Untitled Texas Attorney General Opinion ( 1991 )

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March 27,199l
Honorable John Whitmire Opinion No. DM-11
Senate Committee on
Intergovernmental Relations Re: Authority of a commissioners court to set the
Texas State Senate salary of a county court-at-law judge and to supple-
P. 0. Box 12068 ment the salary of a district judge, and related ques-
Austin, Texas 78711 tions (RQ-4)
Dear Senator Whitmire:
The Senate Committee on Intergovernmental Relations asked the following
question.
Is there a ‘constitutional conflict of interest’ in the
commissioners court’s ability to set the salary of a county court
at law judge and in setting a supplement to the salary of a dis-
trict judge when the judges receiving the sakuy and the stipple-
ment are then asked to rule on cases which directly affect the
commissioners court?
Chapter 25 of the Government Code provides generally for county
courts-at-law, also referred to therein as “statutory county courts.” Section 25.0005
provides as follows with respect to the salaries of judges of such courts:
(a) Subject to any salary requirements otherwise imposed
by this chapter for a particular court or county, the commission-
ers court sets the salary of each statutory county court judge.
(b) The salary shall be paid in equal monthly installments.
Other provisions in chapter 25 applicable to specific statutory county courts
make exceptions to the requirement of section 250005(b) that the salaries of statu-
tory county court judges are to be paid in equal monthly installments. See, e.g., id.
5 250302(h) (subsection (b) of section 25.0005 does not apply to a county
court-at-law in Caldwell County). However, the provision of subsection (a) of sec-
tion 25.0005, that the commissioners court sets the salary of such judges, appears to
apply generally to all Texas counties.
p. 51
Honorable John Whitmire - Page 2 (DM- 11)
Chapter 32 of the Government Code provides for additional or supplemental
salary to be set, within specified limits, by enumerated commissioners courts for cer-
tain district judges serving those counties. See, e.g., id 8 32.002 (Andrews County
Commissioners Court to pay judge of the 109th Judicial District additional annual
salary not to exceed $5000).
The request letter does not cite any particular constitutional provisions as
apposite. The only constitutional provision we find that might arguably apply to the
issue you present is that in article V, section 11, that “[n]o judge shall sit in any case
wherein he may be interested.”
The term “interest” in article V, section 11, as interpreted by the courts, has
a “special and limited meaning; it refers only ro direct pecuniary interests.” 1
G. BRADEN,THE CONSTITUTION OF THE STATEOF TEFW: AN ANNOTATED
AND COMPARATIVEANALYSISat 423 (1977). A pecuniary interest suffkient to
disqualify a judge under article V, section 11, must also be real and certain. Any
pecuniary gain or loss to the judge must be an immediate, necessary, and
quantifiable result of the judgment to be rendered in the particular case, and not
merely a possible or incidental result. See bve v. Wilca 28 S.W.2d 515 (Tex.
1930) (justice, who was himself a candidate in primary, not disqualified to consider
mandamus proceeding by another candidate to have his name printed on primary
ballot); Nueces Coun&&&aPe & Conservb Dist. No. 2 v. Bevly, 519 S.W.2d
938 (Tex. Civ. App.--Corpus Christi 1975, writ refd n.r.e.) (judge’s interest as
taxpayer in drainage district too remote to disqualify him from hearing action to
enjoin district from making certain improvements); Narro Ware~house.c. v. K&
530 S.W.2d 146 (Tex. Civ. App.--Corpus Christi 1975, writ refd n.r.e.) (judge no;
disqualified to sit in condemnation case by reason of having accepted free legal
services of attorney in another case in federal court in which both judge and litigants
in condemnation proceeding were parties).
In our opinion, the Government Code provisions authorizing commissioners
courts to set salaries for county court-at-law judges and salary supplements for dis-
trict judges do not create a “constitutional conflict of interest.” The possibility that
the judge’s actions might be influenced by the fact that the commissioners court sets
his salary or supplement is too remote and uncertain to be an “interest” within the
meaning of the article V, section 11, prohibition.
P. 54
Honorable John Whitmire - Page 3 (DM- 11)
SUMMARY
The statutory provisions for county commissioners courts’
setting the salaries of county court-at-law judges and the salary
supplements of district court judges do not create a “constitu-
tional conflict of interest.
DAN MORALES
Attorney General of Texas
WILL PRYOR
First Assistant Attorney General
MARY KELLER
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY (Ret)
Special Assistant Attorney General
RENEA HICKS
Special Assistant Attorney General
SUSAN GARRISON
ActingChairman, Opinion Committee
Prepared by William Walker
Assistant Attorney General
p. 53