Untitled Texas Attorney General Opinion ( 2005 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
August l&2005
The Honorable Richard J. Miller Opinion No. GA-0348
Bell County Attorney
Post Office Box 1127 Re: Whether a county commissioner may
Belton, Texas 765 13 simultaneously hold the position of municipal
judge of a city located within his county
(RQ-03 17-GA)
Dear Mr. Miller:
You seek an opinion on “whether a county commissioner may be appointed as a municipal
judge for compensation and serve in both offices simultaneously.“’ In your request, you point out
three primary grounds that potentially prohibit a county commissioner from serving as a
compensated municipal judge: (1) the constitutional prohibition against dual office holding; (2)
the constitutional separation of powers requirement; and (3) the common-law doctrine of
incompatibility. See Request Letter, supra note 1, at l-2. You also inquire about the Texas Code
of Judicial Conduct. See id. at 3. We address each ground in turn.
I. Constitutional Prohibition Against Dual Office Holding
With certain exceptions, the Texas Constitution prohibits an individual from holding at the
same time more than one “civil office of emolument.“2 TEX. CONST. art. XVI, 5 40(a). One office
expressly excepted from this provision is that of county commissioner.3 See id. In an early case
construing article XVI, section 40, the Texas Supreme Court held that a county commissioner could
‘Letter from Honorable Richard J. Miller, Bell County Attorney, to Honorable Greg Abbott, Texas Attorney
General (Feb. 10, 2005) (on tile with Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter
Request Letter].
“‘A ‘civil office’ is an office that pertains to the exercise of the powers or authority of civil government.” State
ex rel. HilZ v. Pirtle, 887 S.W.2d 921, 931 (Tex. Crim. App. 1994). An emolument is a “pecuniary profit, gain or
advantage.” Irwin v. State, 177 S.W.2d 970,973 (Tex. Crim. App. 1944). The office of county commissioner is a civil
office of emolument. See Tex. Att’y Gen. LO-98-035, at 1. Similarly, the office of municipal judge is a civil office of
emolument. See Tex. Att’y Gen. Op. No. JM-333 (1985) 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, County Commissioner, Notary Public and Postmaster,” certain
military offices, and officers and directors of soil and water conservation districts. TEX. CONST. art. XVI, $ 40(a).
The Honorable Richard J. Miller - Page 2 (GA-0348)
simultaneously hold the office of city mayor.4 See Gaul v. Townsend, 14 S.W. 365,366-67 (Tex.
1890) (“[Wle are clearly of the opinion that the appellant did not vacate his office of county
commissioner by accepting that of mayor”). In Gaul, the court was presented with two possible
constructions of section 40: In one construction, a person holding one of the enumerated offices
could hold another civil office of emolument when the other office was one ofthe other offices listed
in section 40; in the other construction, a person holding one of the excepted offices could hold any
other civil office of emolument. See Gaul, 14 S.W. at 366. Ultimately, the court decided the latter
construction prevailed such that any one of the excepted offices could hold any other civil office of
emolument. See id. Because the office is expressly excepted from article XVI, section 40, we
conclude that a county commissioner is not prohibited by that constitutional provision from
simultaneously serving as a compensated municipal judge.
II. SeDaration of Powers
You also inquire whether the separation of powers doctrine precludes the county
commissioner from being appointed municipal judge. See Request Letter, supra note 1, at 1; see
also TEX. CONST. art. II, 5 1. The policy behind the separation of powers doctrine is to “prohibit
one branch of government from interfering with functions constitutionally committed to other
branches of government.” Turner v. Trinity Indep. Sch. Dist. Bd. of Trs., 700 S.W.2d 1, 2 (Tex.
App.-Houston [ 14th Dist.] 1983, no writ). The separation ofpowers doctrine was treated for several
“years in the mid- 1970s as a dual office holding provision.” Tex. Att’y Gen. LO-92-004, at 1.
However, this office has long since abandoned the use of the doctrine as a bar to dual office holding.
See Tex. Att’y Gen. Op. No. JM-5 19 (1986) at 4; see also Tex. Att’y Gen. Op. No. JC-0216 (2000)
at I (citing Tex. Att’y Gen. Op. No. JM-5 19 (1986)) (“It is now clear that, in the usual circumstance,
the separation of powers doctrine does not constitute an impediment to dual office holding.“); Tex.
