Could the Alice municipal judge keep serving after becoming Jim Wells County auditor if the judge refused the municipal salary?
Apply this to your situation
This page answers the general question as of 1985. Ezel answers yours: what it means for your facts, under current Texas law, with citations.
Texas AG Opinion JM-333: Municipal Judge and County Auditor
Plain-English summary
The Jim Wells County Attorney asked whether Alice's municipal judge could continue serving after appointment as county auditor. The judge had told the city council that he would remain a judge but "would forego the salary attached to that position." Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0333.pdf
JM-333 concluded that article XVI, section 40, barred one person from holding two civil offices of emolument. It treated both county auditor and municipal judge as such offices. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0333.pdf
Accepting and qualifying for the county-auditor office automatically vacated the municipal judgeship. The opinion stated that the individual had "effectively resigned his office as municipal judge." Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0333.pdf
Refusing the judge's compensation did not preserve the office. JM-333 said compensation was "an incident to his title to office" and that a public officer could not make a valid agreement to accept less than the amount fixed by law. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0333.pdf
The city governing body set the municipal judge's salary under article 1010. Because the judge had no power to waive that salary, the position remained an office of emolument "whether or not he accepts the compensation attached to the office." Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0333.pdf
Currency note
This opinion was issued in 1985. 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.
Common questions
Were both jobs offices of emolument?
Yes. JM-333 expressly said that "the office of county auditor and of municipal judge are both civil offices of emolument." Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0333.pdf
What happened when the municipal judge qualified as county auditor?
The first office was vacated. The opinion relied on State v. Brinkerhoff and Centeno v. Inselmann for the rule that accepting and qualifying for a second civil office of emolument vacated the first. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0333.pdf
Could the judge solve the problem by serving without pay?
No. JM-333 concluded that refusing compensation did not change the legal character of the office because the salary remained attached to the judgeship. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0333.pdf
Could a public officer agree to accept less than the legally fixed salary?
No. The opinion said a public officer or employee "cannot make a valid agreement to accept less compensation than the amount fixed by law" and could not be estopped from collecting the full amount by accepting less. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0333.pdf
Did the rule depend on whether a statute or local governing body set the salary?
No. JM-333 said the same rule applied both when compensation was set directly by statute and when a governmental body fixed it under statutory authority. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0333.pdf
Background and statutory framework
Article XVI, section 40, prohibited one person from holding two civil offices of emolument. JM-333 applied prior cases and attorney general opinions to classify the county-auditor and municipal-judge positions within that prohibition. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0333.pdf
The automatic-vacancy rule resolved the dual-office issue. Once the municipal judge accepted and qualified as county auditor, he was treated as having left the judgeship even without a separate resignation document. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0333.pdf
The salary-waiver analysis supplied an independent reason the proposed arrangement failed. Articles 1010 and 1199a addressed municipal-judge compensation, and the cited cases treated legally fixed public compensation as something the officeholder could not privately surrender to alter the office's legal status. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0333.pdf
Citations and references
- Tex. Const. article XVI, section 40
- V.T.C.S. articles 1010, 1199a, 3912m, 3912k, 3883, 3891, 3899, and 3912e
- Purcell v. Carrillo, 349 S.W.2d 263 (Tex. Civ. App. - San Antonio 1961, no writ)
- State v. Brinkerhoff, 17 S.W. 109 (Tex. 1886)
- Centeno v. Inselmann, 519 S.W.2d 889 (Tex. Civ. App. - San Antonio 1975, no writ)
- Markwell v. Galveston County, 186 S.W.2d 273 (Tex. Civ. App. - Galveston 1945, writ ref'd)
- McGuire v. City of Dallas, 170 S.W.2d 722 (Tex. 1943)
- Morrison v. City of Fort Worth, 155 S.W.2d 908 (Tex. 1941)
- Broom v. Tyler County Commissioners Court, 560 S.W.2d 435 (Tex. Civ. App. - Beaumont 1977, no writ)
- Fannin County v. Dobbs, 202 S.W.2d 950 (Tex. Civ. App. - Texarkana 1947, no writ)
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0333.pdf
Source
- Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0333
- Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0333.pdf
Original opinion text
Best-effort transcription from a scanned PDF. Minor errors may remain. The linked PDF is authoritative.
The Attorney General of Texas
July 15, 1985
Honorable Jesusa Sanchez-Vera
Jim Wells County Attorney
P. O. Drawer 2080
Alice, Texas 78333
Opinion No. JM-333
Re: Whether a municipal judge may simultaneously serve as county auditor
Dear Ms. Sanchez-Vera:
You ask whether the municipal judge of the city of Alice may continue to serve as judge after he has been appointed county auditor for Jim Wells County. You inform us that the individual in question wrote to the city council stating that he would continue to serve as municipal judge but would forego the salary attached to that position.
Article XVI, section 40 of the Texas Constitution prevents one person from holding two civil offices of emolument. The office of county auditor and of municipal judge are both civil offices of emolument. See Purcell v. Carrillo, 349 S.W.2d 263 (Tex. Civ. App. - San Antonio 1961, no writ); Attorney General Opinions V-1541 (1952); O-2684 (1940); see also State v. Brinkerhoff, 17 S.W. 109 (Tex. 1886). When a civil officer of emolument accepts and qualifies for another civil office of emolument, he is deemed to have vacated the first office. State v. Brinkerhoff, supra; Centeno v. Inselmann, 519 S.W.2d 889 (Tex. Civ. App. - San Antonio 1975, no writ). Thus, by accepting and qualifying for the office of county auditor, the individual in question effectively resigned his office as municipal judge.
His attempt to refuse the compensation of the municipal judge does not enable him to continue to hold the office. The compensation 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, writ 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.2d 722 (Tex. 1943); Morrison v. City of Fort Worth, 155 S.W.2d 908 (Tex. 1941). But see V.T.C.S. art. 3912m. He cannot estop himself from collecting the full compensation by agreeing to accept less or actually accepting less. Id.; Broom v. Tyler County Commissioners Court, 560 S.W.2d 435 (Tex. Civ. App. - Beaumont 1977, no writ). This rule applies to officers whose compensation is fixed by statute and those whose compensation is fixed by a governmental body pursuant to statutory authority. See, e.g., Morrison v. City of Fort Worth, supra (firemen's compensation established by state minimum wage provision); Broom v. Tyler County Commissioners Court, supra (J.P.'s salary fixed by commissioners court pursuant to article 3912k, V.T.C.S.); Fannin County v. Dobbs, 202 S.W.2d 950 (Tex. Civ. App. - Texarkana 1947, no writ) (county clerk's salary fixed by commissioners 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 also 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 judge holds a civil office of emolument even though he refuses to accept the compensation attached 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.
Very truly yours,
JIM MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
ROBERT GRAY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Susan L. Garrison
Assistant Attorney General
Get today's answer for your situation
You just read a 1985 opinion on this question. Ezel checks the current Texas statutes and case law and answers your specific situation, with citations.
Opens in Ezel Pro. Every answer cites the law it relies on.