Untitled Texas Attorney General Opinion ( 2011 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
February 7, 2011
The Honorable Allan B. Ritter Opinion No. GA-0841
Chair, Committee on Natural Resources
Texas House of Representatives Re: Whether a part-time municipal court judge
Post Office Box 2910 may simultaneously serve as a member of the
Austin, Texas 78768-2910 Board of Commissioners of the Jefferson County
Drainage District No.7 (RQ-091l-GA)
Dear Representative Ritter:
You ask several questions regarding a person's simultaneous service as an appointed part-
time municipal court judge and as an elected commissioner on the Board of Commissioners of the
Jefferson County Drainage District No.7 ("District").! In addition to receiving compensation as
municipal judge, the person about whom you inquire also receives compensation for serving as a
commissioner ofthe District. See Request Letter at 1. Specifically, you ask the following questions:
1) Whether Article XVI, Section 40, Texas Constitution, prohibits an
appointed, part-time Municipal Court Judge from also serving as an
elected Commissioner to the Board of Commissioners of a drainage
district[.] If not, whether the Judge may also receive compensation
for his service as a Commissioner to the drainage district[.]
2) Whether the exceptions contained in Article XVI, Section 40,
Texas Constitution, that reference in part "water conservation
districts" also include drainage districts, such as Jefferson County
Drainage District No. 7[.] Further, if a drainage district is not
included in the definition of a "water conservation district" under the
applicable law, what type of districts are covered by the exception
provided for a "water conservation district?"
3) Whether the common[-]law doctrine of incompatibility has any
impact upon the subject matter[.]
Request Letter at 2-3. We address your first two questions together.
ISee Request Letter at 1 (available at www.texasattorneygeneral.gov).
The Honorable Allan B. Ritter - Page 2 (GA-084I)
Article XVI, section 40, Texas Constitution, provides that "[njo person shall hold or exercise
at the same time, more than one civil office of emolument." TEx. CONST. art. XVI, § 40(a). For
purposes of this provision, a "civil office" is a "public office." Tilley v. Rogers, 405 S.W.2d 220,
224 (Tex. Civ. App.-Beaumont 1966, writ ref'd n.r.e.). An "emolument" is a "pecuniary profit,
gain, or advantage." Tex. Att'y Gen. Op. No. GA-0132 (2003) at 1 (citing Irwin v. State, 177
S.W.2d 970, 973 (Tex. Crim. App. 1944)).
This office has previously determined that a compensated municipal judge, whether full or
part-time, holds a public office of emolument. E.g., Tex. Att'y Gen. Op. Nos. GA-0199 (2004)
at 2 (stating that a municipal judge is an officer, but that an uncompensated temporary municipal
judge does not hold a civil office of emolument). A compensated part-time municipal court judge
is therefore prohibited by article XVI, section 40 from holding any other office of emolument. See
Tex. Att'y Gen. Op. No. DM-428 (1996) at 3.
As a member of a governing body of a political subdivision, a commissioner of a drainage
district occupies a public office. See Tex. Att'y Gen. Op. No. JC-0455 (2002) at 3-4 (considering
sovereign function test under Texas Supreme Court opinion Aldine Independent School District v.
Standley, 280 S.W.2d 578 (Tex. 1955), and stating that "[aj member of the governing body
of a political subdivision ... clearly occupies an office"); Jones v. Jefferson Cnty. Drainage
Dist. No.6, 139 S.w.2d 861,862 (Tex. Civ. App.-Beaumont 1940, writ ref' d) ("Drainage districts
... are political subdivisions of the state of the same nature and stand upon exactly the same
footing as counties, or precincts, or any of the other political subdivisions of the state."); see also
Tex. Att'y Gen. Op. No. JM-1266 (1990) at 2 ("Elected officials are clearly officers."). Because the
office of commissioner of the District is a compensated position, the office is one of emolument.
Accordingly, pursuant to article XVI, section 40, a compensated part-time municipal court judge may
not serve as a commissioner on the Board of Commissioners of a drainage district.
You suggest in your second question that the office of commissioner of a drainage district
may be exempt from article XVI, section 40, because that provision exempts "water conservation
district[sj" from its reach. Request Letter at 2. Section 40, however, does not exclude a "water
conservation district" but rather a "soil and water conservation district." TEX. CONST. art. XVI,
§ 40. Opinions of this office have consistently concluded that a soil and water conservation district
in article XVI, section 40 is a district created under chapter 201, Agriculture Code. See e.g., Tex.
Att'y Gen. Op. No. JC-0095 (1999) at 2-3 (and sources cited therein). In addition, this office has
expressly determined that a director of a drainage district does not fall within the soil and water
conservation district exception because "[djrainage districts are created pursuant to chapter 56 of the
Texas Water Code [andj [s joil and water conservation districts" are created under chapter 20 I of the
Texas Agriculture Code. Id. at 2 (citing Tex. Att'y Gen. LA-150 (1978) at I). A member of the
Board of Commissioners of the District is not a director of a soil and water conservation district and
thus not exempt from the operation of article XVI, section 40.
Because we have concluded that the Texas Constitution bars the simultaneous service about
which you ask, we do not address your third question.
The Honorable Allan B. Ritter - Page 3 (GA-084I)
SUMMARY
Texas Constitution, article XVI, section 40, prohibits a
compensated part-time municipal court judge from simultaneously
serving as a member of the Board of Commissioners of the Jefferson
County Drainage District No.7.
DANIEL T. HODGE
First Assistant Attorney General
DAVID J. SCHENCK
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Charlotte M. Harper
Assistant Attorney General, Opinion Committee