Att’y Gen. LO-92-004, at 1 (citing Tex. Att’y Gen. Op. No. JM-519 (1986)). Accordingly, we
conclude that article II, section 1 does not preclude a county commissioner from also serving as a
municipal court judge.
III. Doctrine of Incompatibilitv
You ask whether the doctrine of incompatibility prohibits the commissioner from being
appointed a municipal judge of a city located within his county. See Request Letter, supra note 1,
at 2. This office has consistently opined that though the office of county commissioner is excepted
from article XVI, section 40, the office is not thereby protected from the operation of the common-
law doctrine of incompatibility. See Tex. Att’y Gen. Op. No. GA-001 5 (2003) at 3 (stating case law
holding office of commissioners exempt from article XVI, section 40 “does not address whether the
doctrine of incompatibility prohibits such dual service”); see also Tex Att’y Gen. LO-96-004, at 2.
4See also Ramirez v. State, 505 S.W.2d 406, 410 (Tex. Civ. App.-San Antonio 1974, writ refd n.r.e.) (“a
county commissioner may hold or exercise at one time one or more civil offices of emolument”); Tex. Att’y Gen. Op.
Nos. C-43 (1963) at 2 (“the office of county commissioner is expressly excepted”), V-63 (1947) at l-2 (stating section
40 is inapplicable to the office of county commissioner), O-3576 (1941) at 2 (“The office of county commissioner being
specifically excepted , . does not come within the prohibition thereof.“).
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Therefore, to answer your question we must examine whether the offices of county commissioner
and municipal judge are incompatible.
There are three aspects to the doctrine of incompatibility: self-appointment, self-
employment, and conflicting loyalties. See Tex. Att’y Gen. Op. No. GA-0273 (2004) at 2. Self-
appointment involves the incompatibility of being both a member of a body making the appointment
and an appointee of that body. See Ehlinger v. Clark, 8 S.W.2d 666,674 (Tex. 1928); see also Tex.
Att’y Gen. LO-95-029, at 2. Self-employment involves an officer and an employee and prohibits
one person from holding an office that directly appoints or supervises the employee, or “where the
particular duties of the two positions and the relationship between them [give] rise to a great risk that
one would impose its policies on the other.” Tex. Att’y Gen. LO-95-029, at 2-3. Neither aspect is
applicable here because the municipality, not the commissioners court, is responsible for the
selection of municipal judges, see TEX. GOV’T CODE ANN. 04 30.00006(b) (Vernon 2004)
(municipal courts of record), 29.004(a)-(b) (municipal courts), and county commissioners are not
appointed by municipal judges but elected by the qualified voters of the county. See TEX. CONST.
art. V, 9 18. Similarly, the city council, not the commissioners court, supervises the operations
of a municipal court and provides facilities for the municipal court, see TEX. GOV’T CODE ANN.
$6 30.00006(h) (salary), .00009 (clerk, other personnel), .OOOlO (court reporter), .00012 (court
facilities), .000125 (seal) (Vernon 2004); see generally id. ch. 29, while a county commissioner
answers to the qualified voters of the county. See TEX. CONST.art. V, 5 18.
Because the first two aspects of incompatibility are inapplicable, we look to the conflicting
loyalties aspect. Conflicting loyalties incompatibility was first addressed in Thomas v. Abernathy
County Line Independent School District, where the Texas Commission of Appeals held the offices
of school trustee and city alderman incompatible because the relationship between the two offices
created the potential for conflict. See Thomas v. Abernathy Coutity Line Indep. Sch. Dist., 290 S. W.
