Can someone be a visiting county court judge and a county department director at the same time in Texas?

Plain-English summary

In 2009, the Bexar County Commissioners Court created a new staff position, Director of Judicial Support Services, to help make the criminal justice system more efficient and bring down the county jail population. The job also included helping the regional presiding judge by accepting assignments to the Bexar County courts. The county hired a retired statutory county court judge for the director job, and that same person also sat as a visiting statutory county court judge. The Bexar County Criminal District Attorney asked the Attorney General whether one person could legally hold both at once.

The answer turned on a single distinction: office versus employment. Article XVI, section 40 of the Texas Constitution forbids holding more than one civil office of emolument at the same time, but it only reaches public offices. The director position is an employment, not a public office, because it does not carry a sovereign function of government exercised largely independent of others. So section 40 did not bar the dual service.

The Attorney General also ran through the common-law doctrine of incompatibility, which guards against self-appointment, self-employment, and conflicting loyalties. Self-appointment and self-employment did not fit, because the commissioners court (not the judge) appoints and employs the director, and the regional presiding judge (not the director) appoints the visiting judge. The conflicting-loyalties branch only applies when both positions are offices, and the director job is not an office, so that branch did not bar the arrangement either. The Attorney General noted that whether the dual service is ethically proper under the Code of Judicial Conduct is a question for the State Commission on Judicial Conduct, since a legal act is not necessarily an ethical one.

Currency note

This opinion was issued in 2011. Subsequent statutory amendments, court decisions, or later Attorney General 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 for those who asked

Bexar County and the official holding both roles (as the opinion held for them): The opinion concluded that one person could lawfully serve at the same time as a visiting statutory county court judge and as the county's Director of Judicial Support Services, because the director role is an employment rather than a public office.

On why article XVI, section 40 did not apply (what the opinion clarified): Under the opinion, the constitutional bar on holding more than one civil office of emolument reaches only public offices, and the director position is an employment, so it is not a second office that triggers the bar.

On the incompatibility doctrine (what the opinion described): The opinion explained that none of the three branches of common-law incompatibility (self-appointment, self-employment, conflicting loyalties) barred the arrangement, in part because the conflicting-loyalties branch applies only when both positions are offices.

On ethics (where the opinion pointed the reader): The opinion directed any question about the ethical propriety of the dual service, under the Code of Judicial Conduct, to the State Commission on Judicial Conduct rather than the Attorney General.

Common questions

Can a Texas visiting judge also hold a county staff job at the same time?
The opinion concluded yes in this case, because the county staff position (Director of Judicial Support Services) is an employment, not a public office, so the constitutional dual-office bar did not apply.

What is the difference between an "office" and an "employment" here?
The opinion relied on the test that a public officer, unlike an employee, is given a sovereign function of government to exercise for the public largely independent of the control of others.

Did the common-law incompatibility doctrine block the dual service?
No. The opinion concluded none of its branches applied, noting that conflicting-loyalties incompatibility requires both positions to be offices, and the director job is not an office.

Who decides if the arrangement is ethically appropriate for a judge?
The opinion pointed to the State Commission on Judicial Conduct, observing that an act that is legal is not necessarily ethical under the Code of Judicial Conduct.

Background and statutory framework

Article XVI, section 40 of the Texas Constitution prohibits a person from simultaneously holding more than one civil office of emolument. Tex. Const. art. XVI, § 40. The bar reaches public offices only. Whether a position is an office or an employment turns on whether a sovereign function of government is conferred on the individual to be exercised for the public largely independent of the control of others. Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578, 583 (Tex. 1955). The Director of Judicial Support Services is an employment, not a public office, so section 40 did not bar the holder from also serving as a visiting judge.

The common-law doctrine of incompatibility prevents conflicts in three situations: self-appointment, self-employment, and conflicting loyalties. Neither self-appointment nor self-employment applied, because the commissioners court appoints and employs the director and the regional presiding judge appoints the visiting judge. Conflicting-loyalties incompatibility, which prohibits holding two positions that would keep a person from exercising independent and disinterested judgment, applies only when each position is an office. Because the director position is not an office, that branch did not bar the simultaneous service. The Attorney General noted that the ethical propriety of the arrangement under the Code of Judicial Conduct is for the State Commission on Judicial Conduct to address.

