Untitled Texas Attorney General Opinion ( 2011 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
February 7,2011
The Honorable Susan D. Reed Opinion No. GA-0840
Bexar County Criminal District Attorney
Cadena-Reeves Justice Center Re: Whether an individual may simultaneously
300 Dolorosa, Fifth Floor serve as the Director of Judicial Support Services
San Antonio, Texas 78205-3030 for Bexar County and as a visiting statutory county
court judge in that county (RQ-0909-GA)
Dear Ms. Reed:
You ask whether an individual may simultaneously serve as the Director of Judicial Support
Services for Bexar County and as a visiting statutory county court judge in that county.l
You explain that, in 2009, the Bexar County Commissioners Court created the position of
Director of Judicial Support Services "to assist the Commissioners Court in creating a more efficient
criminal justice system with the goal of reducing the Bexar County jail population." Request Letter
at 1. Moreover, the "job description also includes the duty of assisting the regional presiding judge
by accepting assignments to the Bexar County Courts." Id. You state that the commissioners court
has employed a particular retired statutory county court judge for the position of director. Id. at 2.
You inquire whether that individual may simultaneously serve both as the director and as a visiting
statutory county court judge. [d. at 5.
Article XVI, section 40 of the Texas Constitution prohibits a person from simultaneously
holding more than one "civil office of emolument." TEx. CONST. art. XVI, § 40. As you note, the
position of director is an "employment" rather than an "office."z Request Letter at 2-3. Because the
director does not as such hold a public office, he is not prohibited by article XVI, section 40 from
simultaneously holding the position of visiting judge.
'Request Letter (available at http://www.texasattorneygeneral.gov).
'The Texas Supreme Court has declared that "the determining factor which distinguishes a public officer from
an employee is whether any sovereign function of the government is conferred upon the individual to be exercised by
him for the benefit of the public largely independent of the control of others." Aldine Indep. Sch. Dist. v. Standley, 280
S.W.2d 578, 583 (Tex. 1955).
The Honorable Susan D. Reed - Page 2 (GA-0840)
We must also consider the possible applicability of the common-law doctrine of
incompatibility to your question. That doctrine acts to prevent conflicts in three situations: self-
appointment, self-employment, and conflicting loyalties. See Tex. Att'y Gen. Op. No. GA-0766
(201O) at 1. Neither self-appointment nor self-employment is applicable in the situation you pose,
because the commissioners court, rather than the visiting judge, both appoints and employs the
director. Likewise, the regional presiding judge, rather than the director, appoints the visiting judge,
and the commissioners court, as the administrative arm of the county, serves as his employer.
Conflicting loyalties incompatibility "prohibits an individual from simultaneously holding
two positions that would prevent him ... from exercising independent and disinterested judgment
in either or both positions." Tex. Att'y Gen. Op. No. GA-0169 (2004) at 2. It is now well
established that, in order for conflicting loyalties incompatibility to apply, each position must
constitute an "office." Tex. Att'y Gen. Op. Nos. GA-0766 (2010) at 1-2, GA-0538 (2007) at 2,
GA-0402 (2006) at 2, GA-0393 (2006) at 3. Because, as we have indicated, the position of director
is not an "office," it follows that conflicting loyalties incompatibility is not a bar to the simultaneous
service at issue here.
Because you inquire about the legal validity of a judge's service, we note that questions
regarding the ethical propriety of the issue you raise should be addressed to the State Commission
on Judicial Conduct. See Tex. Att'yGen. Op. No. GA-065l (2008) at 6. 3
'In an official statement issued in 2000, the Commission observed that, under the Code of Judicial Conduct,
"an act that is legal is not necessarily an act that is ethical." See STA1E COMM'N ON JUDICIAL CONDUCT, PUBLIC
STA1EMENTNo. PS-2000-1 (Mar. 24, 2000), available at http://www.scjc.state.tx.us/pdf/psIPS-2000-I.pdf(last visited
Jan. 31, 2011).
The Honorable Susan D. Reed - Page 3 (GA-0840)
SUMMARY
Neither article XVI, section 40 ofthe Texas Constitution nor
the common-law doctrine of incompatibility prohibit an individual
from simultaneously serving as a visiting statutory county court judge
in Bexar County and as Director of Judicial Support Services for
Bexar County. The Texas Commission on Judicial Conduct is
responsible for determining whether such simultaneous service
implicates the Code of Judicial Conduct.
Very truly yours,
DANIEL T. HODGE
First Assistant Attorney General
DAVID J. SCHENCK
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Rick Gilpin
Assistant Attorney General, Opinion Committee