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Local Government Assistance
Justice of the Peace Manual
February 2002
CHAPTER 1
The Office of Justice of the Peace
Justices of the peace are elected county officials. The Texas
Constitution provides that each county shall have one to eight justice
precincts depending on its population. [1] The major responsibility of
this office is to preside over the justice court, which also may function
as a small claims court.
A justice of the peace is elected from each justice precinct in the county
to serve a four-year term, and until a qualified successor is elected.
The number of justice precincts in a county is determined by the
population of the county, population of cities within a precinct and/or
the county commissioners court. [2]
If the most recent federal census shows the county population to
be at least 50,000, then the county is divided into at least four, but
not more than eight justice precincts.
Counties with a population of 18,000 to 50,000 are divided into at
least two, but not more than eight precincts. [3]
For those counties with a population of less than 18,000, only one
precinct will be designated, unless the commissioners court
determines more are needed, in which case the court can
designate up to four additional precincts.
In counties with a population of less than 150,000, in any
precinct in which there is a city with a population of 18,000 or
more, two justices of the peace shall be elected.
In counties with a population of 150,000 or more, each precinct
can contain more than one justice of the peace court.
Any county that was divided into four or more precincts on
November 2, 1999, shall continue to be divided into not less than
four precincts.
Commissioners courts are responsible for dividing and designating
justice precincts within a county.
Election and Term of Office
Justices of the peace are elected to four-year terms. If there is not more
than one justice per precinct, the elections of all precincts will coincide
with the election of the governor.
When there is more than one justice per precinct, place two justices will
run for election at the same time as the governor. Place one justices will
run for election the two years after place two justices run. Such
staggered terms provide for smoother post-election transition periods.
[4]
When justice of the peace boundaries are changed, justices in office or
those who have already been elected to serve beginning on or after the
effective date of the change, shall still serve for the term elected, even
if the boundary change results in:
placing their residence outside the new boundaries;
abolishing the precinct; or
having excess justices within a precinct temporarily. [5]
If a boundary change creates a vacancy in the office, the commissioners
court is responsible for appointing a justice of the peace until the next
general election. [6]
Qualifications
To be eligible to hold the office of justice of the peace, a person must:
be a citizen of the United States;
be at least 18 years of age on the day the term starts or on the
date of appointment;
not have been determined mentally incompetent by a final
judgment of a court;
not have been finally convicted of a felony from which the
person has not been pardoned or otherwise released from the
resulting disabilities;
as a general rule, have resided continually in Texas for one year
and in the precinct for the preceding six months; and
must not have been declared ineligible for the office. [7]
An individual is also disqualified from holding the office of justice of
the peace if convicted of having given or offered a bribe to procure
election or appointment. [8]
The office of justice of the peace is specifically exempt from the
constitutional mandate against one person holding more than one civil
office. [9] The separation of powers doctrine, however, prohibits a
member of the judicial branch, such as a justice of the peace, from
serving concurrently as a member of another branch of government. [10]
The determining factor is whether the second position is in the nature of
an officer or employee. In Ruiz v. State (Civ. App. 1976) 540 S.W. 2d
809, the court decided that a teacher was an employee and not an
office, and thus an individual could serve as justice of the peace and
teach at the same time.
After taking office, instances arise when individual justices of the peace
must disqualify themselves from acting in a particular case. Such an
instance occurs if either of the parties are related to the justice by
affinity (by marriage) or consanguinity (by blood) within the third
degree, as determined by Chapter 573 of the Government Code. [11]
However, a justice, when disqualified because of relationship to one of
the parties, cannot dismiss the suit. [12] Instead, the justice must transfer
the cause. [13]
Certification
Justices are required to complete an 80-hour course in the performance
of their duties within one year of being elected and a 20-hour course
each succeeding year. The courses may be completed in an accredited
state-supported school of higher education. [14]
Failure to complete the required courses could result in removal of the
justice from office. Justices receive certification through the Texas
Justice Court Training Center at Southwest Texas State University in
San Marcos.
Bonding
Each justice of the peace is required to give bond, payable to the county
judge, in an amount not to exceed $5,000. [15]The bond is for:
faithfully and impartially discharging the duties required by law;
and
promptly paying money received to the appropriate party.
The bond must be executed with at least two good and sufficient
sureties or with a solvent surety company authorized to do business in
Texas.
The bond is recorded and kept by the county clerk. [16] In addition, the
bond can be paid out of the county's General Fund. [17]
Any individual or company that has provided a surety for a justice of
the peace can ask the commissioners court to be relieved from the bond.
