Nielsen - Judicial Ethics and Conflicts

Wearing Many Hats: Conflicts of Interest and Dual-Office Holding

Presented By

Erik NielsenCommission Counsel

State Commission of Judicial Conduct

Richard OlivoMunicipal Judge (Former)

El Paso, Texas

Objectives

Participants will be able to:

Define Dual Office Holding, Conflict of Interest and Appearance of Impropriety

Identify three conflicts of interest from given hypotheticals

Analyze a hypothetical scenario for appearances of impropriety

Conflict of Interest vs. Dual-Office Holding

Conflict of Interest: A clash between a judge’s professional obligations and the personal interests of the judge or other person

Dual-Office Holding: a public servant holding two or more public offices of emolument (paid) at the same time

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Conflict of Interest vs. Dual-Office Holding

Dual-Office Holding: What is “Officer”

A public officer – unlike a public employee –exercises a sovereign function of government largely independent of the control of others for the public benefit

Does not have to be elected to be Public Office Holder – City Manager, City Secretary, etc.

Judicial Canons

Canon 4(D)(1): Judge shall refrain from financial and business dealings that tend to: reflect adversely on judge’s impartiality

interfere with proper performance of duty

exploit his judicial position

involve judge in frequent transactions with those that appear before the bench

Judicial Canons

*Canon 4(E)(1): Judge shall not serve as: executor

administrator

trustee

guardian

attorney in fact/fiduciary

Unless family and then ONLY if does not interfere

With other judicial duties BUT

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Judicial Canons

*Pursuant to Canon 6C(1)(b):

Compliance with Canon 4(E) is not required of Municipal Court Judges or

Justices of the Peace

Legal vs. Ethical

Note that there are times where an act taken by a judicial officer may be legal, yet still unethical

SCJC Public Statement PS-2000-1 Judges acting as peace officers – AG says not

DOH

SCJC says unethical because separation of powers and

Appearance of Impropriety – Public Distrust

Dual-Office Holdings

According to AG opinions: MJ and Board/River Authority?

MJ and Police Officer?

MJ and MJ in different City?

Part-time MJ and JP?

MJ and DA Polygraph Examiner?

Violation? Yes

No, but Yes

No

No

Unclear

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Why? Neither violates DOH

Conflict of Interest:

Both LEO and Poly. Examiner are Executive

Also, LEO carries Judge’s Commission?

So, Traffic Defendant feels fair?

Even Tenuous Conflict can be Appearance of Impropriety

Overall goal of the Texas Justice System is to preserve the integrity and independence of the judiciary.

Thus, if the public sees actions by a judge that appear to be improper, even if legal, it can bring public discredit

Appearance of Impropriety

AoI is enough to warrant recusal in some situations

Tex. R. Civ. P. 18b generally requires recusal with financial or fiduciary ties to case, but: (b)(1): The Judge’s impartiality might reasonably

be questioned.

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Texas Constitution, Art. V §1(a)(6)A

Any judge may be removed from office for willful or persistent violation of rules, incompetence, willful violation of the Code of Judicial Conduct or willfull or persistent conduct that is clearly inconsistent with the proper performance or duties or casts public discredit upon the judiciary or the administration of justice.

Hypothetical One

A municipal judge was previously a reserve deputy for a law enforcement agency that also carries his commission. However, the judge now (under a new TCOLE statute) carries his own commission. Could this be Dual-Office Holding?

Could this be a Conflict of Interest?

Could this be an Appearance of Impropriety?

Hypothetical Two

A municipal judge is also sitting on the community’s local school board. The school board position is unpaid.

Could this be Dual-Office Holding?



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Hypothetical Three

A municipal judge is also the sitting city secretary.




Hypothetical Four

A part-time municipal judge also works as a defense attorney. She has occasionally represented a defendant she had unknowingly magistrated, as she magistrates hundreds of defendants a year.




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Texas Dual Office holding lawsmade easy

Answers to the most frequently asked questionsabout the Texas Dual Office Holding Laws

zindia thomas

county affairs section

office of the attorney general(512)936-9901

julian grant

municipal affairs section


becky casares

county affairs section


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Index to Constitutional Dual Office Holding Issue Addressed Page Number 1. What is dual office holding..................................................................................................1

2. What does it mean “to hold two civil offices of emolument”..............................................1

3. What is considered an “office” ...........................................................................................2

4. Difference between a public employee and a public officer ...............................................2

5. What is considered an “emolument”....................................................................................3

6. Effect of refusal of “emolument”.........................................................................................3

7. Effect of taking on additional duties....................................................................................3

8. Effect of temporary service as an officer.............................................................................3

9. Ability to serve on an advisory board..................................................................................4

10. Public officers who are exempt from dual office holding limitations .................................4

11. Is a local law enforcement officer considered an “officer” .................................................4

12. Is a city attorney considered an “officer” ............................................................................5

13. Is a municipal court judge considered an “officer” .............................................................5

14. May a school district employee serve on a local governing body ......................................6

15. May a state employee serve on a local governing body .....................................................6

16. Ability of local entity to hire elected member of the Texas Legislature .............................7

17. Ability of local entity to hire elected member of the Congress ...........................................7

Index to Common–Law Incompatibility Determining Whether Two Offices are Incompatible 18. What is common-law incompatibility..................................................................................8

19. Difference between incompatibility and dual office holding limitations ............................8

20. Difference between incompatibility and conflict of interest limitations .............................8

21. Application of incompatibility if one position is not a public office...................................8

22. Application of incompatibility to outside private employment ...........................................9

23. Three general types of common-law incompatibility ..........................................................9

Prohibition Against Self-Appointment 24. Inability of local governing body to appoint its own members to a public office...............9

25. Effect of city charter, state or federal law on power to appoint.........................................10

26. Inability to adopt ordinance allowing incompatible appointments....................................10

27. Appointment of a local officer to a position that is not a “public office”..........................10

28. Appointment of a local officer to a position of another political subdivision ...................11

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Prohibition Against Self employment 29. Inability of governing body members to be same entity’s employee ................................11

30. Inability to hold two local staff positions if one reports to the other.................................11

31. Limited ability to hold two local staff positions if they do not report to each other .........12

Prohibition Against Conflicting Loyalties 32. What circumstances cause a “conflicting loyalties” problem............................................12

33. Both positions must be “public offices” for conflicting loyalties issue.............................12

34. Conflicting loyalties issue if authorized to contract with each other.................................13 35. Conflicting loyalties issue if boundaries of entities overlap..............................................13

36. Conflicting loyalties issue if there is ability to impose will on other ................................13

37. Inability of county commissioner to serve on city council ................................................14

38. Inability of school district trustee to serve on city council ................................................14

39. Inability of special district board member to serve on local governing body ...................14

40. Application of conflicting loyalties for officers not on the governing body .....................14

41. Ability of state law or city charter provision to permit incompatible offices or

forbid otherwise compatible ones ......................................................................................15

Consequences of Seeking/Accepting a Second Office 42. Acceptance of second office and automatic resignation....................................................15

43. Application of automatic resignation to two conflicting “public offices”.........................15

44. Effect of announcement of candidacy for other public office ...........................................16

45. Ability of local employee to run for public office .............................................................16

46. Ability of local official to run for Texas Legislature.........................................................16

47. No criminal penalties for holding two conflicting public offices......................................17 Charts noting prohibited dual office holding combinations ................................ 18-21

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2010 Texas Dual Office Holding Laws Made Easy $ Office of the Attorney General

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Dual Office Holding Limitations Made Easy Seventy percent of Texas cities, in addition to some counties, have a population of under 5,000 residents. Therefore, it is not surprising that when individuals are actively involved in their communities, they are often asked not only to hold one public office but to serve in several different public capacities. However, in certain situations, state law does not permit dual office holding. It is important that local officials understand in which circumstances they can agree to serve in another public office. This knowledge is particularly important because the acceptance of a second public office can result in an automatic resignation from a person=s current public office. The following questions and answers provide a lay person=s explanation of the dual office holding limitations that apply to local officials in Texas. The Municipal Affairs and County Affairs sections of the Office of the Attorney General are available to answer questions about this from public officials, who should nonetheless consult with their local legal counsel regarding the application of the law to the facts of each particular situation. This handbook offers guidance to officials of other public entities as well. The chart attached to the end of this summary is an overview of attorney general opinions and cases that have ruled on specific questions of whether two offices may be held simultaneously. It does not address each example entirely, since facts may be slightly different, nor does it address other dual office holding situations. 1. What is dual office holding? Dual office holding refers to certain limitations that prevent a person from holding two or more public offices at the same time. The restrictions on dual office holding are primarily derived from two sources:

1. Texas constitutional restrictions on holding two civil offices of emolument (see question # 2, below); and

2. Attorney general opinions and court cases that have found the dual holding of

certain offices to be incompatible and therefore invalid. As noted above, this issue is particularly important because the acceptance of a second public office can result in an automatic resignation from a person=s current public office. 2. What does it mean to hold “more than one civil office of emolument”? In basic terms, to hold “more than one civil office of emolument” means to hold two paid public offices. The prohibition against holding two civil offices of emolument is contained in Article XVI, section 40 of the Texas Constitution. It provides in part:

“No person shall hold or exercise at the same time, more than one civil office of emolument....”

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holding.