152,153 (Tex. Comm’n App. 1927, judgm’t adopted). The court in Thomas was concerned that by
virtue of holding one office a person could “thereby impose its policies on the other or subject it to
control in some other way.” Tex. Att’y Gen. Op. No. JM-862 (1988) at 4. This office has had many
occasions to examine whether two offices were incompatible because of conflicting loyalties. See
Tex. Att’y Gen. Op. Nos. GA-0307 (2005) at 4 (considering conflicting loyalties), GA-0032 (2003)
at 4-5 (same), JC-0339 (2001) at 3 (same), JM-1266 (1990) at 4 (same). The potential for conflict
is more likely where geographic boundaries of the two governmental entities overlap because the
duties of the two offices are more likely to conflict. See Tex. Att’y Gen. Op. Nos. JC-0339 (2001)
at 3 (zoning authority of city Planning and Zoning Commission would include jurisdiction over
development of Municipal Utility District within city’s geographic territory, and officer of both
entities would have conflicting loyalties), JM-203 (1984) at 10 (“if two offices serve jurisdictions
which overlap geographically, their duties are much more likely to conflict”). We have said where
two governmental bodies are authorized to contract with each other, one person may not serve as a
member of both. See Tex. Att’y Gen. Op. No. JM-1266 (1990) at 4 (“If, for example, the two
political subdivisions contract with each other, there probably exists sufficient potential for
conflicting loyalties as to render the two positions incompatible.“). Similarly, we have determined
where two governmental entities have overlapping powers of taxation, the potential for conflict
absolutely prohibits one person serving as an officer of both entities. See Tex. Att’y Gen. Op. Nos.
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GA-0032 (2003) at 5 (“[i]f two districts with overlapping geographical jurisdictions each have the
power of taxation, . . . the potential for conflict is insurmountable”); JC-0557 (2002) at 5 (same).
Where no potential for conflict exists, however, this office has determined that incompatibility does
not preclude one person from holding two offices. See Tex. Att’y Gen. Op. Nos. JC-0490 (2002)
(considering offices of school district trustee and county treasurer), JC-0216 (2000) (considering
offices of municipal judge and junior college trustee), DM-47 (199 1) (considering offices of director
of non-taxing river authority and appraisal district board member), JM-819 (1987) (considering
offices of justice of the peace and municipal judge).
Despite the geographic overlap between the municipality and the county, there is practically
no relationship between the offices of county commissioner and municipal judge, much less one that
would result in conflicting loyalties. County commissioners courts have taxing authority, see TEX.
Lot. GOV’T CODEANN. 9 8 1.006 (Vernon 1999), but municipal courts do not. See generally TEX.
GOV’T CODE ANN. chs. 29-30 (Vernon 2004). One person holding both positions would not have
overlapping taxation authority. While a municipality and a county may contract with each other for
the performance of governmental functions and services, a municipal court does not perform
governmental functions and services, see id. $79 1.Ol l(a)-(d) (defining governmental functions and
services), and could neither be a party to a contract with the county nor have any authority over such
a contract. A commissioners court can sue and be sued, but cases involving the commissioners court
are civil while the jurisdiction of a municipal court is limited5 to primarily criminal jurisdiction over
violations of city ordinances. See id. $5 30.00005 (municipal court of record), 29.003 (municipal
court) (Vernon 2004). Such limited jurisdiction would preclude civil cases involving a county
commissioners court from being brought before the municipal court. Other legislative powers6 of
a county commissioners court include: the authority to change commissioner and justice precinct
boundaries;7 the authority to support paupers;8 the power of appointment over vacant county offices;’
and authority over the county budget.” A municipal court shares none of these powers. See
generally id. chs. 29-30.
‘The jurisdiction of a municipal court is even more limited than the jurisdiction of a justice court. See Tex. Att’y
Gen. Op. No. JC-0216 (2000) at 2.
6A county commissioners court is authorized to issue notices, citations, writs and process. See TEX. LOC. GOV’T
CODE ANN. 4 81.022(a) (Vernon 1999). However, this authority is that which is “necessary for the proper execution of
its powers and duties and the enforcement of its jurisdiction.” Id. The jurisdiction of the commissioners court is mostly
legislative, see Tex. Att’y Gen. Op. No. JC-02 14 (2000) at 2 (stating “the general legislative authority of the county is
in the commissioners court”), and any judicial jurisdiction a commissioners court may have is not criminal. Therefore,
we see no potential conflict between this power of the commissioners court and the writ power of a municipal court.
‘See TEX. Lot. GOV’T CODE ANN. 5 8 1.02 l(a) (Vernon 1999).
