Can a part-time municipal judge in Texas also serve on a drainage district board?

Plain-English summary

One person in Jefferson County held two paying public jobs at once: appointed part-time municipal court judge, and elected commissioner on the board of the county's Drainage District No. 7. A state representative asked the Attorney General whether the Texas Constitution let the same person hold both, whether the judge could draw pay from both, and whether the common-law doctrine of incompatibility came into play.

The controlling rule is article XVI, section 40 of the Texas Constitution, which says no person may hold or exercise more than one civil office of emolument at the same time. A "civil office" means a public office, and an "emolument" is a pecuniary profit, gain, or advantage. A compensated municipal judge, full or part-time, holds a public office of emolument. A commissioner on a drainage district board is a member of the governing body of a political subdivision, which is also a public office, and because the post is compensated, it too is an office of emolument. So the constitution forbids one person from holding both at the same time.

The representative had asked whether the section 40 exception for water conservation districts might save the arrangement. The Attorney General explained the exception is actually for a "soil and water conservation district," a specific kind of district created under chapter 201 of the Agriculture Code. A drainage district is created under chapter 56 of the Water Code, so it does not fall within that exception. Because the constitution already barred the dual service, the Attorney General did not reach the third question about common-law incompatibility.

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

The official holding both posts (as the opinion held for that situation): The opinion concluded that one person could not, under article XVI, section 40, hold the compensated part-time municipal judgeship and the compensated drainage district commissioner seat at the same time.

On the water-district exception (what the opinion clarified): Under the opinion, section 40's exception is for a "soil and water conservation district" created under chapter 201 of the Agriculture Code, and a drainage district created under chapter 56 of the Water Code is not the same thing, so the exception does not apply to a drainage district commissioner.

On the incompatibility question (what the opinion left unaddressed): Because the constitutional bar resolved the matter, the opinion expressly declined to reach the third question about whether the common-law doctrine of incompatibility also applied.

Common questions

Can the same person be a paid part-time municipal judge and a paid drainage district commissioner in Texas?
The opinion concluded no, because article XVI, section 40 of the Texas Constitution bars holding more than one civil office of emolument at once and both posts qualify.

Why does it matter that both jobs are paid?
The opinion explained that an "emolument" is a pecuniary profit, gain, or advantage, so a compensated office is an office of emolument; an uncompensated office would not trigger the bar in the same way.

Doesn't the constitution have an exception for water districts?
The opinion clarified the exception is for a "soil and water conservation district" under chapter 201 of the Agriculture Code, not a drainage district under chapter 56 of the Water Code, so it does not apply here.

Did the opinion decide the common-law incompatibility question too?
No. The opinion concluded the constitutional bar settled the matter and so did not address the separate incompatibility doctrine.

Background and statutory framework

Article XVI, section 40 of the Texas Constitution provides that no person shall hold or exercise at the same time more than one civil office of emolument. Tex. Const. art. XVI, § 40(a). A "civil office" is a public office, Tilley v. Rogers, 405 S.W.2d 220, 224 (Tex. Civ. App.—Beaumont 1966, writ ref'd n.r.e.), and an "emolument" is a pecuniary profit, gain, or advantage. Irwin v. State, 177 S.W.2d 970, 973 (Tex. Crim. App. 1944). A compensated municipal judge, whether full or part-time, holds a public office of emolument and is therefore barred from holding any other office of emolument.

A commissioner of a drainage district occupies a public office, because a member of the governing body of a political subdivision occupies an office. Aldine Independent School District v. Standley, 280 S.W.2d 578 (Tex. 1955); Jones v. Jefferson Cnty. Drainage Dist. No. 6, 139 S.W.2d 861, 862 (Tex. Civ. App.—Beaumont 1940, writ ref'd). Because the commissioner position is compensated, it is an office of emolument, so article XVI, section 40 bars a compensated part-time municipal judge from also serving as a commissioner.

Section 40 excludes a "soil and water conservation district," not a "water conservation district." Tex. Const. art. XVI, § 40. A soil and water conservation district is created under chapter 201 of the Agriculture Code, while a drainage district is created under chapter 56 of the Texas Water Code, so a drainage district commissioner is not within the exception. Because the constitution barred the simultaneous service, the Attorney General did not address the common-law incompatibility question.

Citations

Statutes:

• Tex. Const. art. XVI, § 40(a)
• Tex. Const. art. XVI, § 40
• Tex. Agric. Code ch. 201
• Tex. Water Code ch. 56

Cases:

• Tilley v. Rogers, 405 S.W.2d 220, 224 (Tex. Civ. App.—Beaumont 1966, writ ref'd n.r.e.)
• Irwin v. State, 177 S.W.2d 970, 973 (Tex. Crim. App. 1944)
• Aldine Independent School District v. Standley, 280 S.W.2d 578 (Tex. 1955)
• Jones v. Jefferson Cnty. Drainage Dist. No. 6, 139 S.W.2d 861, 862 (Tex. Civ. App.—Beaumont 1940, writ ref'd)

AG opinions referenced:

• Tex. Att'y Gen. Op. No. GA-0132 (2003)
• Tex. Att'y Gen. Op. No. GA-0199 (2004)
• Tex. Att'y Gen. Op. No. DM-428 (1996)
• Tex. Att'y Gen. Op. No. JC-0455 (2002)
• Tex. Att'y Gen. Op. No. JM-1266 (1990)
• Tex. Att'y Gen. Op. No. JC-0095 (1999)
• Tex. Att'y Gen. LA-150 (1978)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0841
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2011/ga0841.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 Allan B. Ritter Opinion No. GA-0841
Chair, Committee on Natural Resources
Texas House of Representatives Re: Whether a part-time municipal court judge
Post Office Box 2910 may simultaneously serve as a member of the
Austin, Texas 78768-2910 Board of Commissioners of the Jefferson County
Drainage District No. 7 (RQ-0911-GA)

Dear Representative Ritter:

You ask several questions regarding a person's simultaneous service as an appointed part-time municipal court judge and as an elected commissioner on the Board of Commissioners of the Jefferson County Drainage District No. 7 ("District").[1] In addition to receiving compensation as municipal judge, the person about whom you inquire also receives compensation for serving as a commissioner of the District. See Request Letter at 1. Specifically, you ask the following questions:

1) Whether Article XVI, Section 40, Texas Constitution, prohibits an appointed, part-time Municipal Court Judge from also serving as an elected Commissioner to the Board of Commissioners of a drainage district[.] If not, whether the Judge may also receive compensation for his service as a Commissioner to the drainage district[.]

2) Whether the exceptions contained in Article XVI, Section 40, Texas Constitution, that reference in part "water conservation districts" also include drainage districts, such as Jefferson County Drainage District No. 7[.] Further, if a drainage district is not included in the definition of a "water conservation district" under the applicable law, what type of districts are covered by the exception provided for a "water conservation district?"

3) Whether the common[-]law doctrine of incompatibility has any impact upon the subject matter[.]

Request Letter at 2-3. We address your first two questions together.

Article XVI, section 40, Texas Constitution, provides that "[n]o person shall hold or exercise at the same time, more than one civil office of emolument." TEX. CONST. art. XVI, § 40(a). For purposes of this provision, a "civil office" is a "public office." Tilley v. Rogers, 405 S.W.2d 220, 224 (Tex. Civ. App.—Beaumont 1966, writ ref'd n.r.e.). An "emolument" is a "pecuniary profit, gain, or advantage." Tex. Att'y Gen. Op. No. GA-0132 (2003) at 1 (citing Irwin v. State, 177 S.W.2d 970, 973 (Tex. Crim. App. 1944)).

This office has previously determined that a compensated municipal judge, whether full or part-time, holds a public office of emolument. E.g., Tex. Att'y Gen. Op. Nos. GA-0199 (2004) at 2 (stating that a municipal judge is an officer, but that an uncompensated temporary municipal judge does not hold a civil office of emolument). A compensated part-time municipal court judge is therefore prohibited by article XVI, section 40 from holding any other office of emolument. See Tex. Att'y Gen. Op. No. DM-428 (1996) at 3.

As a member of a governing body of a political subdivision, a commissioner of a drainage district occupies a public office. See Tex. Att'y Gen. Op. No. JC-0455 (2002) at 3-4 (considering sovereign function test under Texas Supreme Court opinion Aldine Independent School District v. Standley, 280 S.W.2d 578 (Tex. 1955), and stating that "[a] member of the governing body of a political subdivision ... clearly occupies an office"); Jones v. Jefferson Cnty. Drainage Dist. No. 6, 139 S.W.2d 861, 862 (Tex. Civ. App.—Beaumont 1940, writ ref'd) ("Drainage districts ... are political subdivisions of the state of the same nature and stand upon exactly the same footing as counties, or precincts, or any of the other political subdivisions of the state."); see also Tex. Att'y Gen. Op. No. JM-1266 (1990) at 2 ("Elected officials are clearly officers."). Because the office of commissioner of the District is a compensated position, the office is one of emolument. Accordingly, pursuant to article XVI, section 40, a compensated part-time municipal court judge may not serve as a commissioner on the Board of Commissioners of a drainage district.

You suggest in your second question that the office of commissioner of a drainage district may be exempt from article XVI, section 40, because that provision exempts "water conservation district[s]" from its reach. Request Letter at 2. Section 40, however, does not exclude a "water conservation district" but rather a "soil and water conservation district." TEX. CONST. art. XVI, § 40. Opinions of this office have consistently concluded that a soil and water conservation district in article XVI, section 40 is a district created under chapter 201, Agriculture Code. See e.g., Tex. Att'y Gen. Op. No. JC-0095 (1999) at 2-3 (and sources cited therein). In addition, this office has expressly determined that a director of a drainage district does not fall within the soil and water conservation district exception because "[d]rainage districts are created pursuant to chapter 56 of the Texas Water Code [and] [s]oil and water conservation districts" are created under chapter 201 of the Texas Agriculture Code. Id. at 2 (citing Tex. Att'y Gen. LA-150 (1978) at 1). A member of the Board of Commissioners of the District is not a director of a soil and water conservation district and thus not exempt from the operation of article XVI, section 40.

Because we have concluded that the Texas Constitution bars the simultaneous service about which you ask, we do not address your third question.

SUMMARY

Texas Constitution, article XVI, section 40, prohibits a compensated part-time municipal court judge from simultaneously serving as a member of the Board of Commissioners of the Jefferson County Drainage District No. 7.

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

Charlotte M. Harper
Assistant Attorney General, Opinion Committee

[1] See Request Letter at 1 (available at www.texasattorneygeneral.gov).