                      OF        EXAS




                      April 14, 1969

Hon. John Wright, Chairman            Opinion   No. M-372
Interstate Cooperation
  Committee                           Re:   House Bill No. 726
House of Representatives                    Relating to powers of
Capitol Station                             the Interstate Compact
Austin, Texae                               Commlssloner.
ear   Mr. Wright:
       Your recent letter addressed to this office requests
our consideration of the constitutional problems raised in
connection with House Bill No. 726.
       Rouse Bill 726 proposes to amend Article 7466g, Vernon's
Civil Statutes, and to repeal one section of each of the Acts
ratifying and Implementing one of the four lnteretate river
compacts to which Texas la a party.
       If the bill were enacted and held valid a result would
be that, on the effective date of the bi,ll,the person hold-
ing the office of Interatate Compact Commissioner, created
under the provisions of Chapter 380, Acts of the 51st LegIs-
lature, Regular Session, 1949 (Article 7466g, Vernon's Civil
Statutes), would represent Texas on all commissions or ad-
ministrations created under Interstate river compacts to which
Texas is a party. He would also exercise the powers provided
under those compacta as the Texas representative. The person
representing Texas under each one of the four compacts would
be relieved of his duties and authority. The Interstate Com-
pact Commissioner would also represent Texas In negotiations
looking to forming a Red River Compact.
       For the reason that your request does not specify any
particular aspects of the bill for e,onslderatlon,we conclude
that you are Interested In a full discussion thereof. Our con-
sideration will thus be confined to the constitutional problems
a8 they relate to the text of each compact, the federal eta-
tutee Involved, the Texas statutes ratifying the compacts, the
text of W.B. 726 and statutes of other signatory states.




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Hon. John Wrlght, page 2(~-372)

                     Constitutional Problems
       We are of the opinion that H.B. No. 726, as submitted,
is unconstitutional at least to the extent that It would pro-
vide a six year term for an office In contravention of Article
16, Section 30, Constitution of the State of Texas, which pro-
vides "The duration of all offices not fixed by this Constitu-
tion shall never exceed two years.'
       In reaching this conclusion we have determined that the
bill would provide for an "office" within the meaning of Artl-
cle 16. Section 30. The characteristics of a !'oubllcoffice"
are discussed at-length in Attorney General OpInIonNo. c-528
(WS),   at pages 2509 et seq., citing Kimbrough v. Harnett,
93 Tex. 301, 55 S.W. 120 (1900), wherein the court quoted with
approval Mechem on Public Officers as follows:
            "A public office Is the right, authority,
             and duty created and conferred by law,
             by which for a given period, either fixed
             by law or enduring at the pleasure of the
             creating power, an Individual 1s Invested
             with some portion of the sovereign func-
             tions of the government, to be exercised
             by him for the benefit of the public."
       Your attention is also invited to Ooinlon No. C-528, at
page 2512, the quotation from Barney v. Hawkins, 257 P.-41i
79 Mont, 506  (1927), 53 A.L.R. 563, as to the meaning of the
term "office'.
       We are of the opinion that H.B. 726 purports to create,
or continue, an "office" within the meaning of Article 16,
Section 30, with a term greater than permitted by the Consti-
tution.
       A constitutional problem under H.B. 726 also arises in
connection with appointment of personnel.
       Section 2 of H.B. 726 repeals the section of each sta-
tute under which the Rio Grande, Pecos, Canadian, and Sabine
compacts were ratified and Implemented. Outright ,repeal of
these sections terminates the authority expressly provided in
certain of these sections for making Investigations, appolnt-
lng engineering, legal, and clerical aid, and for incurring
other expenses. This authority Is not expressly given to the
Interstate Compact Commissioner under H.B. 726.


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  .