If the commissioners court agrees to relieve the surety from the bond
(which is issued by the county clerk and served by the sheriff or a
constable), the justice of the peace ceases all functions except
preserving the records and property of the office. The office becomes
vacant if the justice fails to provide commissioners court with a new
bond within 20 days of receiving notice that his or her original bond has
been forfeited. [18]
A commissioners court that finds that a bond approved by the court is
insufficient for any reason shall:
1. require the justice of the peace to give a new bond or additional
security; and
2. have the justice of the peace cited to appear at a term of the court
not earlier than the sixth day after the date of service and take
any action the court considers best for the public interest.
Action taken by the commissioners court under this section is final and
may not be appealed. [19]
Insurance
The statutes neither authorize or require errors and omissions insurance
for justices of the peace. This type of insurance policy insures an
official against claims made by third parties, alleging negligence in the
performance of, or the failure to perform professional services. Suits
against justices are brought against their bond and against the sureties
on the bond; therefore, professional liability insurance is not necessary.
The district or the county attorney is required to represent justices in
suits brought by entities other than the county the justice serves,
involving acts committed in the performance of their duties. In such
instances, commissioners courts are authorized to employ and pay
private counsel if commissioners consider such counsel necessary and
proper. [20]
Complaints
A citizen of the state who has lived in the county for six months and
who is not under indictment in the county, may institute proceedings to
remove a justice from office by filing a petition in the district court
where the justice resides.
The petition must:
be addressed to the district judge;
set forth the alleged grounds for removal;
cite the time and place of the occurrence of each act alleged as a
grounds for removal; and
be sworn to at or prior to the time filed, by at least one of the
parties filing it. [21]
Any individual can make a complaint to the State Commission on
Judicial Conduct concerning a justice of the peace. The commission
then determines if the complaint has merit and what action, if any,
should be taken. [22]
Removal from Office
Justices of the peace may be removed from office by the judge of the
district court for:
incompetence;
official misconduct;
habitual drunkenness; or
failure to adequately give bond. [23]
Incompetence
Incompetence means:
gross ignorance of official duties;
gross carelessness in discharging duties;
having a mental or physical defect, not existing when elected,
resulting in the justice's being unfit or unable to promptly and
properly discharge his or her duties; or
failing to complete an 80-hour course on job duties within one
year of being elected and a 20-hour course each succeeding year.
[24]
Official Misconduct
Official misconduct means intentional, unlawful behavior in relation to
job duties. The term includes an intentional or corrupt failure, refusal or
neglect in performing required job duties. [25]
The charge of misconduct could include:
violating the nepotism provision, which basically prevents
justices from benefiting anyone related to them within the second
degree by marriage (affinity) or within the third degree by blood
(consanguinity); or
trying to benefit themselves or harm someone else by
intentionally or knowingly violating a law relating to their office
or by misusing government property, services, personnel or other
things of value. [26]
Justices of the peace are required to give payers in criminal cases a
receipt. [27] The receipt must show:
the amount paid;
the date paid;
the style and number of the case;
an itemization of costs;
the payer's name; and
the official signature of the officer receiving the money.
Receipt books are provided by the county and must contain duplicate
official receipts. The receipts also must bear a distinct number and
facsimile of the county seal.
Receipt books must be delivered to the county auditor at the end of
each month. The auditor is required to check the books to make sure the
justice of the peace properly disposes of fines and fees. [28]
A justice of the peace who violates the provisions cited above can be
removed from office on the petition of the county or district attorney.
[29]
Habitual Drunkenness
Becoming intoxicated means drinking enough alcoholic beverages to
result in drunkenness, even if not on duty. However, intoxication is not
a ground for removal if it appears at the justice's trial that drinking an
alcoholic beverage at the direction and prescription of a licensed
physician caused his or her intoxication. [30]
Failing to Give Bond
Failing to give adequate bond can also be cause for removal. Failure to
give adequate bond means:
failing to execute a bond timely; or
failing to give a new bond or an additional bond or security when
required by law. [31]
The district judge has the power to remove a justice from office only
after a jury finds the justice guilty of misconduct or incompetence. [32]
A county commissioners court has no authority to remove a justice. [33]
The district judge can temporarily suspend a justice and appoint
someone else to perform the justice's duties. A suspended justice who
eventually wins the case is entitled to receive back pay and other
benefits missed unless the court can show cause for not restoring the
benefits. [34]
Vacancy in Office
A justice of the peace office can become vacant because of:
of an existing justice from office;
creation of a new justice precinct;
a change in precinct boundaries; or
a justice's announcement or candidacy for another office of profit
or trust while having an unexpired term in excess of one year. [35]
Justices, however, are not prevented from completing a term due to a
precinct boundary change. [36]
Vacancies are filled by a majority vote of the commissioners court
members who are present and vote. The person appointed by the
commissioners court to fill the vacancy shall hold office until the next
general election. [37]
If the justice of the peace office is vacant in a precinct or if the justice
is unable or unwilling to perform the duties of the office, the nearest
justice in the county may temporarily perform those duties. [38]
If a justice is temporarily unable to perform official duties because of
absence, recusal, illness, injury or other disability, the county judge may
appoint a qualified person to serve as temporary justice for the duration
of the disability. [39]
The temporary justice receives the same amount of compensation as the
regular justice.
