Untitled Texas Attorney General Opinion ( 2000 )


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  •     OFFICE OF THE ATTORNEY   GENERAL.   STATE OF TEXAS
    JOHN     CORNYN
    May 4,200O
    The Honorable Richard J. Miller                          Opinion No. JC-0216
    Bell County Attorney
    P.O. Box 1127                                            Re: Whether an elected junior college trustee
    Belton, Texas 765 13                                     may simultaneously serve as a municipal judge
    (RQ-0171-K)
    Dear Mr. Miller:
    You have requested our opinion as to whether a junior college trustee may simultaneously
    serve as a municipal judge. For the reasons set forth below, we conclude that he may.
    You explain that an elected trustee of Central Texas College was recently appointed by the
    City of Killeen to the position of municipal judge. We first note that article XVI, section 40 of the
    Texas Constitution is not applicable to the situation you pose, because it prohibits only the holding
    of more than one “offtce of emolument.” See TEX. CONST. art. XVI, $40. Central Texas College
    is a component institution of the Central Texas College District, a junior college district as defined
    in the Education Code. See TEX. EDUC. CODE ANN. 5 130.061 (Vernon 1991); 
    id. $5 130.082,
     130.171 (Vernon Supp. 2000). Members of the board of a junior college district are required to
    serve without “any remuneration or emolument of office.” 
    Id. 5 130.082(d).
    Thus, a trustee of a
    junior college district does not hold an “office of emolument,” and is consequently not prohibited
    by article XVI, section 40 from holding another office at the same time.
    You ask whether the “separation of powers” doctrine of article II, section 1 of the Texas
    Constitution would bar the junior college trustee from simultaneously serving as municipal judge.
    See TEX. CONST. art. II, 5 1. In the 197Os, a number of attorney general opinions held that article II,
    section 1 posed an obstacle to dual office holding. See, e.g., Tex. Att’y Gen. LA-106 (1975)
    (teacher, being of the executive branch, was precluded from serving as justice of the peace, an office
    under the judicial branch). This view of article II, section 1 has been abandoned, particularly at the
    local level. See Tex. Att’y Gen. Op. No. IM-5 19 (1986) at 4; Tex. Att’y Gen. LO-92-004, at 1; Tex.
    Att’y Gen. LO-88-19. It is now clear that, in the usual circumstance, the separation of powers
    doctrine does not constitute an impediment to dual office holding.
    You also ask whether the common-law doctrine of incompatibility would prohibit the
    simultaneous holding of the offices ofjunior college trustee and municipal judge. This aspect of
    incompatibility-denominated   “conflicting loyalties”- was first recognizedin Thomas v. Abernathy
    County Line Independent School District, 
    290 S.W. 152
    (Tex. Comm’n App. 1927, judgm’t
    The Honorable Richard J. Miller - Page 2           (JC-0216)
    adopted), in which the court held that the offices of school trustee and city alderman were
    incompatible. In Attorney General Letter Opinion 98-094, this office held that a district judge was
    barred from simultaneously serving as a trustee of an independent school district. See Tex. Att’y
    Gen. LO-98-094, at 3. The opinion relied in part on Attorney General Letter Opinion 95-029, which
    had determined that a county attorney was prohibited by “conflicting loyalties” from serving as a
    member of a school district board oftrustees. See Tex. Att’y Gen. LO-95-029, at 3. Letter Opinion
    95-029 found that, since a county attorney “is constitutionally      and statutorily vested with the
    authority to investigate matters and institute proceedings regarding the possible criminal conduct of
    school district officers,” his service on the board of trustees would be legally incompatible. 
    Id. at 4.
    Letter Opinion 98-094, in applying the same reasoning to the situation of a trustee and a district
    judge, concluded that “[i]t would be anomalous indeed ifthe prosecuting, but not the adjudicating,