Hon. John Wright, Page 3(M-372)




       In view of the prohibitions of Article 3, Section 44,
of the Conetttution of Texas against employment of any one
In the name of the state unless authorized by pre-existing
law, we are of the opinion that statutory provlslon must be
made for such personnel, as well as for related expenses.
Arguably the authority Is Implied under language In Section
4 transferring funds to be expended for the purposes authorl-
zed In appropriations made to the Individual commissioners,
but we think this is not sufficient to comply with Article
3, Section 44 of our Constitution.

       The problem could be met by suitably amending Sectlon
2 of each statute to preserve this authority, or by provid-
ing the authority in H.B. 726.  In either event, notice should
be taken of language In the varlou8 compacts which authorizes
the Commlsslons to employ personnel, and of language In the
eections proposed to be repealed that qualifies the power of
the Texas commissloner to obligate the state for expenditures
made jointly wlth other states.
       The question is raised as to whether H.B. 726 contra-
venes the prohibition of Article 16, Section 40, Conetltu-
tion of the State of Texas, against holding more than one
civil office. We answer this question in the negative. The
intent of the Legislature and the effect of the bill IS
clearly that there 1s created, or continued, only the one
office of Interstate Compact Commissioner, and that the per-
son holding that office has the additional duty of repre-
senting this state on the designated commlaalons and admlnis-
tratlons. This is permissible under Texas Turnpike Authority
v, Shepperd, 154 Tex. 357, 279 S.W,2d 302 (1955), and authorl-
ties cited therein.
       In view of the foregoing decision, a statute  providing
for the appointment by the governor of an Interstate Compact
Commissioner and expressly providing that the person who
holds that office is also ex-officio the Rio arande.Compact
Commissioner, the Pecos River Compact Commissioner, the Cana-
dian River Compact Commissioner, and a member of the Sabine
River Compact Administration, without additional compensation,
would be more in the format of the compacts, would be consis-
tent with the provision made in some of the compacts for rep-
resentatives of other states, and would bring the statute
more certainly under the rule of Texas Turnpike Authority V.
Shepperd, supra.



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                                                             .




Hon. John Wright, page 4 (M-372)




         In this connection, see Article XII of the Rio Grande
Compact, which provides that “The State Engineer of Colorado
shall be ex-officio the Rio Qrande Compact Commissioner for
Colorado”, and that “The State Engineer of New Mexico shall
be ex-officio the Rio Grande Compact Commissioner for New
Mexico”.    Note also that Article VII(c) of the Sabine Com-
pact provides that “One of the Louisiana members shall be
ex-officio the Director of the Louisiana Department of Pub-
lic Works ‘I.
       With further reference to conforming to the compacts,
notice should be taken of the fact that the Sabine Compact
provides in Article VII for an “Administration” consisting
Of “members” . Our statute should adopt the same terms where
applicable.
                    Text of the Compacts
       Each compact creates a “commission” or an “adminis-
tration”, and prescribes the manner of selecting representa-
tives from member states.
       Article XII of the Rio Grande Compact provides that
the Rio Grande Compact Commissioner for Texas shall be appoint-
ed by the Governor of Texas.
       Article V of the Pecos Compact provides that “The
Commlsslon~shall be composed of one Commissioner representing
each of the states...‘I,and Article IX of the Canadian Com-
pact provides that “The Commission shall be composed of three
(3) Commissioners, one (1) from each of the signatory states...‘,
In each designated or appointed in accordance with the laws
of the State.
       Article VII(b) of the Sablne Compact provides that the
Administration shall consist of two members from each state,
and Article VII(c), as amended, provides that the Texas mem-
bers shall be appointed by the governor for a term of six
years.
       We are of the opinion that the provision in Section 1
of Article 7466g, Vernon’s Civil Statutes, ae set out in H.B.
726, to the effect that the Interstate Compact Commissioner,
appointed by the governor, shall represent the State of Texas




