                                             The Attorney                   General of Texas
                                                                  Oczober     23,   1984
JIM MATTOX
                                                                                                  Clarification of LA-23
Attorney General


Supreme      Court    Building             Honorable James S. HcGrath                            Opinion     No.    JM-213
P. 0. Box 12548                            Criminal District Attorney
Austin.    TX. 78711. 2540                 Jefferson County                                      Re: Whether one person may serve
512/475~2501                               P. 0. Box 2553                                        simultaneously      as county   court
Telex    9101874-1387
                                           Beaumont, Texas   77704                               at law judge      and trustee   of an
Tefecopier      5121475.0266
                                                                                                 independent    school  district

714 Jackson.        sum      700           Dear Mr. McGrath:
Dallas.   TX.     75202.4506
2141742.8944
                                                 You state   thiu: a trustee              of a local independent          school     district
                                           was recently    appointed   judge             of a county   court  at        law in      Jefferson
4824 Alberta          Ave., Suite    160   County.   You ask:
El Paso. TX.          799052793
915153x3484                                                 May il person  serve both as a county   court   at
                                                         law judf,e and as a member of the board of trustees
 001   Texas.         Suite   700
                                                         of an kiependent   school district?
HOUS,O~.        TX.     77002.3111
7131223~5886                                       This office     ks generally    applied three tests               to answer      questions
                                           about    dual office     t,olding.   These are as follows:
806 Broadway.            Suite 312
                                                              1.    Ilcses one    person   hold   two  offices                 in
LUbbOCk.     TX.        79401.3479
8061747~5238                                             different,      branches  of government   in violation                of
                                                         article      II, section   1 of the Texas Constitution?

 4309 N. Tenth,     slnte B
                                                            2.  Ilcbes one person hold two                 civil    offices    of
 McAllen.     TX. 78501.1685
 5121882-4547
                                                         emolument: in violation     of article              XVI.   section    40
                                                         of the ::cxas Constitution?

 200 Main Plaza. Suite Gil                                   3.     Does     one   person    hold       two offices   with
 San Antonio.   TX. ?8205-2797
                                                         conflicl::.ng      duties   in violation        of the common law
 512/2254191
                                                         doctrine!     of   incompatibility?

                                           In addition           to    t:wse    general       restrictions’,     certain     constitutional
                                           provisions        prohib:ll:    specific     officers      from holding    other public       office
                                           or employment.             See Tex. Const.
                                                                     ---                       art.    III,  §%18, 19 (legislators            and
                                           other       elected      officials);        art.     IV,    §6 (governor);       art.    XVI,      512
                                           (federal,        foreign,      or sister      state officers).        Yone of these apply to
                                           the offices          you inquire         about.       Statutory    prohibitions       against      the
                                           holding       of two of~%ces may also apply in particular                    cases.     See, e.g.,
                                           Educ.        Code      §11.,:12(b);      Attorney        General    Opinion      i-W-479      (1982)
                                            (eligibility        for wmbership         on State Board of Education).



                                                                                    p.     956
                                                                                                              q
Honorable   James S. McGrath -’ Page 2                   (JM-213)




     We will    deal with          art:kle        XVI, section   40 first,    because               it   is
the most easily    applied         test of       the three.    It states   as follows:

            theSe;m;Okim+erson                         shall      hold or exercise             at
                                      , more         than      one civil          office       of
            emolument,          except-that            of Justice          of the Peace,
            Countv Commissioner.                 Notary      Public and Postmaster.
            Offi&        of the National                 Guard,       [other      exceptions
            for     certain          military           officers]        . . .       and     the
            officers          and       directors             of      soil       and      water
            conservation           distl::.cts.        unless otherwise            specially
            provided        herein.          Provided,          that    nothing       in this
            Constitution            shall       be construed             to prohibit           an
            officer       or enlist,,d            man of the National                   Guard,
             [other      exceptions             for      military          officers]         and
            officers        of the State soil                and water conservation
            districts,         from ho::ding at the same time any other
            office      or position              of honor,            trust      or profit,
            under this           State      or the t’nited              States,       or from
            voting       at       any      election,           general,         special        or
            primary       in this          State       when otherwise             qualified.
            State     employees          or’ other         1ndividual.s         who receive
            all or part of tt,eir                  compensation          either      directly
            or indirectly            from funds of the State of Texas and
            who are not State                 officers,           shall     not be barred
             from serving          as m8rmbers of the governing                    bodies      of
             school     districts,           cities,         towns,       or other        local
             governmental           districts;            provided,         however,        that
             such State          emplopzes           or other         individuals         shall
             receive     no salar),          for serving            as members of such
             governing        bodies.          It is further             provided       that a
             nonelective             Stat3          officer          may       hold       other
             nonelective         offices        under the State or the United
             States,      if the o::her office                   is of benefit           to the
             State     of Texas or is required                         by the State            or
             Federal       law, and there                is no conflict              with     the
             original        office        Ear which he receives                   salary      or
             compensation.              No member of the Legislature                           of
             this State may ?;;?Ld any other office                             or position
             of profit        under &is            State,       or the United States,
             except     as a no&y                 public       if -qualified          by law.
              (Emphasis added).-

 No compensation  attaches    to the office    of school   trustee.    See Educ.
 Code 523.19(e);  Attorney     General  Opinion   WW-246 (1957).     TK,    this
 office is not an office   of emolument, and article      XVI, section   40 does
 not bar a school  trustee   from holding   a second office.




