Can one person be a municipal judge in two Texas cities at the same time?

Plain-English summary

Small Texas cities sometimes have trouble finding part-time municipal judges, and one solution is to share a judge across towns. The Criminal District Attorney for Rockwall County asked the Attorney General whether one person can serve as a municipal judge in more than one jurisdiction at the same time, given article XVI, section 40 of the Texas Constitution, which bars a person from holding "more than one civil office of emolument."

The Attorney General concluded that a municipal judge holds a "public office." A judge exercises a sovereign judicial function, deciding the rights of people who come before the court, largely free of anyone else's control, which is the classic test for an office (as opposed to a mere employee). So a paid municipal judge, whether full or part-time and whether elected or appointed, generally cannot hold more than one such office.

There was one opening. The constitution's proviso lets a nonelective state officer hold a second nonelective office if that office "is of benefit to the State" and there is no conflict. The opinion said an appointed (not elected) municipal judge could therefore hold more than one appointment if the second one benefits the state. But the Attorney General would not decide whether holding multiple judgeships actually benefits the state. It treated that as a question for the legislature in general, and for the courts in any particular case, not something the opinion process could resolve.

Currency note

This opinion was issued in 1996. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant at the time

For municipal judges: The opinion treated a compensated municipal judge as holding a "public office" subject to article XVI, section 40. An elected judge, or any judge paid in both posts, fell under the general bar against holding more than one office of emolument. An appointed judge had a narrow path to a second appointment, but only if it qualified as "of benefit to the State."

For small cities trying to share a judge: The opinion acknowledged the practical difficulty small cities faced in hiring part-time judges, and it did not find any conflict-of-loyalty problem in one person judging in separate towns. But it did not bless the arrangement outright. It pointed to the legislature as the body that could authorize and set rules for shared judgeships.

On the "benefit to the State" question: The Attorney General expressly declined to answer whether holding multiple municipal judgeships is "of benefit to the State." It said it could not resolve the factual question of whether a specific person's two judgeships benefit the state (a matter for the courts), nor declare as a general proposition that multiple judgeships benefit the state (a matter for the legislature). Readers should not read the opinion as deciding that question either way.

Common questions

Could one person be a municipal judge in two cities at once under this opinion?

Generally no, if the judge was elected or was paid in both cities, because the opinion treated a paid municipal judge as holding a "public office" that article XVI, section 40 says a person may hold only one of. An appointed judge was the exception, and only if the second post was "of benefit to the State."

Why is a municipal judge an "office" but an assistant district attorney is not?

The opinion drew that line from State ex rel. Hill v. Pirtle. A judge independently exercises a sovereign judicial power, deciding cases subject only to revision under the law. An assistant prosecutor or assistant attorney general works under a superior's direction and exercises no independent power, so the courts had treated those positions as employment, not office.

Did it matter whether the judge was paid?

Yes. The opinion assumed the question concerned judges who receive compensation. In a footnote it noted that if a judge is paid in one jurisdiction but serves without pay in the other, he does not hold more than one office "of emolument," so the one-office bar would not apply.

Did the opinion decide whether sharing a judge benefits the state?

No. It said that question was for the legislature as a general matter and for the courts in any specific case, and that the Attorney General's opinion process was not the place to resolve it.

Background and statutory framework

Article XVI, section 40 of the Texas Constitution prohibits a person from holding "at the same time more than one civil office of emolument," with named exceptions (justice of the peace, county commissioner, notary public, postmaster). A proviso allows a nonelective state officer to hold another nonelective office if it "is of benefit to the State of Texas or is required by the State or Federal law," with no conflict with the original office.

To decide whether a municipal judge holds an "office," the opinion applied the test from Aldine Independent School Dist. v. Standley: whether a sovereign function of government is conferred on the person, to be exercised largely independent of the control of others. It contrasted State ex rel. Hill v. Pirtle, where assistant prosecutors and assistant attorneys general were held not to hold offices because they act under a superior's direction. A municipal judge, by contrast, adjudicates the rights of parties and exercises independent judicial power (citing Hickman v. State), so the opinion affirmed earlier authority (Purcell v. Carrillo and Attorney General Opinion JM-333) that a municipal judge holds a civil office of emolument. The opinion also drew on its own prior analysis of incompatibility (self-employment, self-appointment, and conflicting loyalties) from Letter Opinion No. 93-70 (1993), finding none of those concerns present between separate municipalities.

