    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