                                                   p.   957

                                                                                                              .
Honorable    James S. McGrath -’ Page 3             (JM-213)




      Article   II, section    1 oE the Texas Constitution     provides             for   the
separation    of powers.    This provision  states as follows:

             The powers of the Government of the State of Texas
             shall be divided       into three distinct           departments,
             each of which sha:.:. be confided           to a separate     body
             of    magistracy,        to    wit:        Those      which     are
             Legislative     to one,     those which are Executive             to
             another,    and thos,! which are Judicial             to another;
             and no person,      or collection        of persons,     being of
             one of these departments,          shall    exercise    any power
             properly    attached     to either    of the others,        except
             in the instances      Iu:rein expressly       permitted.

       Article    II.  section     1 is more difficult          to apply      than article
XVI, section     40.   In Attorno:f      General Opinions      H-6 and H-7 (1973)       this
office    construed   article     II,   section    1 to prohibit       a person who held
office     in one department          of government      from holding       an office      or
employment in another         branc:t. of government.         Letter    Advisory    No. 137
(1977).     however.   held    article     II,  section     1 inapplicable        to publ,ic
employment and thus overruled            the earlier    opinions     in part.

        Attorney    General Opinion H-6 cited but did not discuss                 cases from
other      states     construing        constitutional       provisions     comparable      to
article     II, section      1.    See State v. Burch, 80 N.E.2d 294 (Ind.              1948)
(legislator       may not        perfo&     “functions”      of   another    department     of
government);       Saint v. Aller:,        126 So. 548 (La. 1930) (legislators             may
not “exercise        power” of another          department     by serving    as employee);
Monaghan v. School            District     No. 1, Clackamas County,           315 P.2d 797
(Ore.      1957)    (legislator        &y     not    perform    “functions”     of    another
department).        Nor did the o!,:lnion analyze          the reasoning    of these cases
or explain        why they       should    control     the interpretation       of a Texas
constitutional        provision.

       Texas case law on this           subject  is meager indeed.         The court       in
Ruiz v. State,       540 S.W.2d 809 (Tex. Civ. App. - Corpus Christi                   1976,
no writ),      following    the lead       of this   office,      treated    article     11,
section     1 as an impediment           to dual office      holding.       It did not,
however,     adopt in all     respects      the interpretation       of this     provision
given    in    Attorney    General       Opinion   H-6     and    subsequent      advisory
documents.      See Letter    Advis,,ry    Nos. 137 (1977);      106 (1975).      Ex parte
Dailey,    ‘+46 S.W. 91 (Tex.         Crim. App. 1922)        Includes    the following
dictum:

             If a district         jr?ge    holding   a commission      as an
             officer     in the National        Guard was directed     by the
             Governor      to call     out his company, or if he should
             find     it     necess;*::y    to    do   so    upon   his    own
             3nitiative.        it
                               --   might    be  that   judicial   authoritv




                                         p.   958
Honorable       James S. McCrath           - Page 4         (JM-213)




                and executive     aurhority  would be lodged    in the
                same Individual.      Then a different question    would
                arise.   That conl::.ngency  is not presented    in the
                case before   ua.   (Emphasis added).

246 S.W. at 93.                See als!   Attorney   General                Opinion O-1561  (1939)
(relying    on article           II, swtion     1 and article                XVI, $33 to bar dual
office   holding).

        Attorney     General     Opin.lons H-6 and H-7 did not construe                    article
II. section       1 in the context         of the entire       constitution.        See Gragg v.
Cayuga Independent          School District,         539 S.W.2d 861 (Tex. 1976).            appeal
dismissed,      429 U.S. 973 (1976);erson                 V. State.      177 S.W.2d 975 (Tex.
Crim. App. 1944).           Thus, thwe         opinions     overlooked     the differences         In
language     between article          I::, section      1, which refers        to the exercise
of power, and provisions            like sections        12 and 40 of article          XVI, vhjch
explicitly      bar dual office            holding.      Nor did the opinions            consider
whether      the terms        of   article      II,    section       1 might be defined            by
reference        to    the     constj tutional         provisions        which     entrust       the
legislative,        executive,     ant, judicial       power of the state         to identified
officers     and offices.        -See    Tex.  Const.    art.   ‘
                                                                III,   51;   art.   IV, Sl; art.
v, Il.