‘See id. 0 81.027 (Vernon Supp. 2004-05).
‘See id. 5 87.041(a) (Vernon 1999).
“See id. $9 111.008(a), ,039 (Vernon 1999).
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We recognize a county commissioners court can create certain criminal offenses that are
deemed by statute to be Class C misdemeanors. See TEX. Lot. GOV’T CODE ANN. 58 235.025
(Vernon Supp. 2004-05) (county regulation ofmatters relating to explosives and weapons), 35 1.903
(county juvenile curfew); TEX. TRANSP.CODEANN. 4 394.084 (Vernon 1999) (county regulation of
outdoor signs on rural roads); TEX. HEALTH&SAFETYCODEANN. 6 365.034 (Vernon 2001) (county
regulation of litter near public highway). Justice courts would have jurisdiction over such offenses
because they are punishable only by tine. See TEX. CODEGRIM. PROC. ANN. 5 4.11 (Vernon 2005)
(justice courts have criminal jurisdiction in criminal cases punishable by fine only); TEX. PEN.CODE
ANN. 3 12.23 (Vernon 2005) (Class C misdemeanors involve a “fine not to exceed $500,“).
Municipal courts have specified concurrent jurisdiction with justice courts when the offense arises
in the municipality. See TEX. GOV’T CODEANN. $0 29.003(b) (Vernon 2004) (municipal courts),
30.00005(d) (V ernon 2004) (municipal courts of record). Thus, there may be occasions where a
person charged with a criminal offense created by the commissioners court is before the municipal
judge. We point out, however, that municipal court jurisdiction concurrent with that of a justice
court does not preclude a matter from being heard in the justice court. Because most of the offenses
listed above concern county matters and because we believe most county prosecutors would file the
case in the justice court, the likelihood of cases involving these offenses being prosecuted in
municipal court is remote. We do not believe that the remote possibility of such a case coming
before a person in his or her role as municipal judge would induce or otherwise motivate a person
in his role as county commissioner to legislatively act regarding the offense. Moreover, we believe
it only a remote possibility that his service as a municipal judge would impact or conflict with his
role over the county’s justice court system as county commissioner.
We believe the offices of county commissioner and municipal judge are not such that a
person holding one office could impose policies on the other or subject the other to its control.
Moreover, the mere overlap of geographic boundaries where there is no other potential conflict does
not compel us to find these two offices incompatible. Accordingly, it is our opinion that conflicting
loyalties incompatibility does not bar a county commissioner from serving as a municipal judge of
a city located within his county.
IV. Judicial Canons
Finally, you allude to the Texas Code of Judicial Conduct (the “Code”) and appear to inquire
whether it would preclude a municipal judge, once appointed, from serving as a county
commissioner. See Request Letter, supra note 1, at 3. In your letter, you bring to our attention
Canon 5(3) ofthe Code. See id. Canon 5(3) provides that “[a] judge shall resign fromjudicial office
upon becoming a candidate in a contested election for a non-judicial office either in a primary or in
a general election or in a special election.” TEX. CODEJUD.CONDUCT,Canon 5(3), reprinted LATEX.
GOV’T CODEANN. tit. 2, subtit. G, app. B (Vernon 2005). You correctly point out that Canon 6C
exempts municipal judges from complying with Canon 5(3). See Request Letter, supra note 1,
at 3; TEX. CODEJUD.CONDUCT,Canon 6C(l)(e), reprinted in TEX. GOV’T CODEANN. tit. 2, subtit.
G, app. B (Vernon 2005) (providing municipal judge “is not required to comply: . . . (e) with Canon
5(3)“). Because the language of the Code is clear, we conclude that Canon 5(3) does not prohibit
a municipal judge from serving as a county commissioner.