3. What is considered an “office” for purposes of dual office holding? To understand the prohibition against holding two civil offices of emolument, one must first understand what positions are considered “public offices.” A public officer, unlike a public employee, exercises a sovereign function of government largely independent of the control of others for the public benefit. This distinction recognizes the essential elements of public office: first, the officeholder=s authority to exercise governmental power for the benefit of the public; and second, the officeholder=s independence from the control of other governmental entities or officials. A mere employee does not hold a public office. Also, a person who holds a position with a private nonprofit association (e.g., a board member of a nonprofit association) is not considered a public officer for purposes of dual office holding.1 4. How can one determine whether a person is considered a public

“employee” or a public “officer”? Since only public offices raise constitutional dual office holding concerns, it is important to distinguish between positions that are considered a public office and positions that are simply public employment. The factor which differentiates an officer from an employee is whether the person is empowered to exercise a “sovereign” function of government that is largely independent of the control of others.2 For example, city council members and county commissioners are clearly officers since they exercise sovereign functions of government (e.g., they adopt policies and rules regarding public policy) that are largely independent of the control of others. However, an assistant district attorney,3 a jailer,4 a chief deputy of a county tax assessor-collector,5 and a volunteer fireman6 have all been found not to hold a public office because their duties are not exercised largely independent of the control of others. Similarly, city attorneys have been held not to be Aofficers@ for purposes of dual office 7

A person does not have to be elected to a position to be considered an officer. For example, the Texas Local Government Code and most home rule charters state that the city manager, city secretary, and certain other city department heads are considered officers. However, the city should visit with its local legal counsel to determine whether such positions would be considered offices for purposes of the constitutional limitation on dual office holding.

1 Op. Tex. Att=y Gen. No. DM-303 (1994). 2 Aldine Independent School District v. Standley, 280 S.W.2d 578 (Tex. 1955). 3 State ex rel., Hill v. Pirtle, 887 S.W.2d 921, 931 (Tex. Crim. App. 1994); Tex. Att=y Gen. LO- 96-148. 4 Op. Tex. Att=y Gen. No. JM-1047 (1989). 5 Op. Tex. Att=y Gen. No. JM-1083 (1989). 6 Op. Tex. Att=y Gen. No. JC-385 (2001). 7 Op. Tex. Att=y Gen. No. JC-54 (1999).

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5. What is considered to be an “emolument” for purposes of holding “civil offices of emolument”?

The constitutional provision regarding dual office holding generally prevents a person from holding two civil offices of emolument. In basic terms, an “emolument” is either pay or some other benefit, compensation or thing of value received in exchange for the person=s service as an officer. For example, an emolument could involve the provision of free or reduced utility service charges, a set per diem for each meeting that is attended, complimentary health insurance, or some other type of compensation or benefit for serving in a public office. However, the mere reimbursement of a local officer for actual government-related expenses (e.g., the cost of meals or actual mileage) is not considered to be an emolument if the reimbursement is limited to the amount contained in actual receipts or other proof of expenditures. If a person is paid a set amount and that amount is not limited to actual expenditures, it would constitute an emolument for dual office holding purposes.8 6. May a person refuse the “emolument” (the pay or benefits of an office)

to avoid holding two civil offices of emolument? No, if a state statute or a city ordinance fixes a salary or other form of compensation for an office, the compensation attaches to and is inseparable from the office.9 Generally, an officer cannot return the pay or benefits of the second office, or simply refuse to accept them, to avoid being considered to hold two civil offices of emolument. Likewise, a governmental entity cannot simply eliminate the pay or benefit to a local officer to avoid a dual office holding issue.10 7. If a public officer takes on additional duties, does this create a second

office in violation of dual office holding limitations? No, simply taking on additional duties does not necessarily create a second office in violation of dual office holding limitations.11 8. Is a person considered an “officer” if he serves for only a temporary

period as an officer? If a person takes a position that is merely temporary, it is usually not considered to be a second office for dual office holding purposes.12 In order for a position to be considered an office, it must have duties that are continuing in nature rather than temporary or intermittent. For example, a court ruled that the temporary performance of the mayor=s duties by a mayor pro tem during an interim period before a special election to fill the mayor=s position did not constitute dual office holding. 13

8 Op. Tex. Att=y Gen. No. JM-594 (1986), Willis v. Potts, 377 S.W.2d 622 (Tex. 1964); Op. Tex. Att=y Gen. No.

JM-704 (1987); Tex. Att=y Gen. LO-93-33. 9 Markwell v. Galveston County, 186 S.W.2d 273 (Tex. Civ. App.—Galveston 1945, no writ); Op. Tex. Att=y

Gen. JM-704 (1987). But see Op. Tex. Att=y Gen. No. GA-250 (2006) (Texas Government Code section 574.005(b) allows local officer to serve on state agency governing body without compensations and thus detaches compensation from office).

10 Broom v. Tyler County Comm=rs Court, 560 S.W.2d 435 (Tex. Civ. App.—Beaumont 1977, no writ). 11 Op. Tex. Att=y Gen. No. DM-55 (1991). 12 Tex. Att=y Gen. LO- 96-81; Op. Tex. Att=y Gen. No. JM-847 (1988). 13 De Alejandro v. Hunter, 951 S.W.2d 102, 107 (Tex. App.—Corpus Christi 1997, no pet.).

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9. Is a person considered an “officer” if they serve on a purely advisory

board that has no final power? A person who serves in a merely advisory capacity or on a purely advisory board is not considered an officer for purposes of the dual office holding limitations. However, it is important to note that if the board has any rule making or quasi-judicial powers, or the board=s recommendations are generally approved in whole by another governmental entity, it is not likely that the board would be found to be purely advisory. 10. Are certain public officers exempt from the dual office holding

limitations? The Texas Constitution provides that certain public officers are exempt from the constitutional dual office holding limitations.14 Such officers include:

1) Justices of the peace; 2) County commissioners; 3) Directors of certain soil and water conservation districts15; and 4) Notaries public

The officers listed above are not subject to the constitutional limitation against holding two civil offices of emolument.16 However, the constitution is only once source of the limitations on dual office holding. Another limitation, called the “doctrine of incompatibility,” might still prevent an officer from holding a second office if the second public office would be considered incompatible with the first office.17 For example, a county commissioner cannot serve as a city council member at the same time. The standards for determining whether two public offices are incompatible are discussed further in questions # 18-23 of this article. 11. Is an ordinary law enforcement officer considered an “officer” for

purposes of dual office holding? Under most circumstances, an ordinary law enforcement officer is not considered an officer for purposes of constitutional dual office holding limitations.18 Therefore, it is possible that a city police officer or deputy sheriff could hold another public office if the two offices were not considered incompatible. For example, a city police officer is not prevented from serving as an elected city council member for a different city within the same county.19 A police officer employed by a municipality also is not prohibited from serving as a municipal judge in a different city, either

14 TEX. CONST. art. XVI, ' 40. 15 This is a very limited exception and only applies to districts covered by Chapter 201 of the Agriculture Code.

Neither a river authority, nor a drainage district, nor a water conservation and reclamation district are covered by this exception. Op. Tex. Att=y Gen. No. JM-172 (1984); Tex. Att=y Gen. LA-150 (1978).

16 For example, a justice of the peace could serve as a municipal court judge at the same time. Op. Tex. Att=y Gen. No. JM-819 (1987).

17 Tex. Att=y Gen. LO-96-4. 18 Op. Tex. Att=y Gen. No. DM-212 (1993); Tex. Att=y Gen. LO- 95-48; LO-93-27. 19 Tex. Att=y Gen. LO-93-27; LO-95-48.

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within the same county or in another county. 20 However, the State Commission on Judicial Conduct (“Commission”) issued a public statement stating that though it might be legal for a judge to also be a police officer or law enforcement officer, ethically it is not.21

AIn issuing this Public Statement, the Commission recognizes the existence of Attorney General Letter Opinion No. 92-35 (1992), which discusses the legality of serving in both roles. However, the Commission notes that an act that is legal is not necessarily an act that is ethical. Judges are members of the judicial branch of our government. Law enforcement officers are part of the executive branch. Each branch is separate from, but co-equal with, the other. Therefore, the Commission concludes that any judge who attempts to serve both branches cannot accomplish the task without impairing the effectiveness of one or both positions.@22

12. Is a city attorney an “officer” for purposes of dual office holding? Under most circumstances, a city attorney is not considered an officer for purposes of constitutional dual office holding limitations.23 Therefore, it is possible for a city attorney to hold another public office if the two offices are not considered incompatible. For example, a lawyer may serve as the city attorney for several Texas cities at the same time without violating dual office holding provisions. 13. Is a municipal court judge an “officer” for purposes of dual office

holding? A municipal court judge is considered an “officer” for purposes of dual office holding.24 However, appointed municipal court judges may hold more than one such appointment, provided the holding of the second office is “of benefit to the State.”25 In 1997, the legislature specifically provided in Government Code Section 574.001 (b) that a person may hold an appointed office of municipal judge for more than one city at the same time. To hold multiple municipal court judgeships, each office must be one that is filled by appointment. The legislature found that the holding of multiple municipal court judgeships was of benefit to the state.26

20 Tex. Att=y Gen. LO-93-59. 21 State Commission on Judicial Conduct PS-2000-1. 22 Id. 23 Op. Tex. Att=y Gen. No. JC-54 (1999). 24 Op. Tex. Att=y Gen. Nos. JM-333 (1985); DM-428 (1996). 25 Op. Tex. Att=y Gen. No. DM-428 (1996). 26 TEX. GOV=T CODE ANN. ' 574.001 (b) (Vernon 2004).

