Untitled Texas Attorney General Opinion

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DAN MORALES
ATTORNEY
CENERAL December 19, 1996

The Honorable Gakn Ray Sumrow Opinion No. DM-428
CriminalDistrict Attorney
Rockwall County Courtbo~~se Re: Whether a person may simultaneously
Rockwa& Texas 75087 serve as a municipal judge in more than one
jurisdiction (RQ 873)

Dear Mr. Sumrow:

You have requested our opinion as to whether a person may simultaneously serve
as a municipal judge in more tlk one jurisdiction. Article XVI, section 40, of the Texas
Constitution provides, in relevant part:

No 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 , . . It is krther
provided that a nonelective State officer may hold other nonelective
offices under the State or the United States, if the other 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 for which he
receives salary or compensation.

We first consider whether the position of municipal judge is an “office.“~ In
Purcell v. cmrillo, the court, without elaboration, held that “the office of City Judge of
Alice . . . is a civil 05ce of emolument.” Purcell v. Carrillo, 349 S.W.2d 263 (Tex. Civ.
App.-San Antonio 1961, no writ). L&wise, in Attorney General Opiion JM-333, this
office said that a municipal judge occupies a civil office of emolument. Attorney General
Opinion JM-333 (1985) at 2. Since, however, neither the case nor the opinion offer a
compelling analysis for this conchkon, and be-cause of the serious difficulty king small
cities in attempting to procure the services of part-time municipal judges, we feel that it is
appropriate to consider the matter anew.

‘We assume your question relates only 10 municipaljudges who receive compensation. If a
mmieipJ judge is paid for his servicesin onejurisdiction,but not in the other,he does not occupy more
than one o&e “of emolument,”and lhos.,articleXVI, section 40, does not bar him from dual service.
seelr;uin Y.state, 177 s.w.?.d 970,973 (-Rx. aim. App. 1944).
The Honorable Galleon Sumrow - Page 2

The test adopted by the Supreme Court in Ah&e Independent School Dill. v.
Standley is the one commonly used to determine whether an individual is a “public
00%X.?-:

[T]he determining factor which distinguishes a public officer
from an employee is whethex any sovereign lbnction of the
government is conferred upon the individual to be exercised by him
for the benefit of the public largely indqendenf of the control of
ohm.

AkGe Inakpena!en~ School Dial. v. Ban&y, 280 S.W. 2d 578, 583 (TX. 1995)
(emphasis in original). In Sme ex rel., Hill v. Pirile, the court held that neither an
assistant attorney general nor an assistant district attorney holds an “office.” According to
the coulf an “officer”

is authorized by law to independently exercise functions of eitber an
executive. legisiativ~ or judicial character, and the exercise of this
power by the officers is subject to revision and correction only
according to the standing laws of this state. A public employee; in
contra% is a person in public service whose duties are generally
routine, subordinate, advisory, and as d&ted.

Stuie ex rel., Hill v. Pirlle, 887 S.W.2d 921. 93 1 (Tex. Crim. App. 1994). As the court
indicated, an assistant attorney general “operates under the direct supavision of the
Attorney General and exercises no independent executive power,” while an ass&ant
prosecuting attorney “is hired by the district attorney, serves under his direction and at his
discretion, and exercises no independent prosecutorial power.” Id. at 93 1.

By contrast, the position of municipal judge, whether appointed or elected, bears
all the indicia of ‘05ce.” A municipal judge is a member of the judiciary of the state,
and, like a8 judges, he is authorized to deCnitive.ly adjudicate the rights of parties
appearing before him. Hi&nun v. Slate, 183 SW. 1180 (Tex. Crim. App. 1916). His
exercise of judicial power “is subject to revision and correction only according to the
standii laws of this state.” Stale ex rel., Hill, 887 SW.2d at 931. In our opinion, it
seems evident that every such individual exercises a “sovereign 8metion of government,”
and that he does so “hugely independent of the control of others.” See Attorney General
Opinion Jh4499 (1986). We thus a5rm the holdings of Purcell v. cmrillo, and Attorney
Genera) Opinion IM-333, supru, and conclude that a compensated municipal judge,
whether 111 or patt-time, elected or appointed, holds a “public office,” and that, except in
the circumstances described below, he is prohibited from serving in that position in more
than one jurisdiction.

