Untitled Texas Attorney General Opinion ( 1987 )

THE ATTORSEY GEXERAL
OF TEXAS
May 20, 1987
Honorable Roy Blake Opinion No. a-704
Chairman
Administration Committee Re: Whether an individual may
Texas State Senate simultaneously serve as a director
P. 0. Box 12068 of a river authority and a member
Austin, Texas 78711 of a city planning land zoning
commission
Dear Senator Blake:
You ask whether a member of the Lufkin City Planning and Zoning
Commission may also serve as director of the Angelina and Neches River
Authority.
Article XVI, section 40, of the Texas Constitution provides:
No person shall hold or exercise at the same
time, more than one civil offices of emolument,
except. . . . (Exceptions not applicable).
Attorney General Opinion JR-594 (1986) concluded that a director
of the Angelina and Neches River Authority occupies a civil office of
emolument. The opinion pointed out the provisions which conferred an
officer's powers and duties on the board members. See generally
Aldine Independent School District v. Standley. 280 S.W.2d 578 (Tex.
1955). The statute establishing the river authority, also provides
that:
The directors shall receive as fees of office
the sum of not to exceed Ten ($10.00) Dollars per
day for each day of service necessary to discharge
their duties, provided such service is authorized
by vote of the Board of Directors. They shall file
with the Secretary a verified statement showing
the actual number of days of service each month on
the last day of the month, or as soon thereafter
as possible and before a warrant shall be issued
therefor.
Acts 1935, 44th Leg., ch. 97, 98. at 241.
p. 3256
Honorable Roy Blake - Page 2 (JM-704)
We have been informed that no board member has ever been com-
pensated for service, despite the quoted provision. We nonetheless
believe that the directors of the Angelina and Neches River Authority
are civil officers of emolument if they perform any of the services
which entitle them to compmsaclon. Compensation attached to en
office is an incident to the title to office. Markwell v. Galveston
=, 186 S.W.2d 273 (Tex. Civ. App. - Galveston 1945, writ ref'd).
The incumbent of an office is entitled to emoluments during the term
for which he is elected or appointed. Bastrop County v. Hearn, 8 S.W.
302 (Tex. 1888). The failure to pay authorized emoluments to an
officer does not change the character of the office; it is still a
civil office of emolument. See general11 Attorney General Opinion
JM-333 (1985) (municipal judge holds a civil office of emolument even
though he refuses to accept the compensation attached to it). Whether
any director or directors of the river authority perform any of the
services which entitle them to emoluments is a fact question.
In our opinion, a member of the Lufkin City Planning and Zoning
Commission is also a civil officer of emolument. You state that the
Lufkin City Code provides that the members of the City Planning and
Zoning Commission "shall receive the sum of $5.00 for each regular
meeting provided, that no member shall receive pay for more than two
(2) meetings in one (1) month." Willis v. Potts, 377 S.W.2d 622
(Tex. 1964) ($10 per meeting is sufficient to make an office one of
emolument).
The determining factor distinguishing an officer from an employee
is "whether any sovereign function of government is conferred upon
the individual to be exercised by him for the benefit of the public
largely independent of the control of others." Aldine Independent
School District v. Standley. 280 S.W.2d at 583 (quoting Dunbar v.
Brazoria County, 224 S.W.2d 738 (Tex. Civ. App. - Galveston 1949. writ
ref'd)) (emphasis in original). See also Attorney General Opinion
MW-415 (1981) (no distinction exists between "civil office" as used in
article XVI, section 40, of the Texas Constitution and "public office"
as used elsewhere in the constitution).
The zoning authority of all cities, including home rule cities,
is set out in articles lOlla through 1Ollj. V.T.C.S., the general
zoning enabling act. See Attorney General Opinion JM-117 (1983); 888
also V.T.C.S. art. 1175(26). Article lOllf, V.T.C.S., provides for a
municipal zoning commission:
(a) In order to avail itself of the powers
conferred by this Act, the legislative body of a
home-rule .city shall, and the legislative body
of a general law municipality may, appoint a
commission, to be known as the Zoning Commission.
p. 3257
Honorable Roy Blake - Page 3 (~~-704)
(b) If a Zoning Commission is appointed, It
shall recommend the boundaries of the various
original districts and appropriate regulations to
be enforced therein. S&h Commission shall make
a preliminary report and hold public hearings
thereon before submitting its final report, and
such legislative body shall not hold its public
hearings or take action until it has received
the final report of such Commission; provided,
however, that any city or,town. by ordinance, may
provide for the holding of any public hearing of
the legislative body, after published notice
required by Section 4 of this Act, jointly with
anv nublic hearing reauired to be held bv the
Zoning Commisslon,"but such legislative body'shall
not take action until it has received the final
report of such Zoning Commission. Where a City
Plan Commission already exists, it may be
appointed as the Zoning Commission. . . .
