioners court has authority under article V, section 28, of the Texas Constitution and article 2355, V.T.C.S., to appoint someone to fill the office of justice of the peace until the next general election. See also Elec. Code § 202.002 (defining the "next general election" at which a vacancy may be filled).

In the present case, the incumbent's term ends on December 31, 1986. V.T.C.S. art. 17. If the commissioners court appoints someone to the vacancy created in the office of justice of the peace by the incumbent's resignation, the appointee is entitled to serve out the remainder of the term, and to continue in office pursuant to article XVI, section 17, of the Texas Constitution until his successor qualifies. Attorney General Opinion M-742 (1970). The individual elected to the office of justice of the peace in the November 1986 general election is not entitled to qualify and enter into his office prior to January 1, 1987. Id.

You indicate that the individual who defeated the incumbent in the primary is not qualified to serve as justice of the peace because he has not attended the forty-hour course required by section 27.005 of the Government Code. For that reason, you apparently do not believe he may be appointed to fill the incumbent's unexpired term should the incumbent resign. Section 27.005 of the Government Code provides as follows:

(a) For purposes of removal under Title 100, Revised Statutes, 'incompetency' in the case of a justice of the peace who is not a licensed attorney includes failure to successfully complete:

(1) within one year after the date he is first elected, a 40-hour course in the performance of his duties; and

(2) each following year, a 20-hour course.

(b) The courses must be completed in an accredited state-supported school of higher education. (Emphasis added).

A justice of the peace who is not a licensed attorney may be removed if he fails to successfully complete the course within a year after the date he is first elected. The statute does not require him to fulfill the educational requirement before he begins service as justice of the peace.

You also inquire about section 1.83 of the Family Code which provides in part:

(a) The following persons are authorized to conduct marriage ceremonies:

. . . .

(4) justices of the supreme court, judges of the court of criminal appeals, justices of the courts of appeals, judges of the district, county, and probate courts, judges of the county courts at law, courts of domestic relations and juvenile courts, retired justices and judges of such courts, justices of the peace, retired justices of the peace, and judges and magistrates of the federal courts of this state.

(b) For the purposes of this section, a retired judge of a county court, probate court, county court at law, court of domestic relations, 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 service. (Emphasis added).

Under this provision, a former justice of the peace who served at least 15 years in that capacity is authorized to conduct marriage ceremonies. You state that the incumbent justice of the peace meets the 15 year qualification. Section 1.83 of the Family Code will therefore authorize him to perform marriages as a retired justice of the peace after he leaves his office.

You wish to know who appoints him and authorizes him to perform marriage ceremonies. No appointment is necessary. The Family Code provision itself grants the power to conduct marriage ceremonies to a retired justice of the peace as that term is therein defined.

SUMMARY

A justice of the peace in Webb County is a member of the Texas County and District Retirement System and may retire under that system when he meets the eligibility requirements. Article XVI, section 17, of the Texas Constitution will cause him to continue in office despite retirement until his successor qualifies.

Section 1.83 of the Family Code authorizes a retired justice of the peace with 15 years of service as a justice of the peace to conduct marriage ceremonies.

Very truly yours,

Jim Mattox
Attorney General of Texas

JACK HIGHTOWER
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Susan L. Garrison
Assistant Attorney General