Untitled Texas Attorney General Opinion ( 1999 )

OFFICEOF THE ATTORNEY GENERAL STATEOF TEXAS
JOHN CORNYN
August 11,1999
The Honorable J.E. “Buster” Brown Opinion No. JC-0095
Chair, Natural Resources Committee
Texas State Senate Re: Whether the Gulf Coast Waste Disposal
P.O. Box 12068 Authority is a soil and water conservation district
Austin, Texas 7871 l-2068 for purposes of article XVI, section 40 of the
Texas Constitution, and related question:
Reconsideration of Attorney General Letter
OpinionNo. 98-124 (RQ-0015)
Dear Senator Brown:
You have requested our reconsideration of Attorney General Letter Opinion No. 98-124,
which held, inter alia, that a municipal judge of the City of Houston was barred by article XVI,
section 40, of the Texas Constitution horn simultaneously holding the office of director of the Gulf
Coast Waste Disposal Authority [“the GCWDA”]. You raise two issues that were not addressed in
the earlier opinion. For the reasons indicated below, we again must conclude that the simultaneous
holding ofthose two positions is impermissible, and accordingly, we affrm the conclusion of Letter
Opinion 98-124.
Article XVI, section 40, provides, in relevant part:
No person shall hold or exercise at the same time, more than
one civil office of emolument, except. the officers and directors of
soil and water conservation districts .
TEX. CONST. art. XVI, 5 40. You suggest, first, that a member of the Board of Directors of the
GCWDA is excepted from the constitutional prohibition because it is a “soil and water conservation
district.” See Letter from Honorable J. E. “Buster” Brown, Texas State Senator, to Honorable John
Comyn, Texas Attorney General (Jan. 19, 1999) (on file with Opinion Committee) [hereinafter
“Request Letter”]. The GCWDA is “a conservation and reclamation district and a political
subdivision created by the Texas Legislature pursuant to article XVI, section 59 of the Texas
Constitution.” Tex. Att’y Gen. LO-98-124, at 1. The purpose of the GCWDA is to develop and
effectuate a regional water quality management program for Chambers, Galveston, and Harris
counties. See id.
The Honorable J. E. “Buster” Brown - Page 2 (JC-0095)
In Letter Advisory No. 3 1, upon which the individual municipal judge in question has relied,
the Attorney General considered whether an assistant executive director of a state agency was
eligible to serve simultaneously as a director of a river authority. The opinion appears to suggest,
without explicitly so finding, that the term “soil and water conservation district” includes a river
authority:
Ifthe [r]iver authority to which you refer may be classified as
a soil and water conservation district, and it seems that river districts
are generally classed as soil and water conservation districts under
Title 128, V.T. C.S, then a position as its director is exempt from the
prohibition by Section 40, Article 16, of dual employment.
Tex. Att’y Gen. LA-3 1 (1973) at 2 (emphasis added). In a subsequent opinion, however, this office,
without referring to Letter Advisory No. 3 1, adopted a narrow reading of the term:
We do not believe that a director of a drainage district falls
within the article 16, section 40 exception relating to directors of soil
and water conservation districts. Drainage districts are created
pursuant to chapter 56 of the Texas Water Code. Soil and water
conservation districts, on the other hand, are created under article
165a-4, V.T.C.S. [now chapter 201, Texas Agriculture Code]. The
Legislature is presumed to have chosen the language of its statutes,
and particularly the language of the Constitution, with care and
deliberation, and when a word has a settled meaning or legal
significance, it is presumed to have been used in that sense. Turullols
v. San Feline Countrv Club, 458 S.W.2d 206, 209 (Tex. Civ.
App.-San Antonio 1970, writ ref d n.r.e.); see Alexander v. State,
204 S.W. 644,647 (Tex. Crim. App. 1918). While thereare general
terms such as “conservation and reclamation districts” which could
embrace both drainage districts and soil and water conservation
districts, the Legislature did not use a generic term. The phrase it did
use, “soil and water conservation districts,” has a settled legal
meaning and does not include drainage districts.
Tex. Att’y Gen. LA-150 (1978) at 2 (citation omitted). Letter Advisory No. 150 did not elaborate
on the “settled legal meaning” of the term “soil and water conservation district.” Id. Chapter 201
of the Agriculture Code, however, does so.
The State Soil Conservation Act was first enacted in 1939 as article 165a-4 of the Revised
Civil Statutes. See Act ofApril 11,1939,46th Leg., R.S., ch. 3,1939 Tex. Gen. Laws 7. It provided
for a State Soil Conservation Board and five district boards. See id. 5 4, at 10-14. In 1965, the name
“soil conservation district” was changed to “soil and water conservation district.” Act of April 29,
1965,59th Leg., R.S., ch. 176,1965 Tex. Gen. Laws 370. The purpose ofthe enactment, as its name
The Honorable J. E. “Buster” Brown - Page 3 (X-0095)
suggests, was and is to preserve and conserve the soil and related resources of the state for the
control and prevention of soil erosion, and thereby preserve natural resources, control floods, protect
dams, reservoirs, and navigability ofrivers and harbors, among others. See TEX. AGRIC. CODE ANN.
4 201.001 (Vernon 1982 & Supp. 1999). Soil andwaterconservationdistricts are createdonpetition
to the State Soil and Water Conservation Board by eligible voters in a given territory. See id.
