Untitled Texas Attorney General Opinion: KP-0462 ( 2024 )

April 16, 2024
The Honorable Franklin McDonough
31st Judicial District Attorney
Post Office Box 1592
Pampa, Texas 79066
Opinion No. KP-0462
Re: Whether a constable may simultaneously serve as a municipal court judge
(RQ-0517-KP)
Dear Mr. McDonough:
You ask whether a constable may simultaneously serve as a municipal court judge in the
same county in light of Texas Constitution article XVI, section 40, the common-law doctrine of
incompatibility, and the Texas Code of Judicial Conduct. 1 In describing the issue pending in Gray
County, you tell us that the Precinct 2 constable “is currently sitting” as a municipal court judge
“while simultaneously fulfilling his duties” as the elected constable. Request Letter at 1. You
inform us that the constable, after re-election to his third term, subsequently took “the appointed
position” of municipal court judge of the City of Lefors, a municipality in Gray County. Id. You
ask whether the constable may hold both positions and, if not, whether the constable position is
vacated. Id. You also ask whether the constable would be disqualified from becoming a candidate
in an election for a non-judicial office without first resigning from the municipal court bench. Id.
Texas Constitution article XVI, section 40 prohibits a compensated municipal judge
from simultaneously serving as a constable.
We begin with the Texas Constitution. Article XVI, section 40 provides that “[n]o 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. App.—Beaumont 1966, writ ref’d n.r.e.). “[E]molument”
under this provision means a “pecuniary profit, gain, or advantage[.]” Tex. Att’y Gen. Op. No.
GA-0132 (2003) at 1 (quoting Irwin v. State, 177 S.W.2d 970, 973 (Tex. Crim. App. 1944)).
A compensated municipal judge holds a public office of emolument. Tex. Att’y Gen. Op.
1
See Letter from Honorable Franklin McDonough, 31st Judicial Dist. Att’y, to Off. of the Att’y Gen. at 1
(Oct. 17, 2023), https://www.texasattorneygeneral.gov/sites/default/files/request-files/request/2023/ RQ0517KP.pdf
(“Request Letter”).
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Nos. GA-0841 (2011) at 2, GA-0199 (2004) at 2; see also Purcell v. Carrillo, 349 S.W.2d 263,
263 (Tex. App.—San Antonio 1961, no writ) (stating, without analysis, that the “office of City
Judge of Alice . . . is a civil office of emolument”). Accordingly, a “compensated part-time
municipal court judge is therefore prohibited by article XVI, section 40 from holding any other
office of emolument.” Tex. Att’y Gen. Op. No. GA-0841 (2011) at 2. Similarly, a constable holds
a public office of emolument under article XVI, section 40. Tex. Att’y Gen. Op. No. KP-0122
(2016) at 1; see also TEX. CONST. arts. V, § 18 (establishing office of constable), XVI, § 61(b)
(mandating that constables be paid on a salary basis). Thus, article XVI, section 40, prohibits an
individual from simultaneously serving as a compensated municipal judge and a constable.
You do not in your letter provide any information about the compensation for the position
of municipal judge. 2 See Request Letter at 1. In the event the position of municipal judge here is
uncompensated, article XVI, section 40 does not bar the dual service and we must consider other
law. See Tex. Att’y Gen. Op. No. GA-0199 (2004) at 2 (stating that an uncompensated temporary
municipal judge does not hold an office of emolument).
The State Commission on Judicial Conduct condemns the practice of a judicial officer
also serving as a law enforcement officer.
The State Commission on Judicial Conduct (“Commission”) condemns the practice of a
judge serving as a law enforcement officer. The Commission is responsible, in the first instance,
for applying the judicial canons to specific conduct by a judge and is authorized to investigate
allegations of judicial misconduct and to discipline judges. See TEX. CONST. art. V, § 1-a(2), (6),
(8); TEX. GOV’T CODE §§ 33.002(a-1) (authorizing judicial discipline), 33.022 (authorizing
investigations); see also TEX. CODE JUD. CONDUCT, Canons 1–8, reprinted in TEX. GOV’T CODE,
tit. 2, subtit. G, app. B.