Citations

Constitution

• Tex. Const. art. XVI, § 40

Cases

• Purcell v. Carrillo, 349 S.W.2d 263 (Tex. Civ. App.-San Antonio 1961, no writ)
• Aldine Independent School Dist. v. Standley, 280 S.W.2d 578 (Tex. 1955)
• State ex rel. Hill v. Pirtle, 887 S.W.2d 921 (Tex. Crim. App. 1994)
• Hickman v. State, 183 S.W. 1180 (Tex. Crim. App. 1916)
• Willis v. Potts, 377 S.W.2d 622 (Tex. 1964)
• Jarrell v. State, 177 S.W.2d 970 (Tex. Crim. App. 1944)

Attorney General materials referenced

• Attorney General Opinions JM-333 (1985) and JM-499 (1986)
• Letter Opinion No. 93-70 (1993)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0428
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1996/dm0428.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

DAN MORALES
ATTORNEY GENERAL

Office of the Attorney General
State of Texas

December 19, 1996

The Honorable Galen Ray Sumrow
Criminal District Attorney
Rockwall County Courthouse
Rockwall, Texas 75087

Opinion No. DM-428

Re: Whether a person may simultaneously 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 than 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 further 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."[1] In Purcell v. Carrillo, the court, without elaboration, held that "the office of City Judge of Alice . . . is a civil office of emolument." Purcell v. Carrillo, 349 S.W.2d 263 (Tex. Civ. App.-San Antonio 1961, no writ). Likewise, in Attorney General Opinion 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 conclusion, and because of the serious difficulty facing small cities in attempting to procure the services of part-time municipal judges, we feel that it is appropriate to consider the matter anew.

The test adopted by the Supreme Court in Aldine Independent School Dist. v. Standley is the one commonly used to determine whether an individual is a "public office[r]":

[T]he determining factor which distinguishes a public officer 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 Independent School Dist. v. Standley, 280 S.W.2d 578, 583 (Tex. 1955) (emphasis in original). In State ex rel. Hill v. Pirtle, the court held that neither an assistant attorney general nor an assistant district attorney holds an "office." According to the court, an "officer"

is authorized by law to independently exercise functions of either an executive, legislative, 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 contrast, is a person in public service whose duties are generally routine, subordinate, advisory, and as directed.

State ex rel. Hill v. Pirtle, 887 S.W.2d 921, 931 (Tex. Crim. App. 1994). As the court indicated, an assistant attorney general "operates under the direct supervision of the Attorney General and exercises no independent executive power," while an assistant prosecuting attorney "is hired by the district attorney, serves under his direction and at his discretion, and exercises no independent prosecutorial power." Id. at 931.

By contrast, the position of municipal judge, whether appointed or elected, bears all the indicia of "office." A municipal judge is a member of the judiciary of the state, and, like all judges, he is authorized to definitively adjudicate the rights of parties appearing before him. Hickman v. State, 183 S.W. 1180 (Tex. Crim. App. 1916). His exercise of judicial power "is subject to revision and correction only according to the standing laws of this state." State ex rel. Hill, 887 S.W.2d at 931. In our opinion, it seems evident that every such individual exercises a "sovereign function of government," and that he does so "largely independent of the control of others." See Attorney General Opinion JM-499 (1986). We thus affirm the holdings of Purcell v. Carrillo, and Attorney General Opinion JM-333, supra, and conclude that a compensated municipal judge, whether full or part-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 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." Tex. Const. art. XVI, § 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 incompatibility question. This office 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, as a general matter, 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 furnishes 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 full 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 office is "of benefit to the State." The legislature is the appropriate body to determine, as a general matter, whether, and under what circumstances, 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 holding of more than one particular municipal judgeship by a particular individual constitutes a benefit to the State.

SUMMARY

A compensated municipal judge, whether full or part-time, elected or appointed, holds a "public office," and is subject to article XVI, section 40, of the Texas Constitution, which prohibits the holding of more than one such office. If he is an appointed municipal judge, he may hold more than one such appointment, provided the holding of the second office is "of benefit to the State." The legislature is the appropriate body to determine, as a general matter, whether, and under what circumstances, the holding of multiple municipal judgeships is "of benefit to the State." Whether the holding of particular municipal judgeships by a particular individual . . . matters inappropriate to the opinion process.

DAN MORALES
Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by Rick Gilpin
Assistant Attorney General

Footnotes

[1] We assume your question relates only to municipal judges who receive compensation. If a municipal judge is paid for his services in one jurisdiction, but not in the other, he does not occupy more than one office "of emolument," and thus, article XVI, section 40, does not bar him from dual service. See Jarrell v. State, 177 S.W.2d 970, 973 (Tex. Crim. App. 1944).

[2] We presume the constitutional provision means that the holding of "the other office" is "of benefit to the state." Surely every public office created or authorized by constitution or statute is "of benefit to the state."