        Finally.       Attorney     Genc:l,al Opinions              H-6 and H-7 did not consider
whether      the language         of article           II,     section      1 might be construed             as
applying      only to state         lewl        offices      , and not to offices           of political
subdivisions.             Courts       of      other         states       have     construed         similar
provisions       as prohibitiug          dual office           holding      on the state       level    onlv.
See Peterson         vi Culpeppe;,          79 S.W. 783 (Ark.-1904);                State V. Tovnsend,
79 S.W. 782 (Ark. 1904).                  l’ke application            of article      II,   section       1 to
offices     of political         subdiv:.sions           requires       the classification           of each
such office        as legislative,            judicial        or executive.          All local       offices
cannot be so neatly            categorized.             For example.         Letter Advisory         No. 112
(1975)     characterized         city     tcuncils         as legislative         bodies    because       they
exercise        legislative         powl s.           City        councils,       however,        are     also
responsible         for    enforcing         the laws and for hiring                  and firing          city
employees.         V.T.C.S.       arts.       1002,      1011,      1015.      Mayors of general            law
cities,      in some instances,                may also         be municipal        judges.        V.T.C.S.
art.    1197.       The mayors and city                councils        of general       law cities        have
held these diverse             powers since at least                   1875.     See Acts       1875. 14th
Leg. 2d Sess.,           ch. C., at 113.                The legisleture          which     enacted      these
statutes      did not believe           tt;zt article           II,   section     1 prevented        it from
allocating        legislative,         executive,           and judicial          powers     to a mayor.
Statutes      enacted near the time that the Constitution                            was adopted carry
great weight In construing                  the Constitution.               Hill County v. Sheppard,
178 S.W.2d 261 (Tex. 1944).                    See also Educ. Code 1523.25-23.31                     (powers
of school       trustees);       Acts l1105, 29th Leg.,                 ch. 124. 542. at 274; Acts
1879, 16th Leg.,           ch. LXVII. at 76.




                                                   p.   959
Honorable    James S. McGrath - Page 5               (JG213)




       You correctly    point auf, that Letter        Advisory    No. 23 (1973)     holds
tkat article     II.  section      j hars a school       trustee    from also    being     a
judge.     Since   many prohlen:i       of interpretations      surround   article     Il.
section    1 in its    characce:::lzation     as a bar to dual office           holding,
however,   we are reiuctant       rc rely upon It or upon Letter          Advisory     No.
2:) (1973) as dispositive      of your question.

       Neither     do we need      to address       here  whether      the  common law
doctrine    of incompatibility       contro1.s    in this   case.    since   we believe
there    is a statutory    bar I.c this particular         instance     of dual office
holding,       Article  V,    section     i-a(6)A      of  the    Texas    Constitution
provides    that any judge of a county court at law may be removed from
off ice for

             willful     or persistent      conduct.    which  is clearly
             inconsistent     with the proper        performance   of his
             said    duties   or :ssts     public    discredit   upon the
             judiciary     or administration      of justice.

The statute    implementjng      :hese    provisions      defines         the  prohibited
conduct  to include   willful.    violation      of a provision           of the Code of
Judicial  Conduct.    V.T.C.S.     art.    5966a.    §6E.    The        Code of Judicial
Conduct includes   the folloslng      provision:

             Extra-judicial        A]~‘ointments.        A judge   shouid     not
             accept      appointment      to a governmental         committee.
             ccmmis*iOn,       or ether      posiiion     that   is concerned
             with issues        of   F.act or policy       on matters      other
             than the improvement of the law, the legal                 system,
             or    the     adminis.:,raticn      of   justice.       A judge.
             however,       may represent        his    country,    state,      or
             locality      on ceremonial      occasions     or in connection
             with      historical,         educational,        and     cultural
             activities.

Canon 5 (G) .     We believe     this   provision. read together               with article
5466a.   bars    a county    coul’t   at law judge   from serving              as a school
trustee.

                                       SUMMARY

                 Article    XVI, r:r,ction 40 does not bar one person
             from serving       as c:ounty court   at law judge and s
             school    trustee    ia a dfstrict   in the ssme county.
             Article     5966a. s(zg:tion 6E, bars a county court at
             law judge from sc!rving as a school         trustee.    It Is
             unnecessary      to dz:idr   whether article     II, section




                                          p.   960
Honorable   James S. McCrath        -   Page 6     UN-2131




            1 of     the Texas    Coustitutlon     or the cornmoo law
            doctrine     of incompatibility    bars this case of dual
            office    holding.




                                                                   MATTOX
                                                        Attorney    General   of   Texas

TOM GREEN
First Assistant     Attorney     Genmal

DAVID R. RICHARDS
Executive Assistant      Attorney       Ceneral

RICK GILPIN
Chairman, Opinion     Comittee

Prepared    by Susan L. Garrisou
Assistant    Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpin.   Chairman
David Brooks
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton




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                                           p.     961
