Untitled Texas Attorney General Opinion ( 1985 )

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The Attorney General of Texas
July 15, 1985
JIM MAllOX
Attorney General
~U~WTW tiurt building Bonorablc Jesusa Sanchez-Vera Opinion Ho. m-333
P. 0. &lx 12546 Jim Wells County bttorney
*urtin. TX. 76711- 2546 P. 0. Drawer 2080 Re: Whether a municipal judge
51214752501 Alice, Texas 78333 may simultaneously acme as
Telex QlW0711367
T&,copirr 5121475~266
county auditor
Dear Ms. Sanchez-Vera:
714 JackSOn. SUltE 700
D4llar. TX. 75202.4506
You ask vhcther the municipal judge of the city of Allce may
2141742.6944
continue. to sent! as judge after he has been appointed county auditor
for Jim Wells County. You inform us that the individual in question
4624 Alb.rla AS-.. SUit4 166 vrote to the city council stating that he vould continue to se~e as
EI PISO. TX. 799052793 municipal judge lut would forego the salary attached to that position.
OlY53sY64
Article XVI, section 40 of the Texas Constitution prevents one
looI Texas. SUIIS 700
person from holtling two civil offices of emolument. The office of
Houston. TX. 77002.311~ county auditor and of municipal judge are both civil offices of
71312235886 emolument. See Purcell v. Carrillo, 349 S.W.Zd 263 (Tex. Civ. App. -
San Antonio mi; no writ); Attorney General Opinions V-1541 (1952);
O-2684 (1940); 2:~ also State v. Brinkerhoff. 17 S.W. 109 (Tex. 1886).
606 Broadway. Suite 312
Lubbock. TX. 79401.3479
When a civil of E:Lcer of emolument accepts and qualifies for another
606rl47.5236 civil office of emolument. he is deemid to ha;e vacated the first
office. State -\I. Brinkerhof f , B. Centeno v. Inselmann, 519
S.W.2d 889 (Tex. Civ. App. - San Antonio 1975, no writ). Thus, by
4309 N. fenlh. Suit0 S
accepting and qualifying for the offlce of county auditor, the
McAllen. TX. 76501*1665
5W662.4547 individual in question effectively resigned his office as municipal
judge.
200 Main Plaza. sui1e 400 His attempt to refuse the compensation of the municipal judge
San Antonio. TX. 762052797
does not enable him to continue to hold the office. The compensation
5121225.4191
attached to a judge’s office is an incident to his title to office.
Markwell v. Galveston County. 186 S.W.2d 273 (Tex. Civ. App. -
Galveston 1945, &It ref’d). A public officer or employee cannot make
a valid agreement to accept less compensation than the amount fixed by
law. McGuire v. City of Dallas. 170 S.W.Zd 722 (Tex. 1943); Horriso;
v. City of Port-Worth.
-- 155 S.W.2d 908 (Tex. 1941). But see V.T.C.S.
art. 3912m. 1311 cannot estop himself from collecting the full
compensation by agreeing to accept less or actually accepting less,
Id.; Broom v. Qler County Commissioners Court, 560 S.W.2d 435 (Tex,
Civ. App. - Beaumont 1977, no writ). This rule applies to officer1
vhose compeasatf,Dn is fixed by statute and those whose compensation LI
p. 1520
Rooorable Jesusr Sancber-Vera - Pago 2 (m-333)
.
fixed by a governmental bo’iy pursuant to statutory authority. see,
w, Morrison v. City of l>rt Worth, mr (firemen’s compensation
estsblished by state mlnimw wage provision); Broom v. Tyler County
Comissioners Court, -, (J.P.‘s salary fixed by commissioners
court pursuant to article 3’912k, V.T.C.S.); Pannin County v. Dobbs,
202 S.W.2d 950 (Ten. Cir. App, - Texerkana 1947, no writ) (county
clerk’s salary fixed by cosdssioners court pursuant to articles 3883,
3891, 3899, 3912e. V.T.C.S.:,,,
The governing body of ‘the city sets the municipal judge’s salary.
V.T.C.S. art. 1010; ---see alno V.T.C.S. art. 1199a (compensation of
substitute judge). The municipal judge has no power to waive that
salary. He holds an office of emolument whether or not he accepts the
compensation attached to the office.
SUMMARY
A municipal ;\udge holds a civil office of
emolument even though he refuses to accept the
compensation attsched to his office. Article XVI.
section 40 of the Texas Constitution prohibits a
municipal judge who qualifies for the position of
county auditor :from continuing to serve as
municipal judge.
Attorney General of Texas
TOMGRBRN
First Assistant Attorney G~%neral
DAVID R. RICHARDS
Executive Assistant Attorney General
ROBERTGRAY
Special Assistant Attorney General
RICX GILPIR
Chairman, Oplnlon Committee
Prepared by Susan L. Garrison
Assistant Attorney General
p. 1521