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14. May a school district employee (such as a school teacher) also serve as a member of a local governing body?

Dual office holding limitations do not prevent a school district employee from serving as a member of a local governing body.27 However, the Texas Constitution does limit the ability of some school district employees to accept any compensation for serving as a board member. Article XVI, section 40 of the Texas Constitution provides that if the compensation of a public employee is directly or indirectly funded in whole or in part from state funds, the public employee may not receive any compensation for his service as a member of the governing body of a city, school district or other local government district. This section was amended in 2001 to allow school teachers, retired school teachers, and retired school administrators to receive compensation for serving as a member of a governing body of a school district, city, local governmental district, and certain water districts. The term “school teacher” does not include a state university professor or instructor.28 As for other school district employees, since their pay is received in part from state funds, such employees would be prohibited from accepting any compensation for serving as board members (other than reimbursement for actual expenses).29 However, a person who receives only state retirement benefits is not required to renounce his or her salary for service on a board.30 15. May a state employee also serve as a member of a local governing body? Dual office holding limitations do not prevent state employees from serving as members of a local governing body. However, the Texas Constitution does limit the ability of a state employee to accept any compensation for serving as a board member. Article XVI, section 40 of the Texas Constitution provides that if the compensation of a public employee is directly or indirectly funded in whole or in part from state funds, the public employee cannot receive any compensation for his or her service as a member of the governing body of a city, school district or other local government district.31 Since the pay of a state employee is received from state funds, such an employee would be prohibited from accepting any compensation for serving as a board member (other than reimbursement for actual expenses).32 Nonetheless, a person that receives only state retirement benefits is not required to renounce his or her salary for service on a local board.33

27 See Op. Tex. Att=y Gen. Nos. DM-55 (1991); JC-74 (1999) (school teacher or school administrator is not an

office). Ruiz v. State, 540 S.W.2d 809, 811 (Tex. Civ. App.—Corpus Christi 1976, no writ). 28 Op. Tex. Att=y Gen. No. JC-577 (2002). In 2003, a constitutional amendment allowed active and retired faculty

members of public institutions of higher education to receive compensation while serving on the governing body of certain water districts.

29 Tex. Att=y Gen. LO-95-1; LO-93-33; Op. Tex. Att=y Gen. No. JC-74 (1999). 30 Tex. Att=y Gen. LO-93-041. 31 It should be noted that an elected member of the commissioners court is not covered by this constitutional

provision and could therefore receive both compensation from the state and a salary for serving on the commissioners court. County of Maverick v. Ruiz, 897 S.W.2d 843 (Tex. App.—San Antonio 1995, no writ).

32 Tex. Att=y Gen. LO-95-1; LO-93-33. 33 Tex. Att=y Gen. LO-93-41.

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16. May an elected member of the Texas Legislature be hired to work for a local government?

The final sentence in article XVI, section 40 of the Texas Constitution states:

No member of the Legislature of this State may hold any other office or position of profit under this State, or the United States, except as a notary public ...@

The above limitation prevents a member of the Texas Legislature from holding an office or “position of profit” with the State or with the United States. A position of profit is defined as a “salaried non-temporary employment.”34 Accordingly, a member of the Texas Legislature could not serve as a local officer or be hired as a local employee. He or she could also not simply take a leave of absence from local office or employment during the legislative session.35 However, this constitutional provision would not prevent a local entity from contracting with a Texas legislator to serve as an independent contractor for the city.36 For example, in certain cases, the entity may contract with a Texas legislator to provide certain consulting services. 17. May an elected member of Congress or other federal “officer” serve as a

local officer or employee? Article XVI, section 12 of the Texas Constitution states:

No member of Congress, nor person holding or exercising any office of profit or trust under the United States . . . shall . . . exercise any office of profit or trust under this state.

The above limitation prevents a member of Congress or other federal “officer” from holding an office of profit or trust in this state. An office of profit or trust would include local offices. Accordingly, a member of Congress or a federal officer could not serve as a local officer. The officer could also not simply take a leave of absence from office during the congressional session. However, this constitutional provision would not prevent a local entity from hiring a member of Congress or a federal officer as an employee. Likewise it would not prevent a local entity from contracting with a member of Congress or a federal officer to serve as an independent contractor for the entity.37 For example, in certain cases, the entity may contract with a congressman or a federal officer to provide certain consulting services.

34 Op. Tex. Att=y Gen. Nos. JC-430 (2001); H-1304 (1978). 35 Tex. Att=y Gen. LO-90-55. 36 Op. Tex. Att=y Gen. No. H-1304 (1978); Tex. Att=y Gen. LO-95-22; LO-93-31. 37 Id.

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Determining Whether Two Offices are Incompatible 18. What is common-law incompatibility? Common-law incompatibility refers to the prohibition against a person holding certain public offices at the same time because of the practical conflicts of interest that might arise. For example, the doctrine of incompatibility prevents a person from holding two public offices if a person could use the power in one office to impose policies that impact the other office. Common-law incompatibility also may be implicated if there is the potential that a person’s actions in one office could control the other office. The concept of common-law incompatibility is derived from a series of court cases and attorney general opinions that have prohibited the holding of multiple public positions in particular situations. Whether the holding of two public offices would violate common-law incompatibility requires a factual consideration of the duties of each position and must be considered on a case-by-case basis. 19. How is incompatibility different from constitutional dual office holding

limitations? Common-law incompatibility is a restriction on dual office holding, just like the particular restrictions contained in the Texas Constitution. The difference between the two is their source – one is from “common law,” which is a series of court cases and attorney general opinions, while the other is from the Texas Constitution, a single document describing the function and structure of state government. The simultaneous holding of two public offices may be prohibited under either the constitutional restriction against holding two civil offices of emolument or under common-law incompatibility standards that apply to holding two incompatible positions. 20. How is incompatibility different from conflict of interest limitations? Common-law incompatibility occurs when there are inherent conflicts in one person holding two particular public positions at the same time. Conflict of interest limitations, on the other hand, do not involve the holding of two positions at the same time. Rather, conflict of interest limitations simply involve one=s authority to deliberate or vote on an issue when that person has a financial interest in a particular item. 21. Does common-law incompatibility apply only if both of the positions are

public offices or public employment? Yes, common-law incompatibility applies only if both of the involved positions are considered public offices or public employment.38

38 Op. Tex. Att=y Gen. Nos. DM-303 (1994); DM-194 (1992).

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22. Does common-law incompatibility apply to the authority of a local officer to hold outside private employment?

Common-law incompatibility does not apply to the authority of a local officer to hold outside private employment.39 In other words, the fact that a person is employed by a company that does business with a local entity does not prevent a person from holding an office with that entity. Nonetheless, such an officer would generally need to comply with Local Government Code chapter 171 conflict of interest requirements prior to deliberating or voting on certain items that have a special economic effect on that business entity and chapter 176 which requires local officials and vendors to fill out proper disclosure forms.40 23. What are the three general types of common-law incompatibility? The three types of common-law incompatibility are:

1) self-appointment prohibition: Prevents a governing body from appointing one of its own members to a public office;

2) self-employment prohibition: Prevents a governing body from employing

one of its own members as a public employee; and

3) conflicting loyalties prohibition: Prevents a person from holding two public offices when the interests of the two entities may conflict and when voting on behalf of one public entity would possibly compromise the interests of the other public entity. In other words, the official would have to choose between the conflicting interests of the two public entities, giving rise to conflicting loyalties.

Self-Appointment 24. May a local governing body appoint one of its own members to a public

office or position? The prohibition against self appointment prevents a local governing body from appointing one of its own members to a public office or position.41 Attorney general opinions have held this to apply to school boards42 and county commissioners courts.43 Additionally, the attorney general has interpreted this principle to prohibit a city council from appointing or approving the appointment of

39 Tex. Att=y Gen. LO-96-109; Op. Tex. Att=y Gen. No. JM-93 (1983). 40 TEX. LOC. GOV=T CODE ANN. '' 171.001B171.010; 176.001B176.010 (Vernon 2008). 41 Ehlinger v. Clark, 8 S.W.2d 666 (Tex. 1928). 42 Op. Tex. Att=y Gen. No. GA-377 (2005). The application of this doctrine was modified in the case of cities to

allow a city council to appoint one of its members to be mayor in case of vacancy, provided the member appointed does not vote on the appointment. TEX. LOC. GOV=T CODE ANN. '' 22.01(a-1); 23.002(b); 24.026(a); 26.047 (Vernon 2008).

43 Op. Tex. Att=y Gen. No. C-452 (1965).

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one of its own members as a police reserve officer.44 Although the reserve officer is initially appointed by the police chief, the city council must ultimately approve his appointment. Because of the city council=s power to appoint the reserve members, a member of the city council may not serve on the city=s police reserve. 25. May a local governing body appoint one of its own members to a public

office or position if the appointment is authorized by the city charter or by a state or federal statute?

The prohibition against self appointment may be overcome by a city charter provision or a state or federal law that allows a city to appoint one its own members to a particular public office. For example, the Development Corporation Act allows a city council to appoint up to four city officers to serve as directors of a Type B economic development corporation.45 Therefore, the city council could appoint its own members to these positions without creating a self-appointment problem. Additionally, chapter 311 of the Tax Code allows members of the governing body to be appointed to the board of directors of a tax increment financing corporation by that same body.46 26. May a local governing body appoint one of its own members to a public

office or position if the appointment is authorized by an ordinance or local policy?

