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DAN MORALES
 ATTORNEY
      CENERAL                               December 19, 1996


     The Honorable Gakn Ray Sumrow                      Opinion No. DM-428
     CriminalDistrict Attorney
     Rockwall County Courtbo~~se                       Re: Whether a person may simultaneously
     Rockwa& Texas 75087                               serve as a municipal judge in more than one
                                                       jurisdiction (RQ 873)

     Dear Mr. Sumrow:

             You have requested our opinion as to whether a person may simultaneously serve
     as a municipal judge in more tlk one jurisdiction. Article XVI, section 40, of the Texas
     Constitution provides, in relevant part:

                     No person shall hold or exercise at the same time more, than one
                civil office of emolument, except that of Justice of the Peace, County
                Commissioner, Notary Public and Postmaster , . . It is krther
                provided that a nonelective State officer may hold other nonelective
                offices under the State or the United States, if the other 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 for which he
                receives salary or compensation.

              We first consider whether the position of municipal judge is an “office.“~ In
     Purcell v. cmrillo, the court, without elaboration, held that “the office of City Judge of
     Alice . . . is a civil 05ce of emolument.” Purcell v. Carrillo, 349 S.W.2d 263 (Tex. Civ.
     App.-San Antonio 1961, no writ). L&wise, in Attorney General Opiion JM-333, this
     office said that a municipal judge occupies a civil office of emolument. Attorney General
     Opinion JM-333 (1985) at 2. Since, however, neither the case nor the opinion offer a
     compelling analysis for this conchkon, and be-cause of the serious difficulty king small
     cities in attempting to procure the services of part-time municipal judges, we feel that it is
     appropriate to consider the matter anew.




            ‘We assume your question relates only 10 municipaljudges who receive compensation. If a
     mmieipJ judge is paid for his servicesin onejurisdiction,but not in the other,he does not occupy more
     than one o&e “of emolument,”and lhos.,articleXVI, section 40, does not bar him from dual service.
     seelr;uin Y.state, 177 s.w.?.d 970,973 (-Rx. aim. App. 1944).
The Honorable Galleon Sumrow - Page 2




       The test adopted by the Supreme Court in Ah&e Independent School Dill. v.
Standley is the one commonly used to determine whether an individual is a “public
00%X.?-:

                [T]he determining factor which distinguishes a public officer
           from an employee is whethex any sovereign lbnction of the
           government is conferred upon the individual to be exercised by him
           for the benefit of the public largely indqendenf of the control of
           ohm.

AkGe Inakpena!en~ School Dial. v. Ban&y, 280 S.W. 2d 578, 583 (TX. 1995)
(emphasis in original). In Sme ex rel., Hill v. Pirile, the court held that neither an
assistant attorney general nor an assistant district attorney holds an “office.” According to
the coulf an “officer”

           is authorized by law to independently exercise functions of eitber an
           executive. legisiativ~ or judicial character, and the exercise of this
           power by the officers is subject to revision and correction only
           according to the standing laws of this state. A public employee; in
           contra% is a person in public service whose duties are generally
           routine, subordinate, advisory, and as d&ted.

Stuie ex rel., Hill v. Pirlle, 887 S.W.2d 921. 93 1 (Tex. Crim. App. 1994). As the court
indicated, an assistant attorney general “operates under the direct supavision of the
Attorney General and exercises no independent executive power,” while an ass&ant
prosecuting attorney “is hired by the district attorney, serves under his direction and at his
discretion, and exercises no independent prosecutorial power.” Id. at 93 1.

        By contrast, the position of municipal judge, whether appointed or elected, bears
all the indicia of ‘05ce.” A municipal judge is a member of the judiciary of the state,
and, like a8 judges, he is authorized to deCnitive.ly adjudicate the rights of parties
appearing before him. Hi&nun v. Slate, 183 SW. 1180 (Tex. Crim. App. 1916). His
exercise of judicial power “is subject to revision and correction only according to the
standii laws of this state.” Stale ex rel., Hill, 887 SW.2d at 931. In our opinion, it
seems evident that every such individual exercises a “sovereign 8metion of government,”
and that he does so “hugely independent of the control of others.” See Attorney General
Opinion Jh4499 (1986). We thus a5rm the holdings of Purcell v. cmrillo, and Attorney
Genera) Opinion IM-333, supru, and conclude that a compensated municipal judge,
whether 111 or patt-time, elected or appointed, holds a “public office,” and that, except in
the circumstances described below, he is prohibited from serving in that position in more
than one jurisdiction.

