Is it a conflict for a judge to rule on cases involving the county commissioners who set his pay?

Texas AG Opinion DM-0011: A Commissioners Court Setting Judges' Pay Is Not a Constitutional Conflict of Interest

Plain-English summary

A Texas Senate committee asked the Attorney General whether there was a "constitutional conflict of interest" when a commissioners court sets the salary of a county court-at-law judge, or adds a supplement to a district judge's salary, and those judges then rule on cases that directly affect the commissioners court.

The Attorney General concluded there was no such conflict. The Government Code gives commissioners courts the power to set county court-at-law judges' salaries (section 25.0005) and, in enumerated counties, to add supplements to district judges' pay (chapter 32). The constitutional provision that bears on judicial disqualification is article V, section 11, which says "[n]o judge shall sit in any case wherein he may be interested." But Texas courts have given "interest" a special and limited meaning: it refers only to a direct pecuniary interest, and that interest must be real and certain, an immediate, necessary, and quantifiable result of the judgment in the particular case, not merely a possible or incidental one. The possibility that a judge might be influenced because the commissioners court controls his salary or supplement was too remote and uncertain to be an "interest" of that kind. So the salary-setting statutes did not create a constitutional conflict that would disqualify the judge.

Currency note

This opinion was issued in 1991. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. The Government Code judicial-salary provisions and the case law interpreting article V, section 11 may have developed since 1991. Verify current law before relying on any specific rule mentioned here.

Common questions

Is a judge disqualified just because the commissioners court sets his pay?
No. The opinion concluded the salary arrangement was too remote and uncertain to be a disqualifying "interest" under article V, section 11 of the Texas Constitution.

What does "interested" mean for judicial disqualification?
The opinion explained the courts read it narrowly: a direct pecuniary interest that is real and certain, meaning an immediate, necessary, and quantifiable result of the judgment in the specific case, not a possible or incidental effect.

Can commissioners courts supplement district judges' salaries?
Yes, in the counties the Legislature has named. Chapter 32 of the Government Code authorizes enumerated commissioners courts to pay certain district judges additional salary within set limits.

Background and statutory framework

Chapter 25 of the Government Code governs county courts-at-law (statutory county courts). Section 25.0005(a) provides that, subject to any salary requirements imposed by the chapter for a particular court or county, the commissioners court sets the salary of each statutory county court judge, payable in equal monthly installments (with exceptions such as section 25.0302(h) for Caldwell County). Chapter 32 authorizes enumerated commissioners courts to set additional or supplemental salary within limits for certain district judges (for example, section 32.002 for the 109th Judicial District). The only constitutional provision arguably applicable was article V, section 11 ("[n]o judge shall sit in any case wherein he may be interested"). Relying on the established narrow reading of "interest" as a direct, real, and certain pecuniary stake, and on cases such as Love v. Wilcox, 28 S.W.2d 515 (Tex. 1930), and Nueces County Drainage & Conservation Dist. No. 2 v. Bevly, 519 S.W.2d 938 (Tex. Civ. App.-Corpus Christi 1975, writ ref'd n.r.e.), the opinion concluded the salary-setting power was too remote to disqualify a judge.

Citations

Statutory and constitutional provisions:

• TEX. GOV'T CODE ANN. §§ 25.0005, 25.0302, 32.002
• TEX. CONST. art. V, § 11

Cases:

• Love v. Wilcox, 28 S.W.2d 515 (Tex. 1930)
• Nueces County Drainage & Conservation Dist. No. 2 v. Bevly, 519 S.W.2d 938 (Tex. Civ. App.-Corpus Christi 1975, writ ref'd n.r.e.)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0011
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1991/dm0011.pdf

Original opinion text

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

Office of the Attorney General
State of Texas

March 27, 1991

Honorable John Whitmire
Senate Committee on Intergovernmental Relations
Texas State Senate
P. O. Box 12068
Austin, Texas 78711

Opinion No. DM-11

Re: Authority of a commissioners court to set the salary of a county court-at-law judge and to supplement the salary of a district judge, and related questions (RQ-4)

Dear Senator Whitmire:

The Senate Committee on Intergovernmental Relations asked the following question.