5 201.041 (Vernon 1982). These districts have the authority to undertake measures to conserve soil
and prevent soil erosion, including the authority to adopt ordinances regulating land use on land
within the district in the interest of conserving soil and soil resources and preventing and controlling
soilerosion. Seeid. ~~201.101-.108(Vemonl982&Supp. 1999);@201.121-.133(Vemonl982).
In our opinion, the GCWDA is not a soil and water conservation district created under
chapter 201 of the Agriculture Code. Rather, as has been noted, that entity is created by special act
of the legislature to focus on the development of a regional water quality plan for certain counties.
See Tex. Att’y Gen. LO-98-124. Letter Advisory No. 150 provides a well reasoned and persuasive
legal analysis in concluding that the term “soil and water conservation district,” for purposes of
article XVI, section 40, should be narrowly construed to apply only to those entities actually
designated as such by the legislature. See Tex. Att’y Gen. LA-150 (1978) at 2. Opinions subsequent
to Letter Advisory No. 150 have aftirmed the specialized meaning of the term “soil and water
conservation district.” See, e.g., Tex. Att’y Gen. Op. No. JM-172 (1984) at 3 (river authorities do
not constitute “soil and water conservation districts” within the meaning of article XVI, section 40);
Tex. Att’y Gen. LO-go-18 (Red River County Water District is not a “state soil and water
conservation district”). Additionally, the legislature has met in regular session ten times since 1978
without casting doubt on the conclusion of that opinion. While it is easy to discern the basis for
confusion stemming from the two opinions, we are obliged to determine that the GCWDA is not a
soil and water conservation district under the meaning of article XVI, section 40, and that
consequently, a member ofthe GCWDA is not thereby excepted from the constitutional prohibition.
To the extent that Letter Advisory No. 3 1 may be read to conclude otherwise, we confirm its earlier
demise and expressly overrule the opinion.’
You also contend that, even if the GCWDA is not a soil and water conservation district, its
officers are not precluded from simultaneously holding the offices of municipal judge and GCWDA
director, by virtue of the benefit proviso of article XVI, section 40. That proviso states:
It is further provided that a nonelective State officer may hold other
nonelective offices under the State or the United States, if the other
office is ofbenefit to the State of Texas or is required by the State or
Federal law, and there is no conflict with the original office for which
he receives salary or compensation.
‘Letter Advisory No. 3 l( 1973) was incorrect in distinguishing between a “public office” and a “civil office.“;
see Tex. Att’y Gen. Op. No. M-480 (1986). The term “civil office” is used in the Texas Constitution in contrast to the
term “military of&x." See nlsoBLACKS LAW DICTIONARY 224 (5thed., 1979) (A civil office is “[a] non-military
public office; one which pertains to the exercise of the powers or authority of govemment.“).
The Honorable J. E. “Buster” Brown - Page 4 (X-0095)
TEX. CONST. art. XVI, 5 40. This office addressed the benefit proviso in a 1996 opinion that
considered whether an individual was permitted by article XVI, section 40, to simultaneously hold
more than one municipal judgeship. See Tex. Att’y Gen. Op. No. DM-428 (1996). The opinion
concluded that, while the legislature is the appropriate body to determine, as a general matter,
whether, and under what circumstances, the holding of multiple offices is ofbenefit to the state, the
resolution of the benefit question in a particular instance requires a factual determination which this
office cannot undertake in the opinion process2 See id. at 3-4. Subsequently, in Letter Opinion No.
97.027, this office considered whether an individual could simultaneously hold the positions of
assistant municipal judge and director ofthe Brazes River Authority. That opinion determined that
“a member of the board of directors of the Brazos River Authority may not simultaneously serve as
a municipal judge unless a court finds that the holding of the second office is ‘ofbenefit to the State
of Texas.“’ Tex. Att’y Gen. LO-97-027, at 2.
In our view, the circumstances you describe present a similar dilemma. While we have no
doubt that the individual in question provides a clear benefit to the state in both of his positions, it
is not for us to make the determination that the holding of both offices satisfies the constitutional
requirement, We conclude that, absent a legislative or other appropriate determination that a person
who is a municipal judge benefits the state by holding a second office, an individual may not
simultaneously serve as a municipal judge and as a director of the Gulf Coast Waste Disposal
Authority. Attorney General Letter Advisory No. 3 1 (1973) is overruled.
‘In response to Attorney General Opinion DM-428, the legislahlre authorized the holding of rn~~e than OX
municipal judgeship. See TEX. GOV’T CODE ANN. 5 574.001(b) (Vernon Supp. 1999).
The Honorable J. E. “Buster” Brown - Page 5 (JC-0095)
SUMMARY
The Gulf Coast Waste Disposal Authority is not a soil and
water conservation district under the provisions of article XVI,
section 40, of the Texas Constitution. Whether the simultaneous
holding of the offices of municipal judge and director of the Gulf
Coast Waste Disposal Authority is of benefit to the State of Texas
presents questions of fact which cannot be resolved in the opinion
process. Attorney General Letter Advisory No. 31 (1973) is
overruled.
Yo rs very tml ,
4 i c&L-q-
JOi-IN CORNYN
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK RENT ERVIN
Deputy Attorney General - General Counsel
ELIZABETH ROBINSON
Chair, Opinion Committee
Rick Gilpin
Assistant Attorney General - Opinion Committee