       As noted previously, however, a proviso to article XVI, section 40, declares that
“a nonelective State o5cer may hold other nonekctive offices under the State or the
United States, if the other office is of benefit to the State of Texas or is required by the




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   The Honorable Galleon Sumrow - Page 3




  State or Federal law, and there is no conflict with the original 05ce for which he receives
  salary or compensation.” Tex. Const. art. XVI, 5 40. A municipal judge, like other
  municipal officials, is an “officer under the state.” See Willis v. Potts, 377 S.W.2d 622,
  625 (Tex. 1964). The matter of “conflict” raises essentially an incompatibiity question.
  This 05ce has recognized three branches of incompatibility: self-employment, self-
  appointment, and conflicting loyalties. Letter Opinion No. 93-70 (1993). We are aware
  of no situation in which a municipal judge of one jurisdiction appoints or supervises a
  municipal judge of another jurisdiction.        Neither can we imagine how an issue of
  “conflicting loyalties” might arise, since the various municipalities constitute entirely
  separate jurisdictions with no role in the affairs of other municipalities.

           The question then is whether the holding by a single individual of more than one
   municipal judgeship “is of benefit to the State of Texas”2 In a particular instance-
   whether the holding of two identified municipal judgeships by a single named person
   constitutes a “benefit” to the state--this is a factual inquiry. On the other hand, one might
   argue that the holding of multiple municipal judgeships by one individual is, us u gene&
   mailer, of benefit to the state. Such a finding would be more in the nature of a legal
   determination that is derived from an analysis of numerous fact situations. In either case,
   the resolution of these questions cannot be made by this office. As we have often stated,
   we cannot answer factual inquiries.. Nor can we presume to declare the validity of the
 ’ general proposition. Neither the constitution nor any statute tiunishes any criteria for
. making such a finding, and we are not at liberty to do so merely because a number of
   individuals at present hold multiple municipal judgeships or because residents and officials
   of various small cities wish to maintain their current arrangements.

           In our opinion, the matter peculiarly calls for a legislative resolution.     The
  legislature is eminently qualified to determine what particular solutions to the matter of
  multiple municipal judgeships would “benefit” the state of Texas. Furthermore, the
  legislature could easily couple such a finding with a comprehensive statute setting out
  what limits, if any, it might find appropriate for such arrangements, and a delineation of
  the circumstances under which an individual might hold multiple municipal judgeships. In
  our view, such a resolution would not merely satisfy the constitutional requirement: it
  seems to be precisely what is called for by the proviso to article XVI, section 40.

          Accordingly, it is our opinion that a compensated municipal judge, whether fidl or
  part-time, elected or appointed, holds a “public office,” and he is prohibited by article
  XVI, section 40, Texas Constitution, from holding more than one such office. If
  however, he is an appointed municipal judge, he may hold more than one such
  appointment, provided the holding of the second 050~ is “of benefit to the State.” The


           zWe presumethe constitutionalprovisionmeansthat the holding of “the otheroffice is of benefit
  to the gate.” Surelyeverypubtic@ce createdor authorizedby mnstihttionor stahxe is “of benefitto the
  state.”
The Honorable Galleon Sumrow - Page 4




legislature is the appropriate body to determine, as u getreml matfer, whether, ,and under
what ciraunstances, the holding of multiple municipal judgeships is “of benefit to the
State.” On the other hand, the courts are best qualified to determine whether the hokhng
of more than one particular municipal judgeship by a particular individual wnstitutes a
%eneW to the state.

                                  SUMMARY

               A wmpensated municipal judge, whether full or part-time,
          ekxted or appointed, holds a “public office,” and is subject to article
          XVI, section 40, of the Texas Constitution, which prohibits the
          hokiing of more than one such office. Jf he is an qpinfed municipal
          judge, he may hold more than one such appointment, providedthe
          holding of the second 05ce is “of benefit to the State.” The
          legislature is the appropriate body to determine, as u genemlmarter,
          whether, and under what circumstances, the holding of multiple
          municipal judgeships is “of benefh to the State.” whether the
          holding of particular municipal judgeships by a particular individual
          wnstitutes a %eneW to the state requbes the resolution of fbctual
          matters inappropriate to the opinion process.




                                                     DAN MORALES
                                                     Attorney General of Texas

JORGE VEGA
Fii flhtant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by Rick Gilpin
Assistant Attorney General




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