A local entity may not rely on an ordinance or its own adopted policy to overcome the prohibition against self appointment. The entity must be able to point to a state or federal law or a city charter provision (in the case of home rule cities) that allows the local governing body to appoint its own members to a public office.47 27. Does the self-appointment prohibition limit a local governing body from

appointing its own officer to a position that is not a Apublic office@? The prohibition against self appointment does not limit the authority of a local governing body to appoint its own officer to a position that is not a public office. For example, a city council or county commissioners court could appoint its own members to serve on an advisory committee if the advisory committee members are considered volunteers and not officers. However, there is another doctrine called the prohibition against self employment that would prevent these governing bodies from appointing their own members to a position that amounted to employment by the local entity.

44 Op. Tex. Att=y Gen. No. JM-386 (1985). 45 TEX. LOC. GOV=T CODE ANN. ' 505.052 (Vernon Supp. 2008). 46 Op. Tex. Att=y Gen. No. GA-169 (2004). 47 See Op. Tex. Att=y Gen. No. JM-1087 (1989) (holding a city charter provision which was not contrary to a

specific state law was sufficient to overcome the doctrine of incompatibility).

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11

28. May a local governing body appoint one of its own members to a public office or position of another political subdivision if the appointment is authorized by an ordinance or local policy?

No, an ordinance or local policy may not authorize a local governing body to appoint one of its own to public office or position of another political subdivision.48 Even though a home-rule city may overcome the common-law doctrine of incompatibility through a city charter provision, it cannot overcome the common-law principle when one of the offices is that of another political subdivision.49 Only the legislature may exempt a city=s appointment to the board of another governmental unit from the common-law doctrine of incompatibility.50

Self-Employment 29. May a member of a local governing body also serve as an employee of the

local entity? A member of a local governing body may not simultaneously serve as an employee of his/her entity.51 For example, a city council could not appoint one of its current members to also serve as the city manager, city department head, or even a rank and file city employee (unless specifically permitted by the city charter). However, since a volunteer fireman is not an employee of the city, a volunteer fireman may generally serve on the city council.52 (A city council member would not be able to serve as both fire chief and city council member.53) Additionally, a city council member of a general law city may not also serve as a member of the city=s police reserve.54 30. May a person hold two local staff positions if one position would report to

the other position? The self-employment prohibition would prevent a person from holding two local staff positions if one position would report to the other position. For example, a city manager may not also serve as the city=s police chief if the city manager has supervisory authority over the chief.55 However, the self-employment provision does not prohibit a local official from taking on certain duties that a subordinate staff member would normally perform. For example, in certain cities, the municipal court judge also handles administrative functions that would generally be handled by a municipal

48 Op. Tex. Att=y Gen. No. JC-225 (2000). 49 Id.; Tex. Att=y Gen. LO-94-20. 50 Op. Tex. Att=y Gen. No. JC-225 (2000). 51 Tex. Att=y Gen. LO-97-34. 52 Tex. Att=y Gen. LO-94-70; LO-93-54. However, if the volunteer fireman was also the chief of the volunteer fire

department and in this capacity has responsibility for producing the budget, the chief may not under certain circumstances be permitted to also serve on the city council. If volunteer firemen are deemed employees of the city, then the city council must adopt a resolution allowing a city council member to serve as a fireman. See Op. Tex. Att=y Gen. No. JC-199 (2000); TEX. LOC. GOV=T CODE ANN. ' 21.003 (Vernon 2008) (adopted in response to JC-199).

53 Op. Tex. Att=y Gen. No. MW-432 (1982). 54 Op. Tex. Att=y Gen. No. JM-386 (1985). 55 Tex. Att=y Gen. LO-89-2.

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court clerk. If the judge only has one title and is compensated for only one position, this scenario would not violate the prohibition against self employment. 31. May an individual hold two local staff positions if one position would not

report to the other position? A person may hold two local staff positions that would not report to each other if the person is compensated for only one position. For example, in certain smaller cities, a person sometimes serves as both the city secretary and the city treasurer. Similarly, it is permissible for a city secretary to also serve as the city tax assessor/collector. Because the offices do not report to each other, there is no self-employment problem. Also, such dual capacities would not present a dual office-holding problem because neither position is an Aoffice@ for purposes of Article XVI, section 40 of the Texas Constitution.

Conflicting Loyalties 32. If a person holds two positions or offices, what circumstances could cause a

conflicting loyalties problem? Conflicting loyalties prevent a person from simultaneously holding two public offices when the interests of the two public entities may conflict and when voting on behalf of one public entity would possibly compromise the interests of the other public entity. In other words, the official would have to choose between the conflicting interests of the two entities and, thus, would have conflicting loyalties. For example, a person may not serve on the city council at the same time that he serves as a school board trustee because both the city council and the school board may be adopting policies on some of the same issues.56 If the city council exercises its authority over school district property within the city, the council member must be free to vote on what is the best interest of the city, which may not coincide with the best interest of the school district. Accordingly, the courts and the Office of the Attorney General have generally ruled that a person may not hold two public offices where the inherent policy objectives between the two offices are likely to conflict in certain areas. The incompatibility doctrine protects the integrity of government institutions by promoting impartial service by public officials.57 33. Must both positions be considered “public offices” for there to be a

conflicting loyalties issue? Yes, for there to be a conflicting loyalties issue, both positions must be “public offices.”58 Therefore, the fact that a public officer holds a particular outside employment would not present a conflicting loyalties issue. Similarly, the fact that a person may work as an employee for a different public entity would not present a conflicting loyalties issue that would prevent the person from holding a public office.

56 Thomas v. Abernathy County Line Indep. Sch. Dist., 290 S.W. 152 (Tex. Comm=n App.1927, judgm=t adopted). 57 Op. Tex. Att=y Gen. No. JM-203 (1984). 58 Op. Tex. Att=y Gen. No. JM-1266 (1990); Tex. Att=y Gen. LO-96-148; LO-95-52; LO-95-29; LO-93-27.

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34. May an individual hold offices on two governing bodies if the entities are authorized to contract with each other?

If the governing bodies of two entities are authorized to contract with each other, one person generally may not serve as a member of the governing body of both entities.59 It was partly on this basis that the attorney general ruled that a county commissioner may not serve as a city council member60 and that a county auditor may not serve as a city council member.61 35. May an individual hold offices on two governing bodies if the geographical

boundaries of the two governmental bodies overlap? An individual often may not hold offices on two governing bodies if the geographic boundaries of the two governmental bodies overlap.62 The fact that the boundaries of the two entities overlap raises the potential for conflicting loyalties. If both entities have the power of taxation, the attorney general has held that the potential for conflict is insurmountable.63 Whether any particular conflict would prohibit the holding of both offices is a fact issue that must be considered on a case-by-case basis. For example, a justice of the peace is not barred from serving as a municipal court judge for a city merely because the city is located in the same precinct.64 A local entity should seek advice from its local legal counsel regarding whether the overlapping boundaries and other relevant facts regarding the duties of the two offices are likely to lead to conflicting loyalties. 36. May an individual hold offices on two governing bodies if one

governmental body has some authority to impose its will on the other governmental body?

An individual often may not hold offices on two governing bodies if one governmental body has some authority to impose its will on the other governmental body.65 Whether one public entity could impose its will on the other public entity is a fact issue that must be determined on a case-by-case basis. In such situations, a local entity should seek advice from its local legal counsel regarding whether the potential for one body to impose its will on the other is likely to lead to conflicting loyalties.

59 Op. Tex. Att=y Gen. Nos. GA-15 (2003); JM-1266 (1990); JM-133 (1984); Tex. Att=y Gen. LO-95-52; LO-92-4;

LO-90-18; LO-88-49. 60 Op. Tex. Att=y Gen. No. GA-15 (2003); Tex. Att=y Gen. LO-88-49. 61 Op. Tex. Att=y Gen. No. JM-133 (1984). 62 Op. Tex. Att=y Gen. Nos. GA-307 (2005); GA-224 (2004); GA-32 (2003); JC-557 (2002); JM-1266 (1990); JM-

129 (1984). 63 Op. Tex. Att=y Gen. No. JC-557 (2002). 64 Op. Tex. Att=y Gen. No. JM-819 (1987). 65 Thomas, 290 S.W. at 153; Op. Tex. Att=y Gen. No. JM-129 (1984).

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37. May an individual serve on a county commissioners court and a city council at the same time?

