Attorney General Opinions

Transcription

1 Attorney General Opinions Dual Office Holding Law for Municipal Court Judges Office of the Attorney General State of Texas Greg Abbott AG Opinion Process How are AG Opinions produced? Government Code Sections Request for AG opinion must affect public interest or concern official duties of requesting person. No private legal disputes! (Whose property fence is on) AG Opinion Process (continued) Authorized requestors: Only certain people can request AG opinions. This includes (but not limited to): Committee of a house of Legislature--In practice, chair of committee Does not have to relate to committee business County or District Attorney Requirement they submit brief (of any quality) 1

2 AG Opinion process Other details Written request sent by certified/registered mail. Opinion must be issued no later than 180 days after date request is received. If litigation is pending, AG will close out request. Briefs from requestor and anyone else within 30 days. AG Opinion process Opinion about AG Opinions Don t believe rumors about how opinions may be coming out Opinions help new legislation address gaps in original statutes Opinions are not judicial authority, but courts rarely reject analysis in opinions AG Opinion Initials What do Letters and Numbers mean? Example: GA-0160 Example: RQ-0160-GA GA=Greg Abbott RQ = Request 160s = number that opinion was issued or request was accepted However, 160 in RQ does not coincide with 160 in the GA s No more LO s since 1999 Ex. LO issued in

3 Constitutional Restrictions Texas Constitution Art. XVI Sec one person may not hold two civil offices of emolument (compensation) --municipal judge is civil officer; Purcell v. Carrillo (1961) Constitutional Restrictions JM-333 (1985) held municipal judge was officer, could not hold other office of county auditor as both were compensated Standard constitutional dual office situation Constitutional Restrictions DM-428 (1996) explains why judge is officer; authorized to definitely adjudicate parties rights; exercises a sovereign function of government largely independent of the control of others 3

4 Constitutional Exemptions Justices of Peace are exempt under Art. XVI Sec. 40 see JM-819 (1987) County Commissioners are also exempt see GA-348 (2005) Are municipal judges themselves exempt, somehow? Sort of. Constitutional Exemptions Art. XVI Sec. 40 states nonelected officer may hold another nonelective office if of benefit to the State of Texas and no conflict between offices DM-428 held (1) no conflict between two separate municipal judgeships; (2) Legislature should decide benefit issue Gov. Code states multiple municipal judgeships are of benefit to State LO held mun. judge could not be director of river authority, no statute enacted Constitution doesn t apply JM-333 held municipal judge can t refuse salary to avoid bar If judge is unpaid or if is reimbursed for actual expenses, would not be office of emolument; also, look and see if other office is unpaid, e.g., JC-216 (2000), school trustee If reimbursed per diem expenses, constitution does apply 4

5 Constitution exemption doesn t guarantee officeholding GA-362 held that home rule cities under Local Gov t Code , which allows them to prescribe qualifications of their officers, could prohibit municipal judge from being JP in its charter State Law beyond Constitution common law incompatibility 3 types: self-appointment, selfemployment, conflicting loyalties Generally only conflicting loyalties at issue with municipal judges Incompatibility Municipal judges incompatible office with Justice of Peace when city in JP s district? O-2055 (1940) held not incompatible when merely share jurisdiction 5

6 Mun. judge-jp compatibility JM-422 (1986) overruled O-2055, said judge could waive one court s jurisdiction to enrich other court JM-819 (1987) overruled JM-422 Relied on three arguments Mun. judge-jp compatibility Noted judge does not control filing of complaint and must accept it if in proper performance of office Determined that JM-422 s reliance on prior AG opinions and caselaw was incorrect because they all dealt with geographically identical judgeships Mun. judge-jp incompatibility Recognized practical needs of small towns to have one person fill both local judgeships 6

7 Incompatibility doesn t apply Both positions must be offices (this also applies to constitutional DO- Holding) GA-199 (2004); even though municipal judge appears to be incompatible with also being finance director, the latter is an employee; remember definition of officer Are municipal judges always compatible? Municipal court is of limited jurisdiction, even more so than justices of peace; reasoning in JC-216 allowing city judge to be school trustee (notice must ask common law question even if constitution doesn t apply) Yes? GA-348 held that municipal judge s powers are so limited that even possibility of county commissioner s voting on criminal offenses that could come before city court did not mean they were incompatible offices 7

8 Final hurdle Code of Judicial Conduct Commission on Judicial Conduct interprets Code Canon 4H prohibits appointment of judges to government positions However, Canon 6C exempts municipal judges (and JP s) from Canon 4H (see JC-216) Other Code Provisions Canon 5(3) provides a judge must resign upon becoming a candidate for non-judicial office However, Canon 6C exempts municipal judges from Canon 5(3) (see GA-348) Public Statement by Commission on ethics of DOH PS condemned practice of judge being law enforcement officer Recognized LO had found this proper legally (policemen are not officers normally for DOH purposes) Statement appears to rest on separation of powers grounds this has been rejected as legal bar to dual office holding by AG since early 90 s 8

9 PS Dual service impairs effectiveness of both positions Compromises impartiality/integrity Ethical bar applies even if positions are in different counties Effect of PS Code of Judicial Conduct must always be considered for judicial DOH GA-199 suggested municipal judge/finance director might violate Code GA-348 suggested municipal judge/county commissioner might violate Code Effect of PS Attorney General has not and will not rule on Code solely in discretion of State Commission on Judicial Conduct So if you have a DOH situation arise, always run it past the Commission! Haven t ruled yet on any other DOH situations 9

10 Before we go LO held that mayor could not serve as municipal judge (if both positions are paid), but could assume additional duties as magistrate Gov t Code (g) prevents municipal judge of court of record from being employed by same municipality For More Information Municipal Affairs Section: (512) Copies of Attorney General Opinions: Thank You for Coming! 10