                                             The Attorney          General of Texas
                                                               December 3, 1981
MARK WHITE
Attorney General



Supreme      Court Building
                                           Mr. A. C. Spencer                      Opinion No.   ~~-403
P. 0. Box 12548                            Executive Director
Austin.    TX. 78711                       Texas State Soil and Water             Re: Construction of constitu-
512/475-2501                                  Conservation Board                  tional dual office exemption
Telex    910/874-1387                      P. 0. Box 658                          for directors of SOil and
Telecopier      5121475.0266
                                           Temple, Texas   76501                  water conservation districts

1607 Main St., Suite          1400         Dear Mr. Spencer:
Dallas. TX. 75201
214174243944
                                                You ask:

4824 Alberta       Ave., Suite       160                  1. Does the constitution of the state of
El Paso, TX.       79905                             Texas... and Texas law permit a director of a
9151533.3484                                         local soil and water conservation district to
                                                     serve on the State Soil and Water Conservation
1220 Dallas Ave., Suite             202
                                                     Board at the same time?
Houston,      TX. 77002
7 131850-0868                                             2. Is it legal for a local soil and water
                                                     conservation district director to qualify and
                                                     serve in the Texas Legislature at the same time?
806 Broadway,         Suite   312
Lubbock,     TX.    79401
8061747-5238                                    Soil and water conservation districts are created as governmental
                                           subdivisions of the state pursuant to article XVI, section 59 of the
                                           Texas Constitution and article 165a-4, V.T.C.S., the State Soil
4309 N. Tenth,     Suite      6
                                           Conservation Law.   They are public bodies corporate and politic.
McAllen,     TX. 78501
512/682-4547
                                           V.T.C.S. art. 165a-4, §3(1).      Their directors (formerly called
                                           "supervisors") are elected locally, except that the two initial
                                           directors of a district are appointed by the Soil and Water
200 Main Plaza. Suite 400                  Conservation Board, a state agency created by the same legislative
San Antonio,  TX. 78205
                                           act. -Id. §§5,6. Persons occupying any of the offices about which you
512/225-4191
                                           ask, legislators, members of the Soil and Water Conservation Board,
                                           and district directors, hold civil offices of emolument. See Tex.
An Equal       Opportunity/                Const. art. III, 924; V.T.C.S. art. 165-4a, §§4D, 6(h). cf. Attorney
Affirmative      Action     Employw        General Opinion V-1445 (1952).

                                                Section 40 of article XVI of the Texas Constitution generally
                                           prohibits one person from holding