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Ron. John Wright, Page 5(M-372)




on the commissions there named, is sufficient to designate
or appoint a representative to each such body, and complies
with the requirements of all compacts as to the method of
appointment. We have pointed out that some of the compacts
 rovide for representatives who serve lnanex-officio capa-
t&r-
       A problem does arise, however, because of the provl-
slon in the Sabine Compact for six year terms for Texas mem-
hers,
        The Sabine Compact as originally adopted provided for
two year terms for Texas members, as did the statute ratlfy-
lng the Compact. Under the provisions of Chapters 19 and
192, Acts of the 57th Legislature, R.S., 1961, the compact
and the Texas atatute were amended to provide six year terms
for Texas members. Section 5 of Chapter 19, the emergency
clause,  reads as follows:
           “Sec. 5. The fact that annual appolnt-
            ments are made by the Qovernor of the
            State of Texas pursuant to the Sablne
            River Compact which results In uncer-
            tainty by the State of Louisiana, and
            the fact that It Is to the best In;
            terest of the people of Texas to pro-
            tect the rights of its citizens to have
            longevity In terms of office by Texas
            members of the Sabine River Compact
            Administration In compliance with the
            Constitution of the State of Texas,
            creates an emergency..... .”
       We observe,therefore,that a Texas statute creating the
office of Interstate Compact Commissioner with’a two year
term and providing that the holder of the office is ex-officio
a member, or shall represent the state as a member, of the
Sabine River Compact Administration would still not conform
to the requirements of the compact as amended. A constltu-
tional amendment or a compact amendment would remedy the prob-
J&m..




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Hon. John Wright, page 6(~-372)




                       Federal Statutes
       All interstate river compacts must be approved by the
Congress of the United States, and If It is found necessary
or desirable that signatory states amend a compact, then Con-
gressional consent will be necessary. See Act of March 16,
1962, Pub.L. 87-418   6 Stat. 34, consenting to the amended
form of Article VIIfcI of the Sablne Compact under which six
year terms were provided for Texas members.
            Texas Statutes    Ratifying the Compacts
       H.B. 726 would repeal entirely Section 2 of the stat-
ute ratifying and implementing each compact. We have sugges-
ted that provisions providing for employment of personnel be
preserved or incorporated In H.B. 726. See Constitutional
Problems, this opinion.
                       Text   of H. B. 726

       In addition to provisions earlier discussed In this
opinion, the following provisions should be noted:
   1.   Section 4 of Article 7466g provides that "Funds
        appropriated for the biennium beginning Septem-
        ber 1, 1969,*....are hereby transferrad to the
        Interstate Compact Commissioner..... . The
        effective date of H.B. 726 Is February 1, 1970,
        hence no provision for transfer of funds may be
        effective until that date. If this Is not the
        Intended result this provision should be clarl-
        fled.
   2.   On line 13, page 3, of the bill, the words "as
        amended" should be inserted following '1951'.
              Statutes of Other Signatory States
       We find nothing In the statutes of other signatory
states, other than the provision In Article VII(c) of the
Sabine Compact for six year terms for Texas members, that
would preclude the adoption of the arrangement contemplated
under H.B. 726.




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Ron. John Wright, page 7(M-372)




                          SUMMARY
            H.B. 726 as submitted is unconstitutional to
            the the extent that It would provide a six
            year term for an office in contravention of
            Article 16, Section 30, Constitution of the
            State of Texas.
            There is also under the bill a constitutional
            problem in connection with the appointment of
            employees not authorized by pre-existing law.
            Article 3, Sectlon 44, Constitution of the
            State of Texas.
            The Sablne compact provides that Texas mem-
            bers shall have a term of six years. There-
            fore, a Texas statute providing for repre-
            sentation by an official appointed for a
            two year term would not conform to the re-
            quirements of the compact. Any amendment
            to a compact requires the approval of the
            Congress of the United States.
            H.B. 726 Is not effective to transfer funds
            until February 1, 1970.
                                    /7




                                         General of Texas
Prepared by
James S. Swearlngen
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
George Kelton, Vice-Chairman
Roland Allen
Pat Bailey
Harold Kennedy
Sally Phillips
W. V. GEPPERT
Staff legal Assistant
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