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March 27,199l

Honorable John Whitmire Senate Committee on Opinion No. DM-11 Intergovernmental Relations Re: Authority of a commissioners court to set the Texas State Senate salary ofa county court-at-law judge and to suppleP. 0. Box 12068 ment the salary ofa districtjudge, and related quesAustin, Texas 78711 tions (RQ-4) Dear Senator Whitmire: The Senate Committee on Intergovernmental Relations asked the following question. Is there a ‘constitutional conflict of interest’ in the

commissioners court’s ability to set the salary of a county court at lawjudge and in setting a supplement to the salary of a district judge when thejudges receiving the sakuy and the stipplement are then asked to rule on cases which directly affect the commissioners court? Chapter 25 of the Government Code provides generally for county courts-at-law, also referred to therein as “statutory county courts.” Section 25.0005 provides as followswith respect to the salaries ofjudges ofsuch courts:

(a) Subject to any salary requirements otherwise imposed by this chapter for a particular court or county, the commissioners court sets the salary ofeach statutory county courtjudge. (b) The salary shall be paid in equal monthly installments. Other provisions in chapter 25 applicable to specific statutory county courts make exceptions to the requirement of section 250005(b) that the salaries of statutory county court judges are to be paid in equal monthly installments. See,e.g.,id. 5250302(h) (subsection (b) of section 25.0005 does not apply to a county court-at-law in Caldwell County). However, the provision of subsection (a) of section 25.0005,that the commissioners court sets the salary of suchjudges, appears to apply generally to all Texas counties.

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Chapter 32ofthe Government Code provides for additional or supplemental salary to be set, within specified limits, by enumerated commissioners courts for certain district judges serving those counties. See,e.g.,id 832.002 (Andrews County Commissioners Court to payjudge ofthe 109thJudicial District additional annual salary not to exceed $5000). The request letter does not cite any particular constitutional provisions as apposite. The only constitutional provision we find that might arguably apply to the issueyou present isthat in article V, section 11,that “[n]ojudge shall sit in any case wherein he may be interested.” The term “interest”in article V, section 11,as interpreted by the courts, has a “special and limited meaning; it refers only ro direct pecuniary interests.” 1 G. BRADEN,

THE CONSTITUTION OF THE STATE

OF TEFW: AN ANNOTATED AND COMPARATIVE

ANALYSIS

at 423 (1977). A pecuniary interest suffkient to disqualify ajudge under article V, section 11,must also be real and certain. Any pecuniary gain or loss to the judge must be an immediate, necessary, and quantifiable result of the judgment to be rendered in the particular case, and not merely a possible or incidental result. See bve v. Wilca 28 S.W.2d 515 (Tex. 1930) (justice, who was himself a candidate in primary, not disqualified to consider mandamus proceeding by another candidate to have his name printed on primary ballot); Nueces Coun&&&aPe & Conservb Dist. No. 2 v. Bevly, 519 S.W.2d 938 (Tex. Civ. App.--Corpus Christi 1975, writ refd n.r.e.) (judge’s interest as taxpayer in drainage district too remote to disqualify him from hearing action to enjoin district from making certain improvements); Narro Ware~house.c. v. K& 530 S.W.2d 146 (Tex. Civ. App.--Corpus Christi 1975,writ refd n.r.e.) (judge no; disqualified to sit in condemnation case by reason of having accepted free legal services ofattorney in another case in federal court in which bothjudge and litigants in condemnation proceeding were parties). In our opinion, the Government Code provisions authorizing commissioners courts to set salaries for county court-at-law judges and salary supplements for districtjudges do not create a “constitutional conflict of interest.” The possibility that thejudge’s actions might be influenced by the fact that the commissioners court sets his salary or supplement is too remote and uncertain to be an “interest” within the meaning ofthe article V, section 11,prohibition.

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## SUMMARY The statutory provisions for county commissioners courts’ setting the salaries of county court-at-lawjudges and the salary supplements of district courtjudges do not create a “constitutional conflict ofinterest.

DAN MORALES Attorney General ofTexas WILLPRYOR First Assistant Attorney General MARY KELLER Executive Assistant Attorney General JUDGE ZOLLIE STEAKLEY (Ret) Special Assistant Attorney General RENEA HICKS Special Assistant Attorney General SUSAN GARRISON Acting Chairman, Opinion Committee Prepared by William Walker Assistant Attorney General

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