Could a Texas county judge also serve as a paid director of a river authority?

Texas AG Opinion JM-594: County Judge and River Director

Plain-English summary

JM-594 considered an Angelina and Neches River Authority director who had been elected Cherokee County judge for a term beginning January 1, 1987. The AG concluded that the person could not serve in both positions at the same time. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0594.pdf

Article XVI, section 40 of the Texas Constitution barred one person from holding more than one civil office of emolument unless an exception applied. The river-authority directors exercised governmental powers independently and received ten dollars for each authorized day of service, so the opinion classified that directorship as a civil office of emolument. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0594.pdf

The county judge position was also a civil office of emolument. Although article XVI, section 40 listed county commissioners among its exceptions, JM-594 explained that a county judge held a distinct elective office with different duties and did not fall within that exception. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0594.pdf

The opinion concluded that qualifying for the county judge's office operated as a resignation from the river-authority directorship, leaving that position vacant. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0594.pdf

Currency note

This opinion was issued in 1986. 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

Why was a river-authority director considered a civil officer?

The board managed and controlled the authority, and its directors exercised governmental powers that were largely independent of other officials' control. JM-594 relied on those features to classify the position as a civil office. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0594.pdf

Why was it an office "of emolument"?

The authority's enabling act paid directors ten dollars for each authorized day of service. That compensation made the directorship an office of emolument for article XVI, section 40. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0594.pdf

Did the constitutional exception for county commissioners cover the county judge?

No. The opinion said the county judge presided over the commissioners court but occupied a separate elective office with duties different from those of the four commissioners. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0594.pdf

What happened to the river-authority seat when the person became county judge?

JM-594 concluded that qualification for the county judge's office operated as a resignation from the river-authority office, creating a vacancy. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0594.pdf

Background and statutory framework

Article XVI, section 40 stated that no person could hold or exercise more than one civil office of emolument at the same time, subject to listed exceptions. JM-594 analyzed each position separately and found that both met the constitutional category. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0594.pdf

The Angelina and Neches River Authority's enabling legislation placed management and control in a governor-appointed, senate-confirmed board. It authorized the board to issue obligations secured by district revenues and exercise other governmental powers, while compensating directors for authorized service. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0594.pdf

Citations and references

The opinion cited the following authorities. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0594.pdf

Constitutional and statutory provisions:

• Tex. Const. art. XVI, § 40
• Tex. Const. art. V, §§ 15, 18
• Tex. Const. art. XVI, § 65
• Acts 1935, 44th Leg., ch. 97, §§ 4, 8, 11, 14-18
• Acts 1945, 49th Leg., ch. 287

Cases:

• Aldine Independent School District v. Standley, 280 S.W.2d 578 (Tex. 1955)
• State ex rel. v. Brinkerhoff, 17 S.W. 109 (Tex. 1886)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0594
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0594.pdf

Original opinion text

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

December 24, 1986

Honorable Roy Blake
Chairman
Committee on Administration
Texas State Senate
P. O. Box 12068
Austin, Texas 78711

Opinion No. JM-594

Re: Whether a county judge may also serve as director of a river authority

Dear Senator Blake:

You inquire about the legality of an elected official who serves with pay also serving as director of a river authority. You state that a director of the Angelina and Neches River Authority has been elected to the office of county judge in Cherokee County, to a term beginning January 1, 1987. You wish to know whether he may serve in both positions.

Article XVI, section 40, of the Texas Constitution provides the answer to your question. This constitutional provision states as follows:

Sec. 40. No person shall hold or exercise at the same time, more than one civil office of emolument, except that of Justice of Peace, County Commissioner . . . [other exceptions not applicable] unless otherwise specially provided herein.

Tex. Const. art. XVI, section 40.

A director of the Angelina and Neches River Authority occupies a civil office of emolument. Management and control of the affairs of the district is vested in the board of directors, which consists of members appointed by the governor and confirmed by the senate. Acts 1935, 44th Leg., ch. 97, § 4 at 239; Acts 1945, 49th Leg., ch. 287 at 456 (formerly codified as V.T.C.S. art. 8280-108, § 4). Various governmental powers are conferred upon the directors of the river authority, including the power to issue notes and other obligations secured by revenues of the district. See Acts 1935, 44th Leg., ch. 97, §§ 11, 14-18 at 241, 242-6. The directors are to receive ten dollars for each day of service necessary to carry out their duties, provided that the service is authorized by vote of the board of directors. Acts 1935, 44th Leg., ch. 97, § 8 at 241. The directors of the river authority exercise sovereign functions of the government largely independent of the control of others, and they receive compensation for serving. See Aldine Independent School District v. Standley, 280 S.W.2d 578 (Tex. 1955). They are therefore civil officers of emolument within article XVI, section 40, of the Texas Constitution. See also Attorney General Opinions JM-172 (1984) (directors of river authorities are not included within exemption in article XVI, section 40 for directors of soil and water conservation districts); M-45 (1967) (director of Water Control and Improvement District occupies civil office of emolument); O-490 (1939) (director of Brazos River Conservation and Reclamation District occupies civil office of emolument).

A county judge occupies a civil office of emolument. See Tex. Const. art. V, § 15; see also Attorney General Opinion V-1541 (1952); Letter Advisory No. 61 (1973). He does not fall within any of the exceptions to article XVI, section 40. County commissioners are excepted from that provision, but even though the county judge presides over the commissioners court, he occupies a distinct elective office with duties that differ from those of the four county commissioners. See e.g., Tex. Const. art. V, §§ 15, 18; art. XVI, § 65.

Article XVI, section 40, of the Texas Constitution bars one person from serving as director of the Angelina and Neches River Authority and at the same time serving as a county judge. In this case, the individual's qualification for the office of county judge operates as a resignation from his office as director of the river authority. See State ex rel. v. Brinkerhoff, 17 S.W. 109 (Tex. 1886). The office of director thereby becomes vacant.

SUMMARY

Article XVI, section 40, of the Texas Constitution prevents one person from serving as a county judge and as director of the Angelina and Neches River Authority.

JIM MATTOX
Attorney General of Texas

JACK HIGHTOWER
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Susan L. Garrison
Assistant Attorney General