A county commissioner may not also serve as a city council member because the incompatibility of holding the two positions at the same time.66 38. May an individual serve as a school district trustee or a junior college

district trustee and a city council at the same time? A school district trustee may not serve as a city council member at the same time if the two political subdivisions share any overlapping geographical jurisdiction. In such cases, the attorney general has concluded that the doctrine of incompatibility prevents one person from holding both positions.67 Similarly, a trustee of a junior college district generally cannot serve on the governing body of a city in which the junior college is located or in which property is owned or operated by the junior college.68 Additionally, a single individual may not serve as county attorney and as a member of the board of trustees of an independent school district located in the same county.69 39. May an individual serve as a member of a special district and a member of

a local governing body at the same time? In most situations, it is incompatible for a board member of a special district to serve as a member of a local governing body at the same time. In such situations, the local entity should work with its legal counsel to determine whether a conflict may exist due to the existence of overlapping boundaries, the authority to contract with each other, or the potential for one body to impose its will on the other. Whether holding both offices is likely to present a conflict and would prohibit the holding of both offices is a fact issue that must be determined on a case-by-case basis. 40. If an individual holds a public office but is not on the governing body, are

they subject to a conflicting loyalties prohibition? If a person holds a public office but is not a member of the governing body, it is still possible that there may be a conflicting loyalties prohibition. For example, the attorney general ruled that a county attorney (even though they are not on the governing body of the county commissioners court) could not also serve on the school board as a trustee. This conclusion was based in part on the likelihood of conflicting loyalties that would be present because the county attorney is authorized to investigate matters involving school board trustees.70 Similarly, it has been held that a county auditor may not serve on the city council of a city within the county because the auditor=s duties regarding real property and the transfer of funds may present a conflicting loyalties problem.71 Conversely, it has been held that a county treasurer may serve as a school board trustee despite some

66 Op. Tex. Att=y Gen. No. GA-15 (2003); Tex. Att=y Gen. LO-88-49. 67 Op. Tex. Att=y Gen. No. JM-634 (1987). 68 Tex. Att=y Gen. LO-92-5. 69 Tex. Att=y Gen. LO-95-29. 70 Id. 71 Op. Tex. Att=y Gen. No. JM-133 (1984).

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tate law.

potential areas of conflict, in part because the treasurer does not have exclusive authority to sue the school district for debts.72 41. May a state statute or city charter provision permit what would otherwise

be considered incompatible offices under common law? May it forbid otherwise permissible arrangements?

The common-law doctrine of incompatibility may be overcome by a state statute or by a city charter provision that allows the person to hold two different positions. For example, the Texas Tax Code specifically allows a tax assessor/collector to also serve on the board of directors of an appraisal district. Without such statutory authority, the two offices would likely be considered incompatible because of potential conflicting loyalties. Similarly, a city charter provision could provide that the mayor may also serve as the city manager.73 On the other hand, a city charter may forbid a municipal judge from serving as a justice of the peace, even though this arrangement is normally compatible with s 74

Consequences of Seeking/Accepting a Second Office 42. Does acceptance of a second incompatible office operate as an automatic

resignation from the first office? Qualification and acceptance of a second incompatible office generally operates as an automatic resignation from the first office.75 In other words, if a person accepts and is sworn into a second office that would conflict with the first public office, the person is deemed as a matter of law to have resigned from the first public office. It should be noted that automatic resignation only operates as a matter of law when either: 1) a public officer accepts a second public office that is a paid position (in contravention of the constitutional prohibition against holding two offices of emolument); or 2) a person accepts a second public office that would present a conflicting loyalties problem under common-law incompatibility. There is no automatic resignation from the first office, however, when a dual office holding problem is due to self appointment. In that case, the acceptance of a second position that amounts to self appointment would be considered void as a matter of law but it would not affect one=s ability to remain in the original public office.76 43. Does automatic resignation only apply to two conflicting positions that are

both “public offices”? Yes, the automatic resignation applies only to two conflicting positions that are both public offices. In other words, if a person accepts and is sworn into a second office that would conflict with the first public office, the person is usually deemed as a matter of law to have resigned from the first public

72 Op. Tex. Att=y Gen. No. JC-490 (2002). 73 Op. Tex. Att=y Gen. No. JM-1087 (1989). 74 Op. Tex. Att=y Gen. No. GA-362 (2005). Other legal considerations may affect such charter provisions,

however. Id. n.2. 75 Pruitt v. Glen Rose Indep. Sch. Dist, 84 S.W.2d 1004 (Tex. 1935). 76 Ehlinger v. Clark, 8 S.W.2d 666 (Tex. 1928).

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office. However, if the person accepts a second position that is a mere employment, no automatic resignation would occur.77 44. May an elected official retain his/her office if they announce his/her

candidacy for another public office? Whether an elected official can retain his/her office when he/she announce his/her candidacy for another office depends on the law that applies to the office that is being vacated and the office that is being sought. In certain cases, the Texas Constitution provides that announcement for one office results in an automatic resignation from a person=s current office. For example, if a city council member has a term of office of more than two years and he announces for another public office, the announcement would result in his/her resignation as a council member if he/she still had more than a year left in his/her city council term.78 The resigned official holds over in office, however, until a successor is appointed.79 45. May a local employee retain his/her job if he/she announce his/her

candidacy for public office? Whether a local employee may retain his/her job while running for public office depends upon a consideration of certain factors. Courts in addressing this issue have to balance the employee=s right to run for office against the local governmental body=s interest, as an employer, in promoting the efficiency of the public services it performs through its employees.80 In certain situations, requirements that an employee must resign in order to run for office have been held to be invalid by the courts. This analysis is in reality a sliding scale upon which Apublic concern@ is weighed against disruption of the work environment. Before a local employee runs for office, he/she may want to visit with his/her employer and with legal counsel on this issue. 46. May a local official run for the Texas Legislature if that office term

overlaps with the upcoming legislative term? Article III, section 19 of the Texas Constitution provides:

No judge of any court, Secretary of State, Attorney General, clerk of any court of record, or any person holding a lucrative office under the United States, or this State, or any foreign government shall during the term for which he is elected or appointed, be eligible to the Legislature.

This Constitutional provision applies to any holder of a Alucrative office@ who wants to run for the Texas Legislature. Courts interpreting this provision have held that Article III, section 19, of the Texas Constitution will not disqualify a local official from running for the Texas Legislature even

77 Tex. Att=y Gen. LO-89-57. 78 TEX. CONST. art. XI, ' 11; Op. Tex. Att=y Gen. Nos. JM-553 (1986); JC-293 (2000); JC-318 (2000); JC-403

(2001). 79 TEX. CONST. art. XVI, ' 17; Op. Tex. Att=y Gen. Nos. DM-377 (1996); JC-293 (2000); JC-318 (2000); JC-403

(2001). 80 Connick v. Myers, 461 U.S. 138 (1983); Pickering v. Board of Education, 391 U.S. 563 (1968); Vojvodich v.

Lopez, 48 F.3d 879 (5th Cir. 1995); Click v. Copeland, 970 F.2d 106, 111 (5th Cir. 1992).

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though the local office term overlaps with the legislative term. Nonetheless, the local official must resign from his office before filing for the legislature.81 Failure to resign from the local position prior to filing for the legislature will result in the official being ineligible to run for the legislative seat. In a recent case, the Texas Supreme Court held that a school board officer who received no compensation except reimbursement for expenses such as meals did not hold a lucrative office.82 47. Are there criminal penalties for holding two conflicting public offices or

other types of prohibited dual office holding? State law does not provide criminal penalties for holding two conflicting public offices or for other types of prohibited dual office holding. The means for challenging such violations would be through a civil action in a district court.

81 Wentworth v. Meyer, 839 S.W.2d 766 (Tex. 1992); Tex. Att=y Gen. LO-95-69. 82 In re Carlisle, 209 S.W.3d 93 (Tex. 2006).

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MAY PARTICULAR DUAL OFFICE BE HELD BY AN INDIVIDUAL?

CITY COUNCIL OFFICE

OFFICE

YES/NO

REASON

AUTHORITY

City council

Member of fire department

No

Incompatible

LO 97-034

City council

Police officer (different city)

Yes

Not incompatible

LO 93-27

City council

Teacher at state college

Yes

Article XVI, ' 40 does not preclude if council member=s salary is renounced

LO 93-37

City council

Chairman, board of director of university research foundation (non-profit corporation) (same city)

Yes

Allowed under Article XVI, ' 40

JM-1065

City council

County commissioner

No

Incompatible

GA-15; LO 88-49

City council

School trustee, state college

No

Incompatible

LO 93-22; Thomas v. Abernathy County Line Indep.Sch.Dist.,290 S.W. 152

City council

Volunteer fire department (same city)

Yes

Not incompatible because city funds do not control

JC-199; see TEX. LOC. GOV=T

CODE ANN. ' 21.003 (adopted in response to JC-199).

City council

Director of a flood control district

Yes

Not incompatible

LO 96-064

City council

School board trustee (same city)

No

Incompatible

JM-634; JC-403

City council

Director of a county water authority

No

Incompatible

LO 92-68

City council

County special district employee

Yes

County special district employee is not a civil office under Article XVI, ' 40

JM-1266

City council

School district employee

Yes

May serve if do not receive compensation for council position

JM-118; MW-230; JM-1266

City council

Director of a navigation district

Yes

May serve if do not receive compensation for council position, not incompatible

JM-1266

City council

Reserve police officer

No

Incompatible

JM-386

City council

County auditor

No

Incompatible

JM-133

City council

Fire chief (same city)

No

Incompatible

MW-432

City council

Selective service board member

Yes

Article XVI, ' 12

GA-57; allowed as long as selective service system is on standby (no draft)

City council

Justice of the peace

No

Article XVI, ' 65

JM-395

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FIRE DEPARTMENT OFFICE

OFFICE

YES/NO

REASON

AUTHORITY

Assistant fire chief

Deputy constable

Yes

Not incompatible & assistant fire chief is not a civil office under Article XVI, ' 40

DM-156

City council


No

Incompatible

MW-432

City council

Volunteer fire department (same city)

Yes

Not incompatible because city funds do not control

LO-94-070; JC-199; see TEX. LOC. GOV=T CODE ANN. ' 21.003 (adopted in response to JC-199)