As noted previously, however, a proviso to article XVI, section 40, declares that
“a nonelective State o5cer may hold other nonekctive offices under the State or the
United States, if the other office is of benefit to the State of Texas or is required by the

0. 2389
 The Honorable Galleon Sumrow - Page 3

State or Federal law, and there is no conflict with the original 05ce for which he receives
salary or compensation.” Tex. Const. art. XVI, 5 40. A municipal judge, like other
municipal officials, is an “officer under the state.” See Willis v. Potts, 377 S.W.2d 622,
625 (Tex. 1964). The matter of “conflict” raises essentially an incompatibiity question.
This 05ce has recognized three branches of incompatibility: self-employment, self-
appointment, and conflicting loyalties. Letter Opinion No. 93-70 (1993). We are aware
of no situation in which a municipal judge of one jurisdiction appoints or supervises a
municipal judge of another jurisdiction. Neither can we imagine how an issue of
“conflicting loyalties” might arise, since the various municipalities constitute entirely
separate jurisdictions with no role in the affairs of other municipalities.

The question then is whether the holding by a single individual of more than one
municipal judgeship “is of benefit to the State of Texas”2 In a particular instance-
whether the holding of two identified municipal judgeships by a single named person
constitutes a “benefit” to the state--this is a factual inquiry. On the other hand, one might
argue that the holding of multiple municipal judgeships by one individual is, us u gene&
mailer, of benefit to the state. Such a finding would be more in the nature of a legal
determination that is derived from an analysis of numerous fact situations. In either case,
the resolution of these questions cannot be made by this office. As we have often stated,
we cannot answer factual inquiries.. Nor can we presume to declare the validity of the
’ general proposition. Neither the constitution nor any statute tiunishes any criteria for
. making such a finding, and we are not at liberty to do so merely because a number of
individuals at present hold multiple municipal judgeships or because residents and officials
of various small cities wish to maintain their current arrangements.

In our opinion, the matter peculiarly calls for a legislative resolution. The
legislature is eminently qualified to determine what particular solutions to the matter of
multiple municipal judgeships would “benefit” the state of Texas. Furthermore, the
legislature could easily couple such a finding with a comprehensive statute setting out
what limits, if any, it might find appropriate for such arrangements, and a delineation of
the circumstances under which an individual might hold multiple municipal judgeships. In
our view, such a resolution would not merely satisfy the constitutional requirement: it
seems to be precisely what is called for by the proviso to article XVI, section 40.

Accordingly, it is our opinion that a compensated municipal judge, whether fidl or
part-time, elected or appointed, holds a “public office,” and he is prohibited by article
XVI, section 40, Texas Constitution, from holding more than one such office. If
however, he is an appointed municipal judge, he may hold more than one such
appointment, provided the holding of the second 050~ is “of benefit to the State.” The

zWe presumethe constitutionalprovisionmeansthat the holding of “the otheroffice is of benefit
to the gate.” Surelyeverypubtic@ce createdor authorizedby mnstihttionor stahxe is “of benefitto the
state.”
The Honorable Galleon Sumrow - Page 4

legislature is the appropriate body to determine, as u getreml matfer, whether, ,and under
what ciraunstances, the holding of multiple municipal judgeships is “of benefit to the
State.” On the other hand, the courts are best qualified to determine whether the hokhng
of more than one particular municipal judgeship by a particular individual wnstitutes a
%eneW to the state.

SUMMARY

A wmpensated municipal judge, whether full or part-time,
ekxted or appointed, holds a “public office,” and is subject to article
XVI, section 40, of the Texas Constitution, which prohibits the
hokiing of more than one such office. Jf he is an qpinfed municipal
judge, he may hold more than one such appointment, providedthe
holding of the second 05ce is “of benefit to the State.” The
legislature is the appropriate body to determine, as u genemlmarter,
whether, and under what circumstances, the holding of multiple
municipal judgeships is “of benefh to the State.” whether the
holding of particular municipal judgeships by a particular individual
wnstitutes a %eneW to the state requbes the resolution of fbctual
matters inappropriate to the opinion process.

DAN MORALES
Attorney General of Texas

JORGE VEGA
Fii flhtant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by Rick Gilpin
Assistant Attorney General

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