Citations

Statutes:

• Tex. Const. art. XVI, § 40

Cases:

• Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578, 583 (Tex. 1955)

AG opinions referenced:

• Tex. Att'y Gen. Op. No. GA-0766 (2010)
• Tex. Att'y Gen. Op. No. GA-0169 (2004)
• Tex. Att'y Gen. Op. No. GA-0538 (2007)
• Tex. Att'y Gen. Op. No. GA-0402 (2006)
• Tex. Att'y Gen. Op. No. GA-0393 (2006)
• Tex. Att'y Gen. Op. No. GA-0651 (2008)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0840
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2011/ga0840.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

February 7, 2011

The Honorable Susan D. Reed Opinion No. GA-0840
Bexar County Criminal District Attorney
Cadena-Reeves Justice Center Re: Whether an individual may simultaneously
300 Dolorosa, Fifth Floor serve as the Director of Judicial Support Services
San Antonio, Texas 78205-3030 for Bexar County and as a visiting statutory county
court judge in that county (RQ-0909-GA)

Dear Ms. Reed:

You ask whether an individual may simultaneously serve as the Director of Judicial Support Services for Bexar County and as a visiting statutory county court judge in that county.[1]

You explain that, in 2009, the Bexar County Commissioners Court created the position of Director of Judicial Support Services "to assist the Commissioners Court in creating a more efficient criminal justice system with the goal of reducing the Bexar County jail population." Request Letter at 1. Moreover, the "job description also includes the duty of assisting the regional presiding judge by accepting assignments to the Bexar County Courts." Id. You state that the commissioners court has employed a particular retired statutory county court judge for the position of director. Id. at 2. You inquire whether that individual may simultaneously serve both as the director and as a visiting statutory county court judge. Id. at 5.

Article XVI, section 40 of the Texas Constitution prohibits a person from simultaneously holding more than one "civil office of emolument." TEX. CONST. art. XVI, § 40. As you note, the position of director is an "employment" rather than an "office."[2] Request Letter at 2-3. Because the director does not as such hold a public office, he is not prohibited by article XVI, section 40 from simultaneously holding the position of visiting judge.

We must also consider the possible applicability of the common-law doctrine of incompatibility to your question. That doctrine acts to prevent conflicts in three situations: self-appointment, self-employment, and conflicting loyalties. See Tex. Att'y Gen. Op. No. GA-0766 (2010) at 1. Neither self-appointment nor self-employment is applicable in the situation you pose, because the commissioners court, rather than the visiting judge, both appoints and employs the director. Likewise, the regional presiding judge, rather than the director, appoints the visiting judge, and the commissioners court, as the administrative arm of the county, serves as his employer.

Conflicting loyalties incompatibility "prohibits an individual from simultaneously holding two positions that would prevent him ... from exercising independent and disinterested judgment in either or both positions." Tex. Att'y Gen. Op. No. GA-0169 (2004) at 2. It is now well established that, in order for conflicting loyalties incompatibility to apply, each position must constitute an "office." Tex. Att'y Gen. Op. Nos. GA-0766 (2010) at 1-2, GA-0538 (2007) at 2, GA-0402 (2006) at 2, GA-0393 (2006) at 3. Because, as we have indicated, the position of director is not an "office," it follows that conflicting loyalties incompatibility is not a bar to the simultaneous service at issue here.

Because you inquire about the legal validity of a judge's service, we note that questions regarding the ethical propriety of the issue you raise should be addressed to the State Commission on Judicial Conduct. See Tex. Att'y Gen. Op. No. GA-0651 (2008) at 6.[3]

SUMMARY

Neither article XVI, section 40 of the Texas Constitution nor the common-law doctrine of incompatibility prohibit an individual from simultaneously serving as a visiting statutory county court judge in Bexar County and as Director of Judicial Support Services for Bexar County. The Texas Commission on Judicial Conduct is responsible for determining whether such simultaneous service implicates the Code of Judicial Conduct.

Very truly yours,

DANIEL T. HODGE
First Assistant Attorney General

DAVID J. SCHENCK
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee

[1] Request Letter (available at http://www.texasattorneygeneral.gov).

[2] The Texas Supreme Court has declared that "the 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 Indep. Sch. Dist. v. Standley, 280 S.W.2d 578, 583 (Tex. 1955).

[3] In an official statement issued in 2000, the Commission observed that, under the Code of Judicial Conduct, "an act that is legal is not necessarily an act that is ethical." See STATE COMM'N ON JUDICIAL CONDUCT, PUBLIC STATEMENT No. PS-2000-1 (Mar. 24, 2000), available at http://www.scjc.state.tx.us/pdf/ps/PS-2000-1.pdf (last visited Jan. 31, 2011).