    official were precluded from performing such dual service.” Tex. Att’y Gen. LO-98-094, at 3.
    Letter Opinion 98-094 reached its conclusion in part by distinguishing its facts from those
    before the court in Turner v. TrinityIndependent SchoolDistrict, 
    700 S.W.2d 1
    (Tex. App.-Houston
    [14th Dist.] 1983, no writ). In that case, the court held that a school trustee was not prohibited by
    common-law incompatibility from simultaneously holding the office ofjustice of the peace. The
    court found that “[a] justice of the peace has limited jurisdiction.    If a case involving the Board
    should happen to come before [him] in his capacity as justice of the peace, he could simply recuse
    himselfunder [article 2378 ofthe Revised Civil Statutes].” 
    Turner, 700 S.W.2d at 2
    . Letter Opinion
    98-094 pointed out that the quoted language in Turner is dicta, and, in any event, that a district court,
    unlike a justice court, is not one of “limited jurisdiction.” See Tex. Att’y Gen. LO-98-094, at 2.
    In our opinion, this language cannot precisely be said to be dicta. It is true that the court
    based its ultimate conclusion on the “state employee” proviso of article XVI, section 40. See 
    Turner, 700 S.W.2d at 2
    . Nevertheless, the court declared: “We therefore find the simultaneous holding of
    the offices of Justice of the Peace and school board trustee by one person does not violate the
    common-law rule of incompatibility.”      
    Id. Like a
    justice court, a municipal court is one of limited jurisdictipn. Indeed, its jurisdiction
    is more limited than that of a justice court. Compare TEX. GOV’T CODE ANN. 5 29.003 (Vernon
    Supp. 2000), and TEX. CODE GRIM. PROC. ANN. art. 4.14 (Vernon Supp. 2000), with TEX. GOV’T
    CODE ANN. 5 27.031 (Vernon Supp. 2000), and TEX. CODE GRIM. PROC. ANN. art. 4.11 (Vernon
    Supp. 2000). On the basis of Turner, it is our opinion that a junior college trustee is not barred by
    the common-law doctrine of incompatibility from simultaneously serving as a municipal judge.
    Finally, it is necessary to address the determination of Attorney General Opinion JM-213
    (1984), that the Code of Judicial Conduct prohibits most judges from accepting “extra-judicial
    appointments.”    Canon 4H thereof provides:
    A judge should not accept appointment to a governmental
    committee, commission, or other position that is concerned with
    issues of fact or policy on matters other than the improvement of the
    The Honorable   Richard J. Miller - Page 3      (X-0216)
    law, the legal system, or the administration of justice.  A judge,
    however, may represent his or her country, state, or locality on
    ceremonial occasions or in connection with historical, educational,
    and cultural activities.
    TEX. CODE JUD. CONDUCT,       Canon 4H reprinted in TEX. GOV’T CODE ANN., tit. 2, subtit. G app. B
    (Vernon 1998). Canon 4H is not applicable to these circumstances, because the position ofjunior
    college trustee is elective rather than appointive. Furthermore, Canon 6C of the Code of Judicial
    Conduct provides that a justice of the peace or municipal court judge “is not required to comply”
    with certain provisions ofthe Code, including Canon 4H. 
    Id. Canon 6C
    (l)(b) (Vernon Supp. 2000).
    Since municipal judges are clearly excluded from Canon 4H, it is not applicable to the situation you
    pose.
    The Honorable Richard J. Miller - Page 4        (JC-0216)
    SUMMARY
    An elected trustee of Central Texas College is not prohibited
    by article XVI, section 40, or article II, section 1 of the Texas
    Constitution, or by the common-law doctrine ofincompatibility    from
    simultaneously serving as a municipal judge for the City of Killeen.
    Attorney General of Texas
    ANDY TAYLOR
    First Assistant Attorney General
    CLARK KENT ERVIN
    Deputy Attorney General - General Counsel
    ELIZABETH ROBINSON
    Chair, Opinion Committee
    Rick Gilpin
    Assistant Attorney General - Opinion Committee
    

Document Info

Docket Number: JC-216

Judges: John Cornyn

Filed Date: 7/2/2000

Precedential Status: Precedential

Modified Date: 2/18/2017