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Though you do not inquire about them, we nevertheless consider other canons that might
prohibit a municipal judge from simultaneously serving as a county commissioner. Canon 4H states
that a “judge should not accept appointment to a governmental committee, commission, or other
position that is concerned with issues of fact or policy on matters other than the improvement of the
law, the legal system, or the administration of justice.” TEX. CODE JUD. CONDUCT,Canon 4H,
reprinted in TEX. GOV’T CODE ANN. tit. 2, subtit. G, app. B (Vernon 2005). This office has
previously considered Canon 4H as it pertained to a municipal judge holding the position ofjunior
college district trustee. See Tex. Att’y Gen. Op. No. JC-0216 (2000). Attorney General Opinion
JC-02 16 concluded that because the trustee position was “elective rather than appointive,” Canon
4H was not applicable. Id. at 3. Moreover, Opinion JC-0216 recognized that Canon 6C exempted
municipal judges from operation of Canon 4H. See id.; TEX. CODEJUD. CONDUCT,Canon 6C,
reprinted in TEX. GOV’T CODEANN. tit. 2, subtit. G, app. B (Vernon 2005). For the same reasons,
we conclude that Canon 4H does not prevent a municipal judge from also holding the office of
county commissioner.
These conclusions, however, do not end the inquiry because Canon 6C does not exempt
municipal judges from compliance with all judicial canons. A municipal judge must still comply
with Canons 2A, 3A, 4A, and 41(l), all of which might be relevant here. Pursuant to Canon 2A, a
judge “should act at all times in a manner that promotes public confidence in the integrity and
impartiality of the judiciary.” TEX. CODEJUD.CONDUCT,Canon 2A, reprinted in TEX. GOV’T CODE
ANN. tit. 2, subtit. G, app. B (Vernon 2005). In addition, the judge’s judicial duties “take precedence
over all the judge’s other activities,” and a judge shall conduct all “extra judicial activities so that
they do not: (1) cast reasonable doubt on the judge’s capacity to act impartially. . . ; or (2) interfere
with the proper performance ofjudicial duties.” Id. Canons 3A, 4A. A judge is also prohibited from
receiving compensation and expenses for extra-judicial activities where the source of the payments
“give[s] the appearance of influencing the judge’s performance ofjudicial duties or otherwise give[s]
the appearance of impropriety.” Id. Canon 41( 1).
Without legal analysis or citation of any particular canon, the State Commission on Judicial
Conduct (the “Commission”) issued a Public Statement condemning the practice of a judge
concurrently serving as a law enforcement officer. See State Comm’n on Judicial Conduct, Public
Statement No. PS-2000-l .I1 Because the two offices were part of different branches (judicial and
executive), the Commission concluded that a judge attempting to fulfill the requirements of both
offices would “severely compromise[] the impartiality and independence of the judicial office.” Id.
A municipal judge serving as county commissioner might raise some of the concerns that the
Commission addressed in its Public Statement. In considering a similar scenario concerning a
temporary municipal judge serving as the city’s finance director, this office concluded that the
question “[wlhether a judge’s conduct in specific circumstances offends the Code of Judicial
Conduct is ultimately a matter for the State Commission on Judicial Conduct.” Tex. Att’y Gen. Op.
No. GA-0199 (2004) at 4 (stating “the opinion process [cannot] investigate and resolve the fact
questions that may be necessary to determine whether the temporary municipal judge has violated
any” canons). We reach the same conclusion here. While Canons 5(3) and 4H do not preclude the
“Available at www.scjc.state.tx.us (under “Public Information” heading).
The Honorable Richard J. Miller - Page 7 (GA-0348)
dual service about which you inquire, the question as to whether, under other judicial canons, a
municipal judge holding the position of county commissioner would “undermine[] the public’s
confidence in an impartial and independent judiciary”” is a question we must leave to the State
Commission on Judicial Conduct.
12See State Comm’n on Judicial Conduct, Public Statement No. PS-2000-l.
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SUMMARY
Neither Article XVI, section 40, nor Article II, section 1 of
the Texas Constitution prohibits a county commissioner from
simultaneously serving as a municipal judge for a municipality within
the county. Similarly, the common-law doctrine of incompatibility
does not bar the contemplated dual service. While Canons 5(3) and
4H of the State Code of Judicial Conduct do not prevent a municipal
judge from holding the office of county commissioner, other canons
might, and the question as to whether other canons preclude such
service is a matter for the State Commission on Judicial Conduct.
BARRY R. MCBEE
First Assistant Attorney General
DON R. WILLETT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Charlotte M. Harper
Assistant Attorney General, Opinion Committee