The Attorney General of Texas
Oczober 23, 1984
JIM MATTOX
Clarification of LA-23
Attorney General
Supreme Court Building Honorable James S. HcGrath Opinion No. JM-213
P. 0. Box 12548 Criminal District Attorney
Austin. TX. 78711. 2540 Jefferson County Re: Whether one person may serve
512/475~2501 P. 0. Box 2553 simultaneously as county court
Telex 9101874-1387
Beaumont, Texas 77704 at law judge and trustee of an
Tefecopier 5121475.0266
independent school district
714 Jackson. sum 700 Dear Mr. McGrath:
Dallas. TX. 75202.4506
2141742.8944
You state thiu: a trustee of a local independent school district
was recently appointed judge of a county court at law in Jefferson
4824 Alberta Ave., Suite 160 County. You ask:
El Paso. TX. 799052793
915153x3484 May il person serve both as a county court at
law judf,e and as a member of the board of trustees
001 Texas. Suite 700
of an kiependent school district?
HOUS,O~. TX. 77002.3111
7131223~5886 This office ks generally applied three tests to answer questions
about dual office t,olding. These are as follows:
806 Broadway. Suite 312
1. Ilcses one person hold two offices in
LUbbOCk. TX. 79401.3479
8061747~5238 different, branches of government in violation of
article II, section 1 of the Texas Constitution?
4309 N. Tenth, slnte B
2. Ilcbes one person hold two civil offices of
McAllen. TX. 78501.1685
5121882-4547
emolument: in violation of article XVI. section 40
of the ::cxas Constitution?
200 Main Plaza. Suite Gil 3. Does one person hold two offices with
San Antonio. TX. ?8205-2797
conflicl::.ng duties in violation of the common law
512/2254191
doctrine! of incompatibility?
In addition to t:wse general restrictions’, certain constitutional
provisions prohib:ll: specific officers from holding other public office
or employment. See Tex. Const.
--- art. III, §%18, 19 (legislators and
other elected officials); art. IV, §6 (governor); art. XVI, 512
(federal, foreign, or sister state officers). Yone of these apply to
the offices you inquire about. Statutory prohibitions against the
holding of two of~%ces may also apply in particular cases. See, e.g.,
Educ. Code §11.,:12(b); Attorney General Opinion i-W-479 (1982)
(eligibility for wmbership on State Board of Education).
p. 956
q
Honorable James S. McGrath -’ Page 2 (JM-213)
We will deal with art:kle XVI, section 40 first, because it is
the most easily applied test of the three. It states as follows:
theSe;m;Okim+erson shall hold or exercise at
, more than one civil office of
emolument, except-that of Justice of the Peace,
Countv Commissioner. Notary Public and Postmaster.
Offi& of the National Guard, [other exceptions
for certain military officers] . . . and the
officers and directors of soil and water
conservation distl::.cts. unless otherwise specially
provided herein. Provided, that nothing in this
Constitution shall be construed to prohibit an
officer or enlist,,d man of the National Guard,
[other exceptions for military officers] and
officers of the State soil and water conservation
districts, from ho::ding at the same time any other
office or position of honor, trust or profit,
under this State or the t’nited States, or from
voting at any election, general, special or
primary in this State when otherwise qualified.
State employees or’ other 1ndividual.s who receive
all or part of tt,eir compensation either directly
or indirectly from funds of the State of Texas and
who are not State officers, shall not be barred
from serving as m8rmbers of the governing bodies of
school districts, cities, towns, or other local
governmental districts; provided, however, that
such State emplopzes or other individuals shall
receive no salar), for serving as members of such
governing bodies. It is further provided that a
nonelective Stat3 officer may hold other
nonelective offices under the State or the United
States, if the o::her office is of benefit to the
State of Texas or is required by the State or
Federal law, and there is no conflict with the
original office Ear which he receives salary or
compensation. No member of the Legislature of
this State may ?;;?Ld any other office or position
of profit under &is State, or the United States,
except as a no&y public if -qualified by law.