Member fire department

City commissioner

No

Incompatible

LO-97-034

Building inspector


Yes


State ex rel. Beicker v. Mycue 481 S.W. 2d 476

JUDGES

OFFICE

OFFICE

YES/NO

REASON

AUTHORITY

Municipal judge

Board of directors river authority

No

Article XVI, ' 40

LO-97-027

Police officer

Municipal judge (different city)

Legally yes, but

no

Not incompatible by law but unethical

LO-93-59. However, see State Commission on Judicial Conduct PS-2000-1

Municipal judge

Municipal judge (different city) Yes Article XVI, ' 40

DM-428 said no;

Municipal judge

Elected junior college trustee

Yes

Not incompatible

JC-216

Part-time Municipal judge

Justice of the peace Yes Not incompatible

JM-819

City finance director

Temporary municipal judge Yes Not incompatible

GA-199

County commissioner

Municipal judge

Yes

Not incompatible

GA-348

Polygraph examiner for district attorney=s office

Municipal judge

Unclear

State Commission on Judicial Conduct PS-2000-1 may control

GA-551

County EMS employee

Municipal judge Justice of the Peace

Yes

Not incompatible

GA-569

POLICE AND LAW ENFORCEMENT OFFICERS

OFFICE

OFFICE

YES/NO

REASON

AUTHORITY

City council

Reserve police officer

No

Incompatible

JM-386

Police officer

Part-time security officers

Yes


DM-212

Police officer

Municipal judge (different city)

Legally yes, but

no

Not incompatible

LO-93-59. However, see State Commission on Judicial Conduct PS-2000-1

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20

Police officer

City commissioner (different city)

Yes

Not incompatible

LO-93-27

Police officer

County road & bridge dept. employee

Yes

Not incompatible

JM-862

Asst. fire chief

Deputy constable

Yes

Not incompatible & assistant fire chief is not a civil office under Article XVI, ' 40

DM-156

Marshal

Constable

No

Article XVI, ' 40

Torno v. Hochstetler, 221 S.W. 623

Constable

Municipal fire fighter

Yes

Not incompatible

JC-270

Peace officer

Peace officer for different agency

Yes

Not incompatible

GA-214

Police chief

School board trustee

Yes

Not incompatible

GA-393

Constable

Deputy sheriff

Yes

Not incompatible

GA-402

Constable

Groundwater district board

No

Article XVI, ' 40

GA-214; GA-0540

Assistant police chief

City administrator

No

Incompatible, self-employment

GA-536

SCHOOL EMPLOYEES AND OFFICERS

OFFICE

OFFICE

YES/NO

REASON

AUTHORITY

Teacher at state college

City commissioner

Yes

Article XVI, ' 40 does not preclude if commissioner=s salary is renounced

LO 93-37

Election clerk

Off-duty school district employee

Yes

Neither position considered civil office under Article XVI, ' 40 & not incompatible

JM-862

City council

School district employee

Yes

May serve if do not receive compensation for council position

JM-118; MW-230; JM-1266

City council

School board trustee (same city)

No

Incompatible

JM-634; JC-403

School district board trustee

Volunteer teacher

No

Incompatible

JC-371


County or precinct chair of political party

Yes

Not prohibited by section 161.005 of Election Code

JC-537


Groundwater conservation district

No

Incompatible

JC-557


County treasurer

Yes

Not incompatible and not under Constitution

JC-490


Teacher

No

Incompatible

LO-97-034; LO-90-045; LO-89-057; LO-89-002; LA-114

School trustee college district

Municipal utility director

No

Incompatible

GA-32

School trustee state college

City council

No

Incompatible

LO-93-22, Thomas v. Abernathy County Line Indep. Sch. Dist., 290 S. W. 152

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21

School trustee

Water improvement district board

No

Incompatible

GA-224

School trustee County improvement district board

No Incompatible GA-307

Sheriff

School trustee

No

Incompatible

GA-328

Police chief

School trustee

Yes

Not incompatible

GA-393

MISCELLANEOUS CITY/COUNTY POSITIONS OFFICE

OFFICE

YES/NO

REASON

AUTHORITY

City official

Political party precinct chair

Yes

Not incompatible

JC-562

City Att=y

County att=y (same county)

Yes

City att=y is not a civil office. Some county att=ys are prohibited, however, by Ch. 46 of Tex. Gov. Code from outside practice of law.

JC-0054

Mayor

Hospital district director

No

Incompatible

JC-363

Director of a municipal utility district

Member of planning and zoning commission

No

Incompatible

JC-339

County attorney

Assistant county attorney of neighboring county

Yes

Not incompatible

GA-350

City manager

Transit board

Yes

Not incompatible

GA-538

30

TEXAS CODE OF JUDICIAL CONDUCT Preamble

Our legal system is based on the principle that an independent, fair and competent judiciary will interpret and apply the laws that govern us. The role of the judiciary is central to American concepts of justice and the rule of law. Intrinsic to all sections of this Code of Judicial Conduct are the precepts that judges, individually and collectively, must respect and honor the judicial office as a public trust and strive to enhance and maintain confidence in our legal system. The judge is an arbiter of facts and law for the resolution of disputes and a highly visible symbol of government under the rule of law.

The Code of Judicial Conduct is not intended as an exhaustive guide for the conduct of judges. They should also be governed in their judicial and personal conduct by general ethical standards. The Code is intended, however, to state basic standards which should govern the conduct of all judges and to provide guidance to assist judges in establishing and maintaining high standards of judicial and personal conduct.

CANON 1 Upholding the Integrity and

Independence of the Judiciary

An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining and enforcing high standards of conduct, and should personally observe those standards so that the integrity and independence of the judiciary is preserved. The provisions of this Code are to be construed and applied to further that objective.

CANON 2 Avoiding Impropriety and the Appearance of Impropriety In

All of the Judge's Activities

A. A judge shall comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

B. A judge shall not allow any relationship to influence judicial conduct or judgment. A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge. A judge shall not testify voluntarily as a character witness.

31

C. A judge shall not knowingly hold membership in any organization that practices discrimination prohibited by law.

CANON 3 Performing the Duties of

Judicial Office Impartially and Diligently

A. Judicial Duties in General. The judicial duties of a judge take precedence over all the judge's other activities. Judicial duties include all the duties of the judge's office prescribed by law. In the performance of these duties, the following standards apply:

B. Adjudicative Responsibilities.

(1) A judge shall hear and decide matters assigned to the judge except those in which disqualification is required or recusal is appropriate.

(2) A judge should be faithful to the law and shall maintain professional competence in it. A judge shall not be swayed by partisan interests, public clamor, or fear of criticism.

(3) A judge shall require order and decorum in proceedings before the judge.

(4) A judge shall be patient, dignified and courteous to litigants, jurors, witnesses, lawyers and others with whom the judge deals in an official capacity, and should require similar conduct of lawyers, and of staff, court officials and others subject to the judge's direction and control.

(5) A judge shall perform judicial duties without bias or prejudice.

(6) A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, including but not limited to bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, and shall not knowingly permit staff, court officials and others subject to the judge's direction and control to do so.

(7) A judge shall require lawyers in proceedings before the court to refrain from manifesting, by words or conduct, bias or prejudice based on race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status against parties, witnesses, counsel or others. This requirement does not preclude legitimate advocacy when any of these factors is an issue in the proceeding.

(8) A judge shall accord to every person who has a legal interest in a proceeding, or that person's lawyer, the right to be heard according to law. A judge shall not initiate, permit, or consider ex parte communications or other communications made to the judge outside the presence of the parties between the judge and a party, an attorney, a guardian or attorney ad

32

litem, an alternative dispute resolution neutral, or any other court appointee concerning the merits of a pending or impending judicial proceeding. A judge shall require compliance with this subsection by court personnel subject to the judge's direction and control. This subsection does not prohibit:

(a) communications concerning uncontested administrative or uncontested procedural matters;

(b) conferring separately with the parties and/or their lawyers in an effort to mediate or settle matters, provided, however, that the judge shall first give notice to all parties and not thereafter hear any contested matters between the parties except with the consent of all parties;

(c) obtaining the advice of a disinterested expert on the law applicable to a proceeding before the judge if the judge gives notice to the parties of the person consulted and the substance of the advice, and affords the parties reasonable opportunity to respond;

(d) consulting with other judges or with court personnel;

(e) considering an ex parte communication expressly authorized by law.

(9) A judge should dispose of all judicial matters promptly, efficiently and fairly.

(10) A judge shall abstain from public comment about a pending or impending proceeding which may come before the judge's court in a manner which suggests to a reasonable person the judge's probable decision on any particular case. This prohibition applies to any candidate for judicial office, with respect to judicial proceedings pending or impending in the court on which the candidate would serve if elected. A judge shall require similar abstention on the part of court personnel subject to the judge's direction and control. This section does not prohibit judges from making public statements in the course of their official duties or from explaining for public information the procedures of the court. This section does not apply to proceedings in which the judge or judicial candidate is a litigant in a personal capacity.

(11) A judge shall not disclose or use, for any purpose unrelated to judicial duties, nonpublic information acquired in a judicial capacity. The discussions, votes, positions taken, and writings of appellate judges and court personnel about causes are confidences of the court and shall be revealed only through a court's judgment, a written opinion or in accordance with Supreme Court guidelines for a court approved history project.