With certain exceptions, a municipal judge is required to comply with the Code of Judicial
Conduct. See TEX. CODE JUD. CONDUCT, Canon 6C(1) (excepting municipal court judges from
Canons 3B(8), 4D(2), 4D(3), 4E, 4H, 4F, 4G, 5(3)). Judges, including municipal court judges,
“shall comply with the law and should act at all times in a manner that promotes public confidence
in the integrity and impartiality of the judiciary.” Id. Canon 2A. Additionally, a judge’s judicial
duties “take precedence over all the judge’s other activities,” and a judge shall conduct all “extra-
judicial activities so that they do not . . . cast reasonable doubt on the judge’s capacity to act
impartially as a judge[.]” Id. Canons 3A, 4A. A judge is also prohibited from receiving
compensation and expenses for extra-judicial activities where the source of the payments “give[s]
the appearance of influencing the judge’s performance of judicial duties or otherwise give[s] the
appearance of impropriety.” Id. Canon 4I(1).
2
See LEFORS, TEX., CODE OF ORDINANCES ch. 1, § 1.02.003(d) (1981) (providing how the municipal judge’s
salary, if any, is determined).
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The Commission issued a Public Statement condemning the practice of a judicial officer
concurrently serving as a law enforcement officer. See STATE COMM’N ON JUDICIAL CONDUCT,
PUBLIC STATEMENT No. PS-2000-1 (Mar. 24, 2000). 3 The Commission observed that “by
attempting to fulfill the requirements of both offices, a judge severely compromises the
impartiality and independence of the judicial office.” Id. Recognizing the separation-of-powers
implications of such concurrent service, the Commission stated that
[j]udges are members of the judicial branch of our government. Law
enforcement officers are part of the executive branch. Each branch
is separate from, but co-equal with, the other. Therefore, the
Commission concludes that any judge who attempts to serve both
branches cannot accomplish the task without impairing the
effectiveness of one or both positions.
Id. The Commission concluded that “anyone who tries to serve the public as both judge and law
enforcement irrevocably undermines the public’s confidence in an impartial and independent
judiciary.” Id. While this office cannot determine as a matter of law whether the municipal judge
has violated any of the judicial canons and must leave that question to the Commission, it is likely
that the judicial canons prohibit a municipal judge from also serving as a constable. Tex. Att’y
Gen. Op. No. GA-0551 (2007) at 4; see TEX. CODE JUD. CONDUCT, Canons 2A, 4A(1), 4D(1).
Accordingly, we cannot conclude that the dual service you describe is permissible.
The common-law doctrine of conflicting-loyalties incompatibility prohibits a
constable from simultaneously serving as a municipal judge.
The dual service you describe also implicates the common-law doctrine of incompatibility,
which prohibits the simultaneous holding of two positions in certain instances. See State ex rel.
Hill v. Pirtle, 887 S.W.2d 921, 930 (Tex. Crim. App. 1994) (providing that “[u]nder the common
law, one person cannot simultaneously hold two incompatible offices”). Unlike with article XVI,
section 40, the municipal judge’s compensation is not dispositive to the applicability of the
common-law doctrine of incompatibility. Cf. TEX. CONST. art. XVI, § 40 (prohibiting a person
from holding or exercising at the same time “more than one civil office of emolument” (emphasis
added)). The doctrine has three aspects: self-appointment, self-employment, and conflicting
loyalties. See Tex. Att’y Gen. Op. No. KP-0119 (2016) at 2. As neither position here appoints or
employs the other, your question implicates the conflicting-loyalties aspect. See Tex. Att’y Gen.
Op. No. GA-0786 (2010) at 2. Conflicting-loyalties incompatibility “prohibits an individual from
simultaneously holding two positions that would prevent him or her from exercising independent
and disinterested judgment in either or both positions.” Tex. Att’y Gen. Op. No. GA-1069 (2004)
at 2. This aspect does not apply unless each position constitutes an office. See Tex. Att’y Gen. Op.