(Emphasis added).-
No compensation attaches to the office of school trustee. See Educ.
Code 523.19(e); Attorney General Opinion WW-246 (1957). TK, this
office is not an office of emolument, and article XVI, section 40 does
not bar a school trustee from holding a second office.
p. 957
.
Honorable James S. McGrath -’ Page 3 (JM-213)
Article II, section 1 oE the Texas Constitution provides for the
separation of powers. This provision states as follows:
The powers of the Government of the State of Texas
shall be divided into three distinct departments,
each of which sha:.:. be confided to a separate body
of magistracy, to wit: Those which are
Legislative to one, those which are Executive to
another, and thos,! which are Judicial to another;
and no person, or collection of persons, being of
one of these departments, shall exercise any power
properly attached to either of the others, except
in the instances Iu:rein expressly permitted.
Article II. section 1 is more difficult to apply than article
XVI, section 40. In Attorno:f General Opinions H-6 and H-7 (1973) this
office construed article II, section 1 to prohibit a person who held
office in one department of government from holding an office or
employment in another branc:t. of government. Letter Advisory No. 137
(1977). however. held article II, section 1 inapplicable to publ,ic
employment and thus overruled the earlier opinions in part.
Attorney General Opinion H-6 cited but did not discuss cases from
other states construing constitutional provisions comparable to
article II, section 1. See State v. Burch, 80 N.E.2d 294 (Ind. 1948)
(legislator may not perfo& “functions” of another department of
government); Saint v. Aller:, 126 So. 548 (La. 1930) (legislators may
not “exercise power” of another department by serving as employee);
Monaghan v. School District No. 1, Clackamas County, 315 P.2d 797
(Ore. 1957) (legislator &y not perform “functions” of another
department). Nor did the o!,:lnion analyze the reasoning of these cases
or explain why they should control the interpretation of a Texas
constitutional provision.
Texas case law on this subject is meager indeed. The court in
Ruiz v. State, 540 S.W.2d 809 (Tex. Civ. App. - Corpus Christi 1976,
no writ), following the lead of this office, treated article 11,
section 1 as an impediment to dual office holding. It did not,
however, adopt in all respects the interpretation of this provision
given in Attorney General Opinion H-6 and subsequent advisory
documents. See Letter Advis,,ry Nos. 137 (1977); 106 (1975). Ex parte
Dailey, ‘+46 S.W. 91 (Tex. Crim. App. 1922) Includes the following
dictum:
If a district jr?ge holding a commission as an
officer in the National Guard was directed by the
Governor to call out his company, or if he should
find it necess;*::y to do so upon his own
3nitiative. it
-- might be that judicial authoritv
p. 958
Honorable James S. McCrath - Page 4 (JM-213)
and executive aurhority would be lodged in the
same Individual. Then a different question would
arise. That conl::.ngency is not presented in the
case before ua. (Emphasis added).
246 S.W. at 93. See als! Attorney General Opinion O-1561 (1939)
(relying on article II, swtion 1 and article XVI, $33 to bar dual
office holding).
Attorney General Opin.lons H-6 and H-7 did not construe article
II. section 1 in the context of the entire constitution. See Gragg v.
Cayuga Independent School District, 539 S.W.2d 861 (Tex. 1976). appeal
dismissed, 429 U.S. 973 (1976);erson V. State. 177 S.W.2d 975 (Tex.
Crim. App. 1944). Thus, thwe opinions overlooked the differences In
language between article I::, section 1, which refers to the exercise
of power, and provisions like sections 12 and 40 of article XVI, vhjch
explicitly bar dual office holding. Nor did the opinions consider
whether the terms of article II, section 1 might be defined by
reference to the constj tutional provisions which entrust the
legislative, executive, ant, judicial power of the state to identified
officers and offices. -See Tex. Const. art. ‘
III, 51; art. IV, Sl; art.
v, Il.
