.   *     .




                                      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




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