The county judge must try to appoint someone who has served as a
justice of the peace for at least four and one-half years and who has not
been convicted of an offense involving moral turpitude. If the county
judge cannot find someone who meets those qualifications and agrees to
the appointment, the judge may appoint any voter qualified under the
Election Code.
Excluding personnel decisions and significant changes in the office, a
temporary justice has all the rights and powers of the justice of the
peace.
If a justice is disqualified from a civil case, is sick or is absent from the
precinct, the parties may agree on a person to try the case. If agreement
is not reached, the county judge may appoint someone to try the case.
[40]
Justices of the peace within the same county can hold court for each
other and exchange benches when they deem it is expedient. [41]
Location, Furnishings and Supplies
The commissioners court sets the amount of compensation, office and
travel expenses and all other allowances for justices of the peace. [42]
Upon the request of a justice handling an average of more than 50 cases
per month (during the 12 months immediately preceding the request),
the commissioners court, at the beginning of the next fiscal year, shall
furnish suitable office space and the necessary telephones, equipment
and supplies. [43]
A justice of the peace of a precinct in a county with a population of less
than 30,000 may hold court in the county courthouse or another facility
provided by the commissioners court for that purpose. If requested by
the justice, the commissioners court may provide and furnish a suitable
place in the courthouse or another facility for the justice to hold court.
[44]
Generally, a justice of the peace court may not be housed or conducted
in a building located outside the court's precinct. There are two
exceptions to this provision in the law. First, a justice of the peace in a
county with a population of less than 30,000 may hold court in the
county courthouse or another facility provided by the commissioners
court. [45] The second exception applies to a justice of the peace court
situated in the county courthouse in a county with a population of at
least 220,000 persons but no more than 230,000 persons. [46] A
commissioners court also can provide auxiliary courtrooms or offices to
justices. [47]
Various statutes provide for facilities and locations that are dependent
upon a county's population. These statutes are enacted with specific
counties in mind and are often referred to as bracket laws. For example,
Local Government Code, Section 305.001, allows a county and city to
jointly provide a building to house certain offices, including a justice of
the peace office, if:
there is an incorporated city within the county with a population
of 2,000 or more; and
the city is located more than 10 miles from the county seat.
Assistants and Other Office Help
When justices of the peace need assistants or office help, they must
apply to the commissioners court for the authority to appoint them. [48]
The application to the court must be sworn to and specify:
the number of employees needed;
the position(s) to be filled;
the amount to be paid; and
if the county population is more than 190,000, the officer shall
apply for the authority to appoint any other kinds of employees.
The commissioners court evaluates the request. [49] If the
commissioners court believes the request is warranted, it may order and
authorize the number of people to be hired.
After the commissioners court order is entered in the minutes, a justice
may legally fill the position(s). [50]
If the commissioners court determines the need for and approves the
position(s), it cannot attempt to influence a justice concerning who is
appointed. [51]
After a commissioners court authorizes a justice to appoint employees,
a justice is not required to submit the names for prior commissioners
court approval. [52]
Moreover, the court cannot refuse to authorize or confirm an
appointment for personal reasons. The court's responsibility is to
evaluate the necessity of the appointment. Likewise, if the necessity for
an employee exists, the commissioners court cannot arbitrarily refuse to
authorize the appointment. [53]
A justice also can be provided secretarial help if the commissioners
court believes the county's financial condition is adequate and
determines help is necessary. [54]
Allowance and Expenses
The commissioners court sets the amount of compensation, office and
travel expenses and all other allowances for justices of the peace. The
court does so each year during the regular budget hearing and adoption
process. [55]
The commissioners court also can set the amount justices receive for
travel. If duties require individual justices to travel from their offices or
court on a continuing basis, the commissioners court can set a monthly
allowance. However, the allowance must be reasonably related to the
expenses incurred. It is the responsibility of the commissioners court to
make that determination. [56]
Endnotes
[1] Vernon's Ann. Tex. Const. Art. 5, §18.