Finally. Attorney Genc:l,al Opinions H-6 and H-7 did not consider
whether the language of article II, section 1 might be construed as
applying only to state lewl offices , and not to offices of political
subdivisions. Courts of other states have construed similar
provisions as prohibitiug dual office holding on the state level onlv.
See Peterson vi Culpeppe;, 79 S.W. 783 (Ark.-1904); State V. Tovnsend,
79 S.W. 782 (Ark. 1904). l’ke application of article II, section 1 to
offices of political subdiv:.sions requires the classification of each
such office as legislative, judicial or executive. All local offices
cannot be so neatly categorized. For example. Letter Advisory No. 112
(1975) characterized city tcuncils as legislative bodies because they
exercise legislative powl s. City councils, however, are also
responsible for enforcing the laws and for hiring and firing city
employees. V.T.C.S. arts. 1002, 1011, 1015. Mayors of general law
cities, in some instances, may also be municipal judges. V.T.C.S.
art. 1197. The mayors and city councils of general law cities have
held these diverse powers since at least 1875. See Acts 1875. 14th
Leg. 2d Sess., ch. C., at 113. The legisleture which enacted these
statutes did not believe tt;zt article II, section 1 prevented it from
allocating legislative, executive, and judicial powers to a mayor.
Statutes enacted near the time that the Constitution was adopted carry
great weight In construing the Constitution. Hill County v. Sheppard,
178 S.W.2d 261 (Tex. 1944). See also Educ. Code 1523.25-23.31 (powers
of school trustees); Acts l1105, 29th Leg., ch. 124. 542. at 274; Acts
1879, 16th Leg., ch. LXVII. at 76.
p. 959
Honorable James S. McGrath - Page 5 (JG213)
You correctly point auf, that Letter Advisory No. 23 (1973) holds
tkat article II. section j hars a school trustee from also being a
judge. Since many prohlen:i of interpretations surround article Il.
section 1 in its characce:::lzation as a bar to dual office holding,
however, we are reiuctant rc rely upon It or upon Letter Advisory No.
2:) (1973) as dispositive of your question.
Neither do we need to address here whether the common law
doctrine of incompatibility contro1.s in this case. since we believe
there is a statutory bar I.c this particular instance of dual office
holding, Article V, section i-a(6)A of the Texas Constitution
provides that any judge of a county court at law may be removed from
off ice for
willful or persistent conduct. which is clearly
inconsistent with the proper performance of his
said duties or :ssts public discredit upon the
judiciary or administration of justice.
The statute implementjng :hese provisions defines the prohibited
conduct to include willful. violation of a provision of the Code of
Judicial Conduct. V.T.C.S. art. 5966a. §6E. The Code of Judicial
Conduct includes the folloslng provision:
Extra-judicial A]~‘ointments. A judge shouid not
accept appointment to a governmental committee.
ccmmis*iOn, or ether posiiion that is concerned
with issues of F.act or policy on matters other
than the improvement of the law, the legal system,
or the adminis.:,raticn of justice. A judge.
however, may represent his country, state, or
locality on ceremonial occasions or in connection
with historical, educational, and cultural
activities.
Canon 5 (G) . We believe this provision. read together with article
5466a. bars a county coul’t at law judge from serving as a school
trustee.
SUMMARY
Article XVI, r:r,ction 40 does not bar one person
from serving as c:ounty court at law judge and s
school trustee ia a dfstrict in the ssme county.
Article 5966a. s(zg:tion 6E, bars a county court at
law judge from sc!rving as a school trustee. It Is
unnecessary to dz:idr whether article II, section
p. 960
Honorable James S. McCrath - Page 6 UN-2131
1 of the Texas Coustitutlon or the cornmoo law
doctrine of incompatibility bars this case of dual
office holding.
MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney Genmal
DAVID R. RICHARDS
Executive Assistant Attorney Ceneral
RICK GILPIN
Chairman, Opinion Comittee
Prepared by Susan L. Garrisou
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin. Chairman
David Brooks
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton
-
p. 961
Untitled Texas Attorney General Opinion
Combined Opinion