C. Administrative Responsibilities.

(1) A judge should diligently and promptly discharge the judge's administrative responsibilities without bias or prejudice and maintain professional competence in judicial administration, and should cooperate with other judges and court officials in the administration of court business.

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(2) A judge should require staff, court officials and others subject to the judge's direction and control to observe the standards of fidelity and diligence that apply to the judge and to refrain from manifesting bias or prejudice in the performance of their official duties.

(3) A judge with supervisory authority for the judicial performance of other judges should take reasonable measures to assure the prompt disposition of matters before them and the proper performance of their other judicial responsibilities.

(4) A judge shall not make unnecessary appointments. A judge shall exercise the power of appointment impartially and on the basis of merit. A judge shall avoid nepotism and favoritism. A judge shall not approve compensation of appointees beyond the fair value of services rendered.

(5) A judge shall not fail to comply with Rule 12 of the Rules of Judicial Administration, knowing that the failure to comply is in violation of the rule.

D. Disciplinary Responsibilities.

(1) A judge who receives information clearly establishing that another judge has committed a violation of this Code should take appropriate action. A judge having knowledge that another judge has committed a violation of this Code that raises a substantial question as to the other judge's fitness for office shall inform the State Commission on Judicial Conduct or take other appropriate action.

(2) A judge who receives information clearly establishing that a lawyer has committed a violation of the Texas Disciplinary Rules of Professional Conduct should take appropriate action. A judge having knowledge that a lawyer has committed a violation of the Texas Disciplinary Rules of Professional Conduct that raises a substantial question as to the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects shall inform the Office of the General Counsel of the State Bar of Texas or take other appropriate action.

CANON 4 Conducting the Judge's Extra-Judicial Activities to Minimize

the Risk of Conflict with Judicial Obligations

A. Extra-Judicial Activities in General. A judge shall conduct all of the judge's extra-judicial activities so that they do not:

(1) cast reasonable doubt on the judge's capacity to act impartially as a judge; or

(2) interfere with the proper performance of judicial duties.

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B. Activities to Improve the Law. A judge may:

(1) speak, write, lecture, teach and participate in extra-judicial activities concerning the law, the legal system, the administration of justice and non-legal subjects, subject to the requirements of this Code; and,

(2) serve as a member, officer, or director of an organization or governmental agency devoted to the improvement of the law, the legal system, or the administration of justice. A judge may assist such an organization in raising funds and may participate in their management and investment, but should not personally participate in public fund raising activities. He or she may make recommendations to public and private fund-granting agencies on projects and programs concerning the law, the legal system and the administration of justice.

C. Civic or Charitable Activities. A judge may participate in civic and charitable activities that do not reflect adversely upon the judge's impartiality or interfere with the performance of judicial duties. A judge may serve as an officer, director, trustee or non-legal advisor of an educational, religious, charitable, fraternal, or civic organization not conducted for the profit of its members, subject to the following limitations:

(1) A judge should not serve if it is likely that the organization will be engaged in proceedings that would ordinarily come before the judge or will be regularly or frequently engaged in adversary proceedings in any court.

(2) A judge shall not solicit funds for any educational, religious, charitable, fraternal or civic organization, but may be listed as an officer, director, delegate, or trustee of such an organization, and may be a speaker or a guest of honor at an organization's fund raising events.

(3) A judge should not give investment advice to such an organization, but may serve on its board of directors or trustees even though it has the responsibility for approving investment decisions.

D. Financial Activities.

(1) A judge shall refrain from financial and business dealings that tend to reflect adversely on the judge's impartiality, interfere with the proper performance of the judicial duties, exploit his or her judicial position, or involve the judge in frequent transactions with lawyers or persons likely to come before the court on which the judge serves. This limitation does not prohibit either a judge or candidate from soliciting funds for appropriate campaign or officeholder expenses as permitted by state law.

(2) Subject to the requirements of subsection (1), a judge may hold and manage investments, including real estate, and engage in other remunerative activity including the operation of a business. A judge shall not be an officer, director or manager of a publicly owned business. For purposes of this Canon, a "publicly owned business" is a business having more than ten owners who are not related to the judge by consanguinity or affinity within the third degree of relationship.

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(3) A judge should manage any investments and other economic interests to minimize the number of cases in which the judge is disqualified. As soon as the judge can do so without serious financial detriment, the judge should divest himself or herself of investments and other economic interests that might require frequent disqualification. A judge shall be informed about the judge's personal and fiduciary economic interests, and make a reasonable effort to be informed about the personal economic interests of any family member residing in the judge's household.

(4) Neither a judge nor a family member residing in the judge's household shall accept a gift, bequest, favor, or loan from anyone except as follows:

(a) a judge may accept a gift incident to a public testimonial to the judge; books and other resource materials supplied by publishers on a complimentary basis for official use; or an invitation to the judge and spouse to attend a bar-related function or activity devoted to the improvement of the law, the legal system, or the administration of justice;

(b) a judge or a family member residing in the judge's household may accept ordinary social hospitality; a gift, bequest, favor, or loan from a relative; a gift from a friend for a special occasion such as a wedding, engagement, anniversary, or birthday, if the gift is fairly commensurate with the occasion and the relationship; a loan from a lending institution in its regular course of business on the same terms generally available to persons who are not judges; or a scholarship or fellowship awarded on the same terms applied to other applicants;

(c) a judge or a family member residing in the judge's household may accept any other gift, bequest, favor, or loan only if the donor is not a party or person whose interests have come or are likely to come before the judge;

(d) a gift, award or benefit incident to the business, profession or other separate activity of a spouse or other family member residing in the judge's household, including gifts, awards and benefits for the use of both the spouse or other family member and the judge (as spouse or family member), provided the gift, award or benefit could not reasonably be perceived as intended to influence the judge in the performance of judicial duties.

E. Fiduciary Activities.

(1) A judge shall not serve as executor, administrator or other personal representative, trustee, guardian, attorney in fact or other fiduciary, except for the estate, trust or person of a member of the judge's family, and then only if such service will not interfere with the proper performance of judicial duties.

(2) A judge shall not serve as a fiduciary if it is likely that the judge as a fiduciary will be engaged in proceedings that would ordinarily come before the judge, or if the estate, trust, or ward becomes involved in adversary proceedings in the court on which the judge serves or one under its appellate jurisdiction.

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(3) The same restrictions on financial activities that apply to a judge personally also apply to the judge while acting in a fiduciary capacity.

F. Service as Arbitrator or Mediator. An active full-time judge shall not act as an arbitrator or mediator for compensation outside the judicial system, but a judge may encourage settlement in the performance of official duties.

G. Practice of Law. A judge shall not practice law except as permitted by statute or this Code. Notwithstanding this prohibition, a judge may act pro se and may, without compensation, give legal advice to and draft or review documents for a member of the judge's family.

H. Extra-Judicial Appointments. Except as otherwise provided by constitution and statute, a judge should not accept appointment to a governmental committee, commission, or other position that is concerned with issues of fact or policy on matters other than the improvement of the law, the legal system, or the administration of justice. A judge, however, may represent his or her country, state, or locality on ceremonial occasions or in connection with historical, educational, and cultural activities.

I. Compensation, Reimbursement and Reporting.

(1) Compensation and Reimbursement. A judge may receive compensation and reimbursement of expenses for the extra-judicial activities permitted by this Code, if the source of such payments does not give the appearance of influencing the judge's performance of judicial duties or otherwise give the appearance of impropriety.

(a) Compensation shall not exceed a reasonable amount nor shall it exceed what a person who is not a judge would receive for the same activity.

(b) Expense reimbursement shall be limited to the actual cost of travel, food, and lodging reasonably incurred by the judge and, where appropriate to the occasion, by the judge's family. Any payment in excess of such an amount is compensation.

(2) Public Reports. A judge shall file financial and other reports as required by law.

CANON 5 Refraining From Inappropriate

Political Activity

(1) A judge or judicial candidate shall not:

(i) make pledges or promises of conduct in office regarding pending or impending cases, specific classes of cases, specific classes of litigants, or specific propositions of law that would suggest to a reasonable person that the judge is predisposed to a probable decision in cases within the scope of the pledge;

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(ii) knowingly or recklessly misrepresent the identity, qualifications, present position, or other fact concerning the candidate or an opponent; or

(iii) make a statement that would violate Canon 3B(10).

(2) A judge or judicial candidate shall not authorize the public use of his or her name endorsing another candidate for any public office, except that either may indicate support for a political party. A judge or judicial candidate may attend political events and express his or her views on political matters in accord with this Canon and Canon 3B(10).

(3) A judge shall resign from judicial office upon becoming a candidate in a contested election for a non-judicial office either in a primary or in a general or in a special election. A judge may continue to hold judicial office while being a candidate for election to or serving as a delegate in a state constitutional convention or while being a candidate for election to any judicial office.

(4) A judge or judicial candidate subject to the Judicial Campaign Fairness Act, Tex. Elec. Code §253.151, et seq. (the “Act”), shall not knowingly commit an act for which he or she knows the Act imposes a penalty. Contributions returned in accordance with Sections 253.155(e), 253.157(b) or 253.160(b) of the Act are not a violation of this paragraph.

COMMENT

A statement made during a campaign for judicial office, whether or not prohibited by this Canon, may cause a judge's impartiality to be reasonably questioned in the context of a particular case and may result in recusal.

