The      Honorable              Joe        D.     Carter,          Chairman                         Opinion           No.       H-     165
Texas         Water          Rights          Commission
P.     0.     Box       13207                                                                       Re:          The      constitutionality
Austin,            Texas       78711                                                                            of Legislation                   setting
                                                                                                                a four-year                     term     of
                                                                                                                office         for      the Red          River
Dear        Mr.        Carter:                                                                                   Compact               Commissioner


             You     have        asked           whether          House          Bill      1567 of the            63rd         Legislature                 (Laws
1973,        ch.     656,      p.        1782),        setting         the     term        of office           of the Red              River           Compact
Commissioner,                       is    constitutiona,l.                   Section         2 of that          Act      would         amend            $45.002
of the       Water           Code,.        V.. T. C.S.,              to read:


                                         “The      commissioner                    first     appointed             under          this
                        Act      holds           office      until       February             1, 1975 and              until       his
                         successor                is    appointed            and      qualified.               Thereafter,
                        the      commissioner                     or     his     successor              holds         office         for
                         successive                terms         of four         years        from         February               I,    1975. ”


             Article          16,        § 30,     of the        Texas         Constitution               provides             that        “[t]he       duration
of all       offices         not fixed            by this        Constitution                sha.LL never              exceed           two       years.       . .   .‘I
Section         30a      of Article               16 permits             certain           exceptions            not applicable                     here,


             The       Red     River             Compact          Commissioner                    is    appointed              by the            Governor,
with        the advice           and       consent          of the          Senate:


                         “to     represent                this    state        in conferences                  with      duly
                        appointed                compact          commissioners                        of other         affected
                         st.ates          and     a United           States          representative                appointed
                         by the           president,             to negotiate              a compact              with         each        of
                         the affected                  states     respecting                the     use,        control,             and
                         disposition               of the water                of the Red              River      and       its
                         tributaries.”                    ($45.001,             Water         Code,         V. T. C. S.,                as
                        amended                 by House          Bill         1567,       supra)




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The      Honorable             Joe      D.      Carter,            page      2 (H-165)




He     does      not have             the authority                to bind        the    state      as:


                        “[a]ny         agreement                 which      may         be entered           into      between
                        the    commissioner                       on behalf          of this        state       and     the
                        compact              commissioners                    of the       other       affected          states
                        and      the        representative                 of the       United        States        shalt       be
                        reduced             to writing             and     submitted           to the        governor            of
                        this     State.             No     such         agreement          has      any      binding          effect
                        upon      this        state        or     its    legal     representatives                    until     it
                        has      been         ratified           by the     Legislature             of this       state        and
                        approved              by the        governor,              ratified         by the       legislatures
                        of the         other         affected           states,      and      consented             to by the
                        Congress               of    the    United         States.       ” ($45.007,                Water            Code,
                        V. T. C. S.)


           We       believe           the    Red         Ri,ver         Compact         Commissioner                   holds         an office
within        the      purview          of Art,icle              16,     $ 30, of the        Texas          Constitution.                   See
generally           Attorney            General             Letter         Advisory           No.      63 (1973).              Although              he
cannot         bind     the     state         to an agreement,                     he is      the     statutorily             created             exclu-
sive     conduit         by which              the       state      may      negotiate           a compact             respecting                 the
Use,      control         and     disposition                   of the water             of the       Red     River           and     its       tributaries.
As     such      we     are      of the         opinion           that    he exercises                a portion          of the         sovereignty
of the        state.


          An        additional              reason,         although             not in itself            determinative,                    for    finding
that     the     commissioner                       occupies            an office        under        Article         16,      $ 30,        of the
Constitution             is    the      Legislature’s                    reference         to his         term        of office,            ($45.002,        Water
Code,          V.T.C.S.,               as amended                  by H. B.          1567,       supra),         and      to the        requirement
that     he     take     the     constitutional                   oath     of office          ($45.    003,       Water          Code,            V. T. C.S.).
See,      Robertson              v.     Ellis         County,            84 S. W.        1097 (Tex.             Civ.App.,              1905,         no writ).


           A     memorandum                     submitted               by your     office           suggested           the possible                 relevancy
of Attorney              General             Opinion            M-814       (1971).     We          agree    with         the author                of that
memorandum                    that     the      reasoning            of Attorney              General   Opinion  M-814   is                               inappli-
cable         to the     present             quest.ion.             That opinion              was based   on a surrender                                  of state
sovereignty              through             ratification               of a compact.                 Here       there        has      been        no ratifi-
cation.          As     A,ttorney             General             Opinion         M-814       is    clearly         inapplicable                  to the       Red




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    The      Honorable                   Joe          D.     Carter,            page      3 (H-165)




    River          Compact                Commissioner,                          we      need     not consider              the validity            of the
    reasoning               on which                  it is       based.


                   It is     therefore                 our        opinion         that     the     Red     River         Compact            Commissioner
    is    limited           by the             Constitution                to a term             of two         years.         The     constitutional
    invalidity              of the            provision              of the       bill    setting         the     commissioner’s                   term         of
    office         at four          yea.rs            does         not affect            the remainder               of the       statute.              Acts     1973,
    63rd       Leg.,              ch.     45,         p.      69.


                   You      have          also         asked         whether             House      BiU         1567 may          be considered                 as
    “passed”               as      required                 by item            14 on page          III-156        of the     General             Appropriations
    Act      for     fiscal             years          1974 and 1975 which                        set    the      commissioner’s                   salary            at
    $12,000           but provided                         that     “[s]uch          salary       rate     is     made      contingent             upon        passage
    of House               Bill         No.      1567.”             Section           3 of House           Bill      1567 amended                 5 45.004,           Water
    Code,           V. T. C. S.,                 which            had     establi.shed             the     commissioner’s                   salary         as    $6,600
    per      year.            Under             House             Bill    1567 the         commissioner’s                    salary         is    to be deter-
    mined           by the          Legislature                     in the       appropriation               bill.       Our      decision          regarding                    52
    of the bill             affects             neither             the    passage            of the     bill     nor     the validity             of    § 3. Accord-
    ingly,         it is        our       opinion             that       the    requirement                set    out     in the appropriations                           bill
    has      been        met        and         that        the     commissioner                   may       receive        a salary             of $12,000               per
    year.


                                                                                       SUMMARY


                                                Legislation                providing             a four-year              term       of office
                                  for     the     Red         River            Compact           Commissioner                is     unconsti-
                                  tutional;            however,                the     remainder             of the       statute      is    not
                                  affected             by the invalidity                   of the        section         establishing             the
                                  longer          term,             and    the       legi.slation          may       be considered
                                  “passed”                 where          other       legislation           is    contingent           upon
                                  that        fact.




                                                                                     I/         Attorney          General         of   Texas




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        The   Honorable    Joe    D.   Carter,    page   4     (H-165)




        APPRO‘VED:




        DAVID     M.   KENDALL,        Chairman
        Opinion   Committee




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