[2] Vernon's Ann. Tex. Const. Art. 5, §18.
[3] Chambers and Randall Counties have to be divided, from time to time for the
convenience of the people, into at least two but not more than six precincts.
[4] Vernon's Ann. Tex. Const. Art. 16, §65.
[5] Vernon's Ann. Tex. Const. Art. 5, §18.
[6] Vernon's Ann. Tex. Const. Art. 5, §18.
[7] V.T.C.A., Election Code, § 141.001; V.T.C.A., Election Code, §145.003.
[8] Vernon's Ann. Tex. Const. Art. 16, §5.
[9] Vernon's Ann. Tex. Const. Art. 16, §40.
[10] Vernon's Ann. Tex. Const. Art. 2, §1.
[11] V.T.C.A. Government Code, §21.005.
[12] Gains v. Barr (1984) 60 T. 676.
[13] Morris v. Foreaker (1891), 4 App. C.C. Sec. 37, 15 S.W. 37.
[14] V.T.C.A., Government Code, §27.005.
[15] V.T.C.A., Government Code, §27.001.
[16] V.T.C.A., Local Government Code, §88.001.
[17] V.T.C.A., Local Government Code, §152.001.
[18] V.T.C.A., Local Government Code, §§88.002, 88.003, 88.004, 88.005.
[19] V.T.C.A., Local Government Code, §88.007.
[20] V.T.C.A., Local Government Code, §157.901.
[21] V.T.C.A., Local Government Code, §87.015.
[22] Vernon's Ann. Const. Art. 5, §1-a.
[23] Vernon's Ann. Const. Art. 5, §24. V.T.C.A., Local Government Code, §§87.012,
87.013, 87.014.
[24] V.T.C.A., Local Government Code, §87.011; 1 Texas S. B. 495, 77th Leg., Reg.
Sess. (2001); V.T.C.A., Government Code, §27.005.
[25] V.T.C.A., Local Government Code, §87.011.
[26] V.T.C.A., Government Code §§573.002, 573.041, 573.044, 573.081, 573.084.;
V.T.C.A., Penal Code, §39.02.
[27] Vernon's Ann. C.C.P. art. 103.010.
[28] Vernon's Ann. C.C.P. art. 103.011.
[29] Vernon's Ann. C.C.P. art. 103.012.
[30] V.T.C.A., Local Government Code, §87.013.
[31] V.T.C.A., Local Government Code, §87.014.
[32] Vernon's Ann. Texas Const. Art. 5, §24. State ex rel. Hale v. O'Meara (Civ. App.
1934) 745 S.W. 2d 146.
[33] Childress County v. Sachse (Civ. App. 1958) 310 S.W. 2d 414, ref. n.r.e. 158 Tex.
371, 312 S.W. 2d 380.
[34] V.T.C.A., Local Government Code, §87.017. AG Opinion H-227, 1974.
[35] Vernon's Ann. Texas Const. Art. 5, §18. Vernon's Ann. Texas Const. Art. 16, § 65.
[36] Vernon's Ann. Texas Const. Art. 5, §18. V.T.C.A., Local Government Code §
81.021. AG Opinion H-564, 1975.
[37] Vernon's Ann. Texas Const. Art. 5, Sec. 28. V.T.C.A., Local Government Code,
87.041.
[38] V.T.C.A., Government Code, §27.052.
[39] V.T.C.A., Government Code, §27.055(b).
[40] V.T.C.A., Government Code, §27.055(a).
[41] V.T.C.A., Government Code, § 27.054.
[42] V.T.C.A., Local Government Code, §152.011.
[43] V.T.C.A., Local Government Code, Sec. 291.004.
[44] V.T.C.A., Government Code, §27.051(f).
[45] V.T.C.A., Government Code, §27.051(f).
[46] V.T.C.A., Local Government Code, §292.001(d).
[47] V.T.C.A., Local Government Code, §292.004.
[48] V.T.C.A., Local Government Code, §151.001.
[49] V.T.C.A., Local Government Code, §151.002.
[50] V.T.C.A., Local Government Code, §151.003.
[51] V.T.C.A., Local Government Code, §151.004.
[52] AG Opinion S-12, 1953.
[53] AG Opinion O-305, 1939.
[54] V.T.C.A., Local Government Code, §151.901.
[55] V.T.C.A., Local Government Code, §§152.011, 152.013.
[56] AG Opinion H-992, 1977.
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