Your request for an opinion on the above stated question has been received by this office.

Article 16. Section 40 of the Texas Constitution, reads, in part, as follows:

"No person shall hold or exercise, at the same time, more than one civil office of employment, except that of Justice of Peace, County Commissioner, Rotary Public and..."

In the case, casl vs. Toward an 365. Judge Geines in this opinion seems to be down the original interpretation of Article 16, Section 40 of the Constitution, and used the following language:

"Any of the offices named in the exeeption may be held with any other office, whether named in the exception or not."

By the laws of the State of Texas, constitutional and statutory, a person is prohibited from holding more than one civil office of employment, (Art. 16, Sec. 40 of the State Constitution) excepting certain offices of which that of the Justice of the people is one. However, our courts have gone further and have

*2 Kr. Gilbert Smith, April 6, 1939, Faje &;

extended the rule that even where there is a specific exception to the rule of more than one office of emolument as in this case, or where an office does not pay for its services to the holder thereof, that where a person seeks to hold more than one civil office and the duties of the two offices are incompatible, that such a person cannot hold both offices, and the acceptance of the latter, or later in point of time, is considered a vacancy or resignation of the office formerly held.

Applying these rules, the courts have held in case of Luera vs. State, 63 SW and 699 that the justice of the peace can also be a recorfer in the Corporation Court of the city as Article 16, Section 40 of the State Constitution does not apply to justices of the peace and the duties of the two offices are not incompatible one to the other. Even though the two offices in the inquiry at hand, mayor of the city of Anson and justice of the peace of preclnet No. One of Jones County, Texas, may be both civil offices of emolument yet this provision of the Constitution does not apply to justices of the peace, where one person could hold both offices unless the duties of the same were incompatible one to the other.

Though the line which distinguishes compatible and incompatible duties of separate offices is sometimes dim and difficult to distinguish yet we are of the opinion that the two offices of mayor and justice of the peace are not incompatible one to the other and that the same person can hold both offices at the same time.

Offices are incompatible where these duties are or may be inconsistent or conflicting, but not where their duties are wholly unrelated, or in no manner inconsistent and are never in conflict, and where neither officer is accountable or under the dominion of, or subordinate to, the other, or has any right or power to interfere with the other in the performance of any duty. State vs. Martin, 51 SW and 815, Kugle vs. Glenrose Independent School District, 50 SW and 375, Thomas vs. Abernathy County Line Independent School District, 290 SW 152, Tex. Jur.

*3 Ir. Gilbert inith, April 6, 1939, Page 3

Vol. 34, page 351. In view of the foregoing authorities, you are respectfully advised that it is the opinion of this Department that a citizen of Anson can hold both the offices of mayor and justice of the peace of precinet one of Jones County at the same time.

Trusting that the foregoing answers your inquiry, we remain

Very truly yours ATTORNEY GENERAL OF TEXAS By Cholell Wiltion Ardell Williams Assistnat

AK:AM APPROVED: Served. Maman ATTORNEY GENERAL OF TEXAS