No. KP-0122 (2016) at 1. As we previously recognized, a municipal judge and a constable are both
officers. See supra at 1–2.
3
Available at www.scjc.texas.gov (under “Public Information” heading); see also TEX. CONST. art. V, § 1-
a(10) (authorizing the Commission to issue a public statement during proceedings against a judge under certain
circumstances when the Commission determines that the best interests of the public will be served).
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Conflicting-loyalties incompatibility was first addressed in Thomas v. Abernathy County
Line Independent School District, where the Texas Commission of Appeals held the offices of
school trustee and city alderman incompatible because the relationship between the two offices
created the potential for conflict. 290 S.W. 152, 153 (Tex. Comm’n App. 1927, judgm’t adopted).
So, we consider the potential conflict between the duties of the respective offices while being
mindful of the Commission’s separation-of-powers concern about a judicial officer simultaneously
serving in a law enforcement capacity.
A constable is a constitutional officer to whom the Legislature has given the responsibility
to “attend each justice court” in the precinct and to “execute and return . . . each process, warrant,
and precept that is directed to the constable . . . .” TEX. LOC. GOV’T CODE § 86.021(a), (e); see also
TEX. CONST. art. V, § 18(a) (dividing counties into precincts and requiring the election of a
constable from each).
A constable is also a “peace officer” with a general duty to “preserve the peace.” TEX.
CODE CRIM. PROC. arts. 2.12(2), .13(a). Generally, as a peace officer, a constable may also
“interfere without warrant to prevent or suppress crime,” “execute all lawful process issued to the
officer by any magistrate or court,” “give notice to some magistrate of all offenses committed
within the officer’s jurisdiction,” and “arrest offenders without warrant” so the offender may be
“taken before the proper magistrate or court and be tried.” Id. art. 2.13(b). And there are specific
instances in statute providing that a peace officer must appear before a magistrate. See, e.g., TEX.
HEALTH & SAFETY CODE § 821.022(a). The judge of a municipal court of an incorporated city or
town is a magistrate. TEX. CODE CRIM. PROC. art. 2.09.
Aside from the Health and Safety Code provision cited above, we can think of other
examples where a constable, as a peace officer, has general duties that may require him to appear
before the municipal judge as a magistrate. Though remote, that possibility by itself renders the
two positions incompatible as one person cannot appear before himself. Further, the possibility of
a constable acting as a municipal judge generally illustrates the concerns raised in the
Commission’s Public Statement about a judicial officer serving in a law enforcement role as well
as the judicial concern for potential conflict in Thomas v. Abernathy County Line Independent
School District. STATE COMM’N ON JUDICIAL CONDUCT, PUBLIC STATEMENT No. PS-2000-1 (Mar.
24, 2000); Thomas, 290 S.W. at 153 (expressing concern that a person holding two offices could
use one office to impose its policies on the other or subject it to control in some other way).
Accordingly, a court would likely conclude that a municipal judge may not simultaneously serve
as a constable.
Consequences of the prohibited dual service.
You also ask about the consequences of one person holding two incompatible offices.
Request Letter at 1. You first ask whether the constable’s position would be “considered
vacated[.]” Id. It has long been established that when an officer accepts and qualifies for an
incompatible office, he or she is deemed to have vacated the first office. See Pirtle, 887 S.W.2d at
930 (“Under the common law, one person cannot simultaneously hold two incompatible offices,
and the general rule is that the acceptance and qualification for a second office incompatible with
the first office is an implied resignation of the first office.”); Tex. Att’y Gen. Op. (To Hon. R.W.
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Finley, Dec. 17, 1896), 1897–1898 Tex. Att’y Gen. Biennial Rep. 69, 72 (“[T]he acceptance of
the second office is a resignation of the former[.]”). Further, at least one court has determined that
this common-law rule is codified in section 201.025 of the Election Code. See City of Forrest Hill
v. Benson, 555 S.W.3d 284, 290 (Tex. App.—Fort Worth 2018, no pet.) (“If an officer accepts
another office and the two offices may not lawfully be held simultaneously, a vacancy in the first
office occurs on the date the person qualifies for the other office.”). In sum, when the individual
accepted the incompatible office of municipal judge he effectively resigned from the office of
constable.
The judicial canons do not require the municipal judge in question to resign his
municipal judicial office to become a candidate for a non-judicial office.
You also ask whether a constable would be disqualified from becoming a candidate in an
election for a non-judicial office unless he first resigns the municipal court bench. Request Letter
at 1. Although you ask whether the constable would be disqualified, given our conclusion about
the effective resignation of that office upon acceptance and qualification of the office of municipal
judge, we instead consider your question from the perspective of the individual, as municipal court
judge.
The constitutional resign-to-run provision in article XVI, section 65 generally provides for
the automatic resignation of a person who becomes a candidate for another elected office in certain
circumstances. TEX. CONST. art. XVI, § 65. Article XVI, section 65 does not expressly apply to
municipal judges. See id. § 65(a). A municipal judge whose term is longer than two years, however,
is subject to the resign-to-run provision under article XI, section 11. See id. art. XI, § 11(a)
(providing that municipal officers, elective or appointive, are subject to subsection 65(b), article
XVI, when office’s tenure is longer than two years). That said, the precise language of your
question suggests that you are not asking about the constitutional resign-to-run provision but are
instead asking about Canon 5(3) of the Code of Judicial Conduct. See Request Letter at 1 (asking
whether the individual would “be disqualified from becoming a candidate in an election for a non-
judicial office”).
Canon 5(3) states that
[a] judge shall resign from judicial office upon becoming a
candidate in a contested election for a non-judicial office either in a
primary or in a general or in a special election. A judge may continue
to hold judicial office while being a candidate for election to or
serving as a delegate in a state constitutional convention or while
being a candidate for election to any judicial office.
TEX. CODE JUD. CONDUCT, Canon 5(3). Canon 6C expressly exempts municipal judges from
complying with Canon 5(3). Id. Canon 6C(1)(e) (providing that a municipal judge “is not required
to comply: . . . (e) with Canon 5(3)”). Given this clear language, Canon 5(3) does not require the
municipal judge in question to resign as municipal judge to become a candidate for a non-judicial
office.
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S U M M A R Y
Texas Constitution, article XVI, section 40, prohibits one
person from holding more than one office of emolument at the same
time. An individual may not simultaneously serve as a compensated
municipal judge and a constable.
While it is for the State Commission on Judicial Conduct to
discipline judges, certain canons of the State Code of Judicial
Conduct likely prevent a municipal judge from simultaneously
holding a position as a law enforcement officer. In particular, the
State Commission on Judicial Conduct has issued a public statement
condemning the practice of a judicial officer concurrently serving as
a law enforcement officer due to separation-of-powers concerns.
The common-law doctrine of incompatibility prohibits the
simultaneous holding of two offices with conflicting loyalties. As a
peace officer, the constable’s duties could require the constable to
appear before the municipal judge as magistrate, rendering the two
positions incompatible. Moreover, such concurrent service
implicates the concerns raised by the State Commission on Judicial
Conduct. Accordingly, a court would likely conclude that a
municipal judge may not simultaneously serve as a constable.
Under either article XVI, section 40, or common-law
incompatibility, acceptance of a second office incompatible with the
first office results in effective resignation from the first office. Thus,
when the individual at issue accepted the incompatible office of
municipal judge he effectively resigned from the office of constable.
A municipal judge is not required to comply with the
provision in Canon 5(3) of the State Code of Judicial Conduct
calling for a judge to resign from judicial office before becoming a
candidate in a contested election for a non-judicial office.
Very truly yours,
KEN PAXTON
Attorney General of Texas
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BRENT WEBSTER
First Assistant Attorney General
LESLEY FRENCH
Chief of Staff
D. FORREST BRUMBAUGH
Deputy Attorney General for Legal Counsel
AUSTIN KINGHORN
Chair, Opinion Committee
CHARLOTTE M. HARPER
Assistant Attorney General, Opinion Committee