CANON 6 Compliance with the Code of

Judicial Conduct

A. The following persons shall comply with all provisions of this Code:

(1) An active, full-time justice or judge of one of the following courts:

(a) the Supreme Court,

(b) the Court of Criminal Appeals,

(c) courts of appeals,

(d) district courts,

(e) criminal district courts, and

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(f) statutory county courts.

(2) A full-time commissioner, master, magistrate, or referee of a court listed in (1) above.

B. A County Judge who performs judicial functions shall comply with all provisions of this Code except the judge is not required to comply:

(1) when engaged in duties which relate to the judge's role in the administration of the county;

(2) with Canons 4D(2), 4D(3), or 4H;

(3) with Canon 4G, except practicing law in the court on which he or she serves or in any court subject to the appellate jurisdiction of the county court, or acting as a lawyer in a proceeding in which he or she has served as a judge or in any proceeding related thereto.

(4) with Canon 5(3).

C. Justices of the Peace and Municipal Court Judges.

(1) A justice of the peace or municipal court judge shall comply with all provisions of this Code, except the judge is not required to comply:

(a) with Canon 3B(8) pertaining to ex parte communications; in lieu thereof a justice of the peace or municipal court judge shall comply with 6C(2) below;

(b) with Canons 4D(2), 4D(3), 4E, or 4H;

(c) with Canon 4F, unless the court on which the judge serves may have jurisdiction of the matter or parties involved in the arbitration or mediation; or

(d) if an attorney, with Canon 4G, except practicing law in the court on which he or she serves, or acting as a lawyer in a proceeding in which he or she has served as a judge or in any proceeding related thereto.

(e) with Canons 5(3).

(2) A justice of the peace or a municipal court judge, except as authorized by law, shall not directly or indirectly initiate, permit, nor consider ex parte or other communications concerning the merits of a pending judicial proceeding. This subsection does not prohibit communications concerning:

(a) uncontested administrative matters,

(b) uncontested procedural matters,

(c) magistrate duties and functions,

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(d) determining where jurisdiction of an impending claim or dispute may lie,

(e) determining whether a claim or dispute might more appropriately be resolved in some other judicial or non-judicial forum,

(f) mitigating circumstances following a plea of nolo contendere or guilty for a fine-only offense, or

(g) any other matters where ex parte communications are contemplated or authorized by law.

D. A Part-time commissioner, master, magistrate, or referee of a court listed in 6A(1) above:

(1) shall comply with all provisions of this Code, except he or she is not required to comply with Canons 4D(2), 4E, 4F, 4G or 4H, and

(2) should not practice law in the court which he or she serves or in any court subject to the appellate jurisdiction of the court which he or she serves, or act as a lawyer in a proceeding in which he or she has served as a commissioner, master, magistrate, or referee, or in any other proceeding related thereto.

E. A Judge Pro Tempore, while acting as such:

(1) shall comply with all provisions of this Code applicable to the court on which he or she is serving, except he or she is not required to comply with Canons 4D(2), 4D(3), 4E, 4F,4G or 4H, and

(2) after serving as a judge pro tempore, should not act as a lawyer in a proceeding in which he or she has served as a judge or in any other proceeding related thereto.

F. A Senior Judge, or a former appellate or district judge, or a retired or former statutory county court judge who has consented to be subject to assignment as a judicial officer:

(1) shall comply with all the provisions of this Code except he or she is not required to comply with Canon 4D(2),4E, 4F,4G, or 4H, but

(2) should refrain from judicial service during the period of an extra-judicial appointment not permitted by Canon 4H.

G. Candidates for Judicial Office.

(1) Any person seeking elective judicial office listed in Canon 6A(1) shall be subject to the same standards of Canon 5 that are required of members of the judiciary.

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(2) Any judge who violates this Code shall be subject to sanctions by the State Commission on Judicial Conduct.

(3) Any lawyer who is a candidate seeking judicial office who violates Canon 5 or other relevant provisions of this Code is subject to disciplinary action by the State Bar of Texas.

(4) The conduct of any other candidate for elective judicial office, not subject to paragraphs (2) and (3) of this section, who violates Canon 5 or other relevant provisions of the Code is subject to review by the Secretary of State, the Attorney General, or the local District Attorney for appropriate action.

H. Attorneys.

Any lawyer who contributes to the violation of Canons 3B(7), 3B(10), 4D(4), 5, or 6C(2), or other relevant provisions of this Code, is subject to disciplinary action by the State Bar of Texas.

CANON 7 Effective Date of Compliance

A person to whom this Code becomes applicable should arrange his or her affairs as soon as reasonably possible to comply with it.

CANON 8 Construction and Terminology

of the Code

A. Construction.

The Code of Judicial Conduct is intended to establish basic standards for ethical conduct of judges. It consists of specific rules set forth in Sections under broad captions called Canons.

The Sections are rules of reason, which should be applied consistent with constitutional requirements, statutes, other court rules and decisional law and in the context of all relevant circumstances. The Code is to be construed so as not to impinge on the essential independence of judges in making judicial decisions.

The Code is designed to provide guidance to judges and candidates for judicial office and to provide a structure for regulating conduct through the State Commission on Judicial Conduct. It is not designed or intended as a basis for civil liability or criminal prosecution. Furthermore, the purpose of the Code would be subverted if the Code were invoked by lawyers for mere tactical advantage in a proceeding.

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It is not intended, however, that every transgression will result in disciplinary action. Whether disciplinary action is appropriate, and the degree of discipline to be imposed, should be determined through a reasonable and reasoned application of the text and should depend on such factors as the seriousness of the transgression, whether there is a pattern of improper activity and the effect of the improper activity on others or on the judicial system.

B. Terminology.

(1) "Shall" or "shall not" denotes binding obligations the violation of which can result in disciplinary action.

(2) "Should" or "should not" relates to aspirational goals and as a statement of what is or is not appropriate conduct but not as a binding rule under which a judge may be disciplined.

(3) "May" denotes permissible discretion or, depending on the context, refers to action that is not covered by specific proscriptions.

(4) "De minimis" denotes an insignificant interest that could not raise reasonable question as to a judge's impartiality.

(5) "Economic interest" denotes ownership of a more than de minimis legal or equitable interest, or a relationship as officer, director, advisor or other active participant in the affairs of a party, except that:

(i) ownership of an interest in a mutual or common investment fund that holds securities is not an economic interest in such securities unless the judge participates in the management of the fund or a proceeding pending or impending before the judge could substantially affect the value of the interest;

(ii) service by a judge as an officer, director, advisor or other active participant, in an educational, religious, charitable, fraternal, or civic organization or service by a judge's spouse, parent or child as an officer, director, advisor or other active participant in any organization does not create an economic interest in securities held by that organization;

(iii) a deposit in a financial institution, the proprietary interest of a policy holder in a mutual insurance company, of a depositor in a mutual savings association or of a member in a credit union, or a similar proprietary interest, is not an economic interest in the organization unless a proceeding pending or impending before the judge could substantially affect the value of the interest; and

(iv) ownership of government securities is not an economic interest in the issuer unless a proceeding pending or impending before the judge could substantially affect the value of the securities.

(6) "Fiduciary" includes such relationships as executor, administrator, trustee, and guardian.

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(7) "Knowingly," "knowledge," "known" or "knows" denotes actual knowledge of the fact in question. A person's knowledge may be inferred from circumstances.

(8) "Law" denotes court rules as well as statutes, constitutional provisions and decisional law.

(9) "Member of the judge's (or the candidate's) family" denotes a spouse, child, grandchild, parent, grandparent or other relative or person with whom the candidate maintains a close familial relationship.

(10) "Family member residing in the judge's household" means any relative of a judge by blood or marriage, or a person treated by a judge as a member of the judge's family, who resides at the judge's household.

(11) "Require." The rules prescribing that a judge "require" certain conduct of others are, like all of the rules in this Code, rules of reason. The use of the term "require" in that context means a judge is to exercise reasonable direction and control over the conduct of those persons subject to the judge's direction and control.

(12) "Third degree of relationship."The following persons are relatives within the third degree of relationship: great-grandparent, grandparent, parent, uncle, aunt, brother, sister, child, grandchild, great-grandchild, nephew or niece.

(13) "Retired Judge" means a person who receives from the Texas Judicial Retirement System, Plan One or Plan Two, an annuity based on service that was credited to the system.(Secs. 831.001 and 836.001,V.T.C.A. Government Code [Ch. 179, Sec. 1, 71st Legislature (1989)]

(14) "Senior Judge" means a retired appellate or district judge who has consented to be subject to assignment pursuant to Section 75.001, Government Code. [Ch. 359, 69th Legislature, Reg. Session (1985)]

(15) "Statutory County Court Judge" means the judge of a county court created by the legislature under Article V, Section 1, of the Texas Constitution, including county courts at law, statutory probate courts, county criminal courts, county criminal courts of appeals, and county civil courts at law. (Sec. 21.009, V.T.C.A. Government Code [Ch. 2, Sec. 1601(18), 71st Legislature (1989)])

(16) "County Judge" means the judge of the county court created in each county by Article V, Section 15, of the Texas Constitution.(Sec. 21.009, V.T.C.A. Government Code [Ch. 2, Sec. 1601(18), 71st Legislature (1989)])

(17) "Part-time" means service on a continuing or periodic basis, but with permission by law to devote time to some other profession or occupation and for which the compensation for that reason is less than that for full-time service.

(18) "Judge Pro Tempore" means a person who is appointed to act temporarily as a judge.

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Documents

Nielsen - Judicial Ethics and Conflicts