                                 ATTORNEY GENERAL OF TEXAS
                                               GREG         ABBOTT



                                                    June lo,2004



The Honorable Joe F. Grubbs                                   Opinion No. GA-01 99
Ellis County and District Attorney
Temporary Administration Building                             Re: Whether a municipality’s finance director
1201 North Highway 77, Suite B                                may simultaneously      serve as a temporary
Waxahachie, Texas 75 165-5 140                                municipal judge in the same city (RQ-0 144-GA)


Dear Mr. Grubbs:

          You state that the City of Waxahachie’s full-time finance director has been named temporary
judge of the Waxahachie Municipal Court.’ You ask whether, in light of Texas Constitution article
XVI, section 40, the common-law doctrine of incompatibility, and the canons of judicial ethics, the
 city finance director may also serve in this position. See Request Letter, supra note 1, at 1.

         You state that a temporaryjudge serves when the regular municipal court judge is unavailable
or unable to serve, hearing cases in the Waxahachie Municipal Court and serving as magistrate’ for
the City of Waxahachie and for Ellis County. See id. The finance director is employed by and
reports to the city manager. See id. at 2; see also WAXAHACHIE, TEX., CITY CHARTER art. III,
$ 3.04(1).3 As finance director, he is responsible for working on the city budget and for projecting
revenue flow to the city. See Request Letter, supra note 1, at 2. He receives a salary as finance
director but does not receive extra compensation for serving as temporary municipal judge. See id.

         Government      Code section 29.002 creates a municipal court in each municipality.                   See TEX.
GOV’T CODE ANN. 9 29.002 (Vernon 2004); see also id. 9 29.003 @uisdiction of municipal court).
In a home-rule city like Waxahachie, see WAXAHACHIE, TEX., CITY CHARTER art. I, 9 1.02, the
municipality may provide by charter or ordinance for appointing one or more temporary judges to
serve if the regular municipal judge is unable to act. See TEX. GOV’T CODE ANN. 8 29.007(g)
(Vernon 2004).



          ‘See Letter fromHonorable Joe F. Grubbs, Ellis County and District Attorney, to Honorable Greg Abbott, Texas
Attorney General (Dec. 8, 2003) (on file with Opinion Committee, also available at http://www.oag.state.tx.us)
[hereinafter Request Letter].

          2The request letter states that the municipal judge “handles arraignments, ” Request Letter, supra note 1, at 1,
a term sometimes used to indicate that the judge serves as a magistrate. See Watson v. State, 762 S.W.2d 591,594 n.4
(Tex. Crim. App. 1988) (stating that an appearance before a magistrate under article 15.17, Code of Criminal Procedure,
“is not arraignment in Texas”). We read the request letter as referring to a municipal judge’s service as a magistrate.

         30nline Code of Ordinances available at http:liwww.waxahachie.com.
The Honorable Joe F. Grubbs      - Page 2        (GA-0199)




         We note that the Uniform Municipal Courts of Record Act (the “Act”), Government Code
chapter 30, provides that “[a] person may not serve as a municipal judge if the person is employed
by the same municipality. ” Id. § 30.00006(g). This provision applies to each municipality listed in
Government Code chapter 30, see id. 9 30.00001(b), but Waxahachie is not among the cities listed
in that chapter. See id. $5 30.00041-.01882 (subchapters B through XX). While the Act authorizes
a city to create a municipal court of record by ordinance, see id. 9 30.00003, Waxahachie has not
done so. The Waxahachie Charter provides for “the corporation court4 of the City of Waxahachie,
Texas,” WAXAHACHIE, TEX.,CITY CHARTER art. II, 5 2.09, but we find no ordinance creating a
municipal court of record under chapter 30. Thus, because the Waxahachie municipal court
was not created under chapter 30, the section 30.00006(g) prohibition against a city employee
serving as a municipal judge does not apply to a Waxahachie municipal judge.

          We turn to your question about Texas Constitution article XVI, section 40. This section
provides that “[n]o person shall hold or exercise at the same time, more than one civil office of
 emolument.”      TEX. CONST. art. XVI, 0 40. As the Texas Supreme Court observed in Aldine
Independent School District v. StandZey, 280 S.W.2d 578 (Tex. 1955), “the determining factor which
 distinguishes a public offker from an employee is whether any sovereign function of the government
 is conferred upon the individual to be exercised by him for the benefit of the public largely
independent of the control of others. ” Aldine, 280 S.W.2d at 583. Because the Waxahachie finance
 director is appointed by and accountable to the city manager, he is a city employee. A municipal
judge is an officer. See French v. State, 572 S.W.2d 934,938-39 (Tex. Crim. App. 1978); Thompson
v. City ofAustin, 979 S.W.2d 676,682 (Tex. App.-Austin 1998, no pet.). However, in this case, the
temporary municipal judge receives no compensation and thus does not hold a civil office of
 emolument.     Article XVI, section 40 does not prohibit the city finance director from serving as
temporary municipal judge.