Is there a "constitutional conflict of interest" in the commissioners court's ability to set the salary of a county court at law judge and in setting a supplement to the salary of a district judge when the judges receiving the salary and the supplement are then asked to rule on cases which directly affect the commissioners court?

Chapter 25 of the Government Code provides generally for county courts-at-law, also referred to therein as "statutory county courts." Section 25.0005 provides as follows with respect to the salaries of judges of such courts:

(a) Subject to any salary requirements otherwise imposed by this chapter for a particular court or county, the commissioners court sets the salary of each statutory county court judge.

(b) The salary shall be paid in equal monthly installments.

Other provisions in chapter 25 applicable to specific statutory county courts make exceptions to the requirement of section 25.0005(b) that the salaries of statutory county court judges are to be paid in equal monthly installments. See, e.g., id. § 25.0302(h) (subsection (b) of section 25.0005 does not apply to a county court-at-law in Caldwell County). However, the provision of subsection (a) of section 25.0005, that the commissioners court sets the salary of such judges, appears to apply generally to all Texas counties.

Chapter 32 of the Government Code provides for additional or supplemental salary to be set, within specified limits, by enumerated commissioners courts for certain district judges serving those counties. See, e.g., id. § 32.002 (Andrews County Commissioners Court to pay judge of the 109th Judicial District additional annual salary not to exceed $5000).

The request letter does not cite any particular constitutional provisions as apposite. The only constitutional provision we find that might arguably apply to the issue you present is that in article V, section 11, that "[n]o judge shall sit in any case wherein he may be interested."

The term "interest" in article V, section 11, as interpreted by the courts, has a "special and limited meaning; it refers only to direct pecuniary interests." 1 G. BRADEN, THE CONSTITUTION OF THE STATE OF TEXAS: AN ANNOTATED AND COMPARATIVE ANALYSIS at 423 (1977). A pecuniary interest sufficient to disqualify a judge under article V, section 11, must also be real and certain. Any pecuniary gain or loss to the judge must be an immediate, necessary, and quantifiable result of the judgment to be rendered in the particular case, and not merely a possible or incidental result. See Love v. Wilcox, 28 S.W.2d 515 (Tex. 1930) (justice, who was himself a candidate in primary, not disqualified to consider mandamus proceeding by another candidate to have his name printed on primary ballot); Nueces County Drainage & Conservation Dist. No. 2 v. Bevly, 519 S.W.2d 938 (Tex. Civ. App.-Corpus Christi 1975, writ ref'd n.r.e.) (judge's interest as taxpayer in drainage district too remote to disqualify him from hearing action to enjoin district from making certain improvements); Narro Warehouse, Inc. v. Kelly, 530 S.W.2d 146 (Tex. Civ. App.-Corpus Christi 1975, writ ref'd n.r.e.) (judge not disqualified to sit in condemnation case by reason of having accepted free legal services of attorney in another case in federal court in which both judge and litigants in condemnation proceeding were parties).

In our opinion, the Government Code provisions authorizing commissioners courts to set salaries for county court-at-law judges and salary supplements for district judges do not create a "constitutional conflict of interest." The possibility that the judge's actions might be influenced by the fact that the commissioners court sets his salary or supplement is too remote and uncertain to be an "interest" within the meaning of the article V, section 11, prohibition.

SUMMARY

The statutory provisions for county commissioners courts' setting the salaries of county court-at-law judges and the salary supplements of district court judges do not create a "constitutional conflict of interest."

DAN MORALES
Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY (Ret.)
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

SUSAN GARRISON
Acting Chairman, Opinion Committee

Prepared by William Walker
Assistant Attorney General