Untitled Texas Attorney General Opinion

. * . The Attorney General of Texas July 15, 1985 JIM MAllOX Attorney General ~U~WTW tiurt building Bonorablc Jesusa Sanchez-Vera Opinion Ho. m-333 P. 0. &lx 12546 Jim Wells County bttorney *urtin. TX. 76711- 2546 P. 0. Drawer 2080 Re: Whether a municipal judge 51214752501 Alice, Texas 78333 may simultaneously acme as Telex QlW0711367 T&,copirr 5121475~266 county auditor Dear Ms. Sanchez-Vera: 714 JackSOn. SUltE 700 D4llar. TX. 75202.4506 You ask vhcther the municipal judge of the city of Allce may 2141742.6944 continue. to sent! as judge after he has been appointed county auditor for Jim Wells County. You inform us that the individual in question 4624 Alb.rla AS-.. SUit4 166 vrote to the city council stating that he vould continue to se~e as EI PISO. TX. 799052793 municipal judge lut would forego the salary attached to that position. OlY53sY64 Article XVI, section 40 of the Texas Constitution prevents one looI Texas. SUIIS 700 person from holtling two civil offices of emolument. The office of Houston. TX. 77002.311~ county auditor and of municipal judge are both civil offices of 71312235886 emolument. See Purcell v. Carrillo, 349 S.W.Zd 263 (Tex. Civ. App. - San Antonio mi; no writ); Attorney General Opinions V-1541 (1952); O-2684 (1940); 2:~ also State v. Brinkerhoff. 17 S.W. 109 (Tex. 1886). 606 Broadway. Suite 312 Lubbock. TX. 79401.3479 When a civil of E:Lcer of emolument accepts and qualifies for another 606rl47.5236 civil office of emolument. he is deemid to ha;e vacated the first office. State -\I. Brinkerhof f , B. Centeno v. Inselmann, 519 S.W.2d 889 (Tex. Civ. App. - San Antonio 1975, no writ). Thus, by 4309 N. fenlh. Suit0 S accepting and qualifying for the offlce of county auditor, the McAllen. TX. 76501*1665 5W662.4547 individual in question effectively resigned his office as municipal judge. 200 Main Plaza. sui1e 400 His attempt to refuse the compensation of the municipal judge San Antonio. TX. 762052797 does not enable him to continue to hold the office. The compensation 5121225.4191 attached to a judge’s office is an incident to his title to office. Markwell v. Galveston County. 186 S.W.2d 273 (Tex. Civ. App. - Galveston 1945, &It ref’d). A public officer or employee cannot make a valid agreement to accept less compensation than the amount fixed by law. McGuire v. City of Dallas. 170 S.W.Zd 722 (Tex. 1943); Horriso; v. City of Port-Worth. -- 155 S.W.2d 908 (Tex. 1941). But see V.T.C.S. art. 3912m. 1311 cannot estop himself from collecting the full compensation by agreeing to accept less or actually accepting less, Id.; Broom v. Qler County Commissioners Court, 560 S.W.2d 435 (Tex, Civ. App. - Beaumont 1977, no writ). This rule applies to officer1 vhose compeasatf,Dn is fixed by statute and those whose compensation LI p. 1520 Rooorable Jesusr Sancber-Vera - Pago 2 (m-333) . fixed by a governmental bo’iy pursuant to statutory authority. see, w, Morrison v. City of l>rt Worth, mr (firemen’s compensation estsblished by state mlnimw wage provision); Broom v. Tyler County Comissioners Court, -, (J.P.‘s salary fixed by commissioners court pursuant to article 3’912k, V.T.C.S.); Pannin County v. Dobbs, 202 S.W.2d 950 (Ten. Cir. App, - Texerkana 1947, no writ) (county clerk’s salary fixed by cosdssioners court pursuant to articles 3883, 3891, 3899, 3912e. V.T.C.S.:,,, The governing body of ‘the city sets the municipal judge’s salary. V.T.C.S. art. 1010; ---see alno V.T.C.S. art. 1199a (compensation of substitute judge). The municipal judge has no power to waive that salary. He holds an office of emolument whether or not he accepts the compensation attached to the office. SUMMARY A municipal ;\udge holds a civil office of emolument even though he refuses to accept the compensation attsched to his office. Article XVI. section 40 of the Texas Constitution prohibits a municipal judge who qualifies for the position of county auditor :from continuing to serve as municipal judge. Attorney General of Texas TOMGRBRN First Assistant Attorney G~%neral DAVID R. RICHARDS Executive Assistant Attorney General ROBERTGRAY Special Assistant Attorney General RICX GILPIR Chairman, Oplnlon Committee Prepared by Susan L. Garrison Assistant Attorney General p. 1521