         We next address the common-law doctrine of incompatibility,.which       has three aspects: self-
appointment; self-employment;        and conflicting loyalties. See Tex. Att’y Gen. Op. No. GA-0127
(2003) at 2. All officers authorized to appoint someone to another office are disqualified from the
offrce over which they hold the appointive power. See Ehlinger v. Clark, 8 S.W.2d 666,674 (Tex.
1928). Self-appointment       does not apply in this case because the city manager appoints the finance
director, and the city council appoints municipal judges. See WAXAHACHIE, TEX.,CITY CHARTER
art. I, $2.09(b), art. III, $3.04.

        Self-employment      incompatibility, which derives from the self-appointment        aspect of
incompatibility, prevents one person from holding an office and an employment that the office
supervises. See Tex. Att’y Gen. LA-l 14 (1975) at 8 (concluding on the basis of Ehlinger that a
teacher in a school district may not serve as trustee for the same district). See also Tex. Att’y Gen.
Op. No. JC-0371 (2001) at 2-5; Tex. Att’y Gen. LO-97-034, at 2. Self-employment incompatibility
does not apply in this case because neither position has authority to supervise the other.




       4Govemment Code section 29.002 defines “corporation court” as “municipal court.” See TEX. GOV’T CODE
A~~.$29.002(Vemon2004).
The Honorable Joe F. Grubbs      - Page 3        (GA-01 99)




         Finally, one person may not hold two offices if their loyalties and duties are in conflict. See
 Thomas v. Abernathy County Line Indep. Sch. Dist., 290 S.W. 152,153 (Tex. Comm’n App. 1927,
judgm’t adopted) (offices of school trustee and city alderman were incompatible because the city
council had supervisory powers over school property within the city limits). The “conflicting
loyalties” aspect of incompatibility applies only where both positions are offices. See Tex. Att’y
 Gen. Op. Nos. GA-0127 (2003) at 3, JC-0054 (1999) at 2. It does not apply to the office and
 employment at issue here.

          You also ask us to determine whether the canons ofjudicial conduct prevent the city finance
director from serving as a temporary municipal judge. See TEX. CODE JUD.CONDUCT, Canons l-8,
reprinted in TEX. GOV’T CODE ANN. tit. 2, subtit. G. app. B (Vernon 1998 & Supp. 2004) (adopted
by the Texas Supreme Court). A municipal court judge is required to comply with the Code of
Judicial Conduct with certain exceptions. See id. Canon 6C(l). A municipal court judge “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. In addition, the 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.

         You state that the finance director works on the city budget and projects revenue flow to the
city. See Request Letter, supra note 1, at 2. A temporary municipal judge sets the fine amount on
a guilty plea or finding of guilt, subject to the limits in Texas Government Code section 29.003. See
TEX. GOV’T CODE ANN. 5 29.003 (Vernon 2004); TEX. CODE CFUM.PROC. ANN. art. 4.14 (Vernon
Supp. 2004) 0‘urisdiction of municipal court). While there has been “no indication whatsoever that
the Temporary Judge has allowed his capacity as Finance Director to influence him in setting fine
amounts, . . . the theoretical possibility of a conflict does exist.” Request Letter, supra note 1, at 2.
You are particularly concerned about the requirement that a judge avoid the appearance of
impropriety, but you suggest that allowing the temporary judge to serve as a magistrate but not
preside over cases would eliminate that concern.            However, a municipal judge’s powers are
conferred by statute and may not be withdrawn by the city council. See Thompson v. City ofAustin,
979 S.W.2d at 68 1. A temporaryjudge has the same powers and duties as the judge he replaces. See
TEX. GOV’T CODE ANN. $9 29.003, .007(g) (V emon 2004). The city council may not limit the
temporary municipal judge’s statutory powers.

          The State Commission on Judicial Conduct (“the Commission”) is responsible, in the first
 instance, for applying the judicial canons to specific conduct by a judge.           The Commission,
 established by Texas Constitution article V, section 1-a, is responsible for investigating allegations
 of judicial misconduct and for disciplining judges, including municipal judges. See TEX. CONST.
 art. V, § l-a(2), (6), (8% s ee also TEX. GOV’T CODE ANN. $9 33.001-.051 (Vernon 2004) (chapter
 33, Commission’s statutory authority). Any judge may be removed from office for willful violation
 of the Code of Judicial Conduct or willful or persistent conduct that is “clearly inconsistent with the
proper performance of his duties or casts public discredit upon the judiciary or administration of
justice.” TEX. CONST. art V 9 l-a(6)A. The Commission may receive complaints and investigate
complaints againstjudges and “[alfter such investigation as it deems necessary,“may“issue       aprivate
The Honorable Joe F. Grubbs           - Page 4         (GA-0199)




or public admonition, warning, reprimand, or requirement that the person obtain additional training
or education.” Id. $1 -a(8); see also TEX. GOV’T CODE ANN. 5 33.022 (Vernon 2004) (investigation
procedures).   The Commission “shall develop and distribute” materials describing “the types of
conduct that constitute judicial misconduct.” Id. 0 33.007(a)-(b), . see also id. 9 33.008 (Commission
shall provide information relating to judicial misconduct to entities that provide education to judges).

         The Commission has determined that an individual,improperly         held dual employment as a
justice of the peace and a law enforcement officer in neighboring counties. See State Comm’n on
Judicial Conduct, Summaries of Public Sanctions (Public Reprimand Apr. 24, 2001).5 “Such
positions created an appearance of impropriety, bias, prejudice, and partiality in the handling of
criminal cases. Furthermore, it would appear to the public that the Judge’s fellow law enforcement
officers are in a special position to influence the Judge in his decisions.” rd. The justice of the peace
was publicly reprimanded for violating and canons 2A, 4A(l), and 4D( 1) of the Texas Code of
Judicial Conduct. See id. These canons require a judge to “act at all times in a manner that promotes
public confidence in the integrity and impartiality of the judiciary,” TEX. CODE JUD. CONDUCT,
 Canon 2A; to 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. Canon 4A(l), and to “refrain from financial
and business dealings that tend to reflect adversely on the judge’s impartiality,” id. Canon 4D(l).

          The Commission has also issued a public statement condemning the practice of judges
serving as active law enforcement officers.          See State Comm’n on Judicial Conduct, Public
Statement No. PS-2000-1;6 see also TEX. CONST. art. V, 5 l-a(lO) (authorizing the Commission to
issue a public statement during proceedings against a judge when the Commission determines that
the. best interests of the public will be served and other circumstances). The Commission stated that
“by attempting to fulfill the requirements of both offices, a judge severely compromises the
impartiality and independence of the judicial office.” State Comm’n on Judicial Conduct, PubZic
Statement No. PS-2000-I. The guiding factor in the Commission’s analysis was “the public’s trust
in the ability of a judge to remain impartial and fair while conducting judicial business.” Id.

        The temporary municipal judge’s service as city finance director raises some of the issues
that the Commission addressed in connection with a judge’s service as an active law enforcement
officer. His involvement with the city budget and projected revenue flow might undermine the
public’s trust in his ability to remain impartial and fair while conducting judicial business. See also
TEX. CODE JUD.CONDUCT, Canons 2A, 4A(l), 4D(l).

        However, this office cannot in the opinion process investigate and resolve the fact questions
that may be necessary to determine whether the temporary municipal judge has violated any of these
canons of judicial ethics. See Tex. Att’y Gen. Op. No. GA-0003 (2002) at 1.7 The Commission on



         5Available at http://www.scjc.state.tx.us/sumpub.php   (under “Disciplinary Actions” heading).

         6Available at http://www.scjc.state.tx.us (under “Public Information” heading).

         ‘See also Tex. Att’y Gen. Op. Nos. GA-0100 (2003) at 4, JC-0328 (2001) at 4, M-187 (1968) at 3, O-291 1
(1940) at 2.
The Honorable Joe F. Grubbs     - Page 5       (GA-01 99)




Judicial Conduct is authorized to investigative allegations of misconduct by judges. The Texas
Constitution moreover requires the Commission to “keep itself informed as fully as may be of
circumstances relating to the misconduct. . . of particular persons holding ljudicial office], receive
complaints or reports, formal or informal, from any source in this behalf and make such preliminary
investigations as it may determine. ” TEX. CONST. art. V, § 1-a(7). See also TEX. GOV’T CODE ANN.
 $ 33.022 (Vernon 2004) (setting out Commission’s         authority to investigate the circumstances
 surrounding an appearance of misconduct and to take formal action on such matters). Whether a
judge’s conduct in specific circumstances offends the Code of Judicial Conduct is ultimately amatter
 for the State Commission on Judicial Conduct.
The Honorable Joe F. Gmbbs     - Page 6       (GA-01 99)




                                       SUMMARY

                        Neither Texas Constitution article XVI, section 40 nor the
               common-law doctrine of incompatibility       prohibits a city finance
               director from serving as a temporary municipal judge in the same city.
               The Commission on Judicial Conduct is authorized to investigate
               issues arising under the Code of Judicial Conduct in connection with
               this dual service.

                                              Very truly yours,




BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Susan L. Garrison
Assistant Attorney General, Opinion Committee