(c) Any other law that refers to a municipal
Zoning Commission or Planning Commission shall be
construed as referring to the legislative body in
the case of a general law municipality that
exercises zoning power without appointment of a
Zoning Commission. (Emphasis added).
V.T.C.S. art. 1011f. The zoning commission reports its recommenda-
tions on the boundaries of zoning districts and regulations to be
enforced there.
Article 1011e. V.T.C.S.. provides In part:
(a) Such regulations, restrictions, and
boundaries [adopted by the city legislative body]
may from time to time be amended, supplemented,.
changed, modified, or repealed. In case, however,
of a written protest against such change, signed
by the owners of 20 per cent or more either of the
area of the lots or land included in such proposed
change, or of the lots or land immediately ad-
joining the same and extending 200 feet therefrom,
such amendment shall not become effective except
by the favorable vote of three-fourths of all
members of the legislative body of such munici-
pality. In computing the percentage of land area,
the area of streets and alleys shall be included
in the computation. The legislative body of a
municipality may also provide by ordinance that a
p. 3258
Eonorable Roy Blake - Page 4 (m-704)
vote of three-fourths of all its members is
required to overrule a recommendation of the
zoning commission that a proposed amendment,
supplement, or change be denied. (Emphasis
added).
V.T.C.S. art. 1011e. The underlined language allows the city
governing body to delegate part of its legislative power to,the zoning
commission. See generally City of San Antonio v. Lanier, 542 S.W.2d
232 (Tex. Cl-f. App. - San Antonio 1976, writ ref'd n.r.e.) (case
decided prior to--statutory amendment adding underlined language).
Under this provision, the recommendation of the zoning commission can
prevail over the will of a simple majority or two-thirds majority of
the city's governing body. Thus, the zoning commission could control
the power to amend, supplement, or change the city's zoning
regulations, restrictions, and boundaries. If the governing body of
Lufkin has delegated this power to the zoning commission, it has
conferred upon the commission a sovereign function of government to be
exercised largely independent of the control of others. Members of
the commission would in that case be civil officers of emolument.
If the Lufkin Zoning and Planning Commission does not exercise
delegated legislative power under article 1011e. V.T.C.S., or other
governmental power delegated by the city's governmental body, we
believe the commission members are nonetheless public officers, based
on powers granted by article 1011f. V.T.C.S. This is a close question.
Some city planning or zoning commissions act only in an advisory
capacity. Nichols v. Dallas, 347 S.W.2d 326 (Tex. Civ. App. - Dallas
1961, writ ref'd n.r.e.). The city legislative body, however, may not
hold public hearings or take action until it has received the final
report of the commission. V.T.C.S. art. 1011f. Thus. the commission
has some control over the time at which the city council may exercise
its legislative power to establish and change zoning boundaries and
regulations. In addition, a Texas court has treated the members of
the zoning commission as officers in determining that they would be de
facto officers if their appointment were Drocedurallv incorrect.
Storm Bros. v. Town of Balcones Heights, 236 S.W.2d 842 (Tex. Civ.
APP. - El Paso 1950, writ ref'd n.r.e.).
We conclude that members of the Lufkin City Zoning and Planning
Commission are civil officers of emolument. If a director of the
Angelina and Neches River Authority has performed services which
entitle him to receive compensation under the statute, he serves in
that position as a civil officer of emolument and may not simul-
taneously serve on the Lufkin City Zoning and Planning Commission.
p. 3259
Eonorable Roy Blake - Page 5 (JR-704)
SUMMARY
Members of the Lufkin City Zoning and Planning
Commission are civil officers of emolument. If a
director of the Angelina and Neches River Authority
has performed services which entitle him to receive
compensation, he serves in that position as a civil
officer of emolument. Article XVI, section 40. of
the Texas Constitution bars one person from holding
these two offices at the same time.
VeryI truly youri
JIM HATTOX
Attorney General of Texas
JACK HIGRTOWER
First Assistant Attorney General
MARY Rl?LLER
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLFP
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Susan L. Garrison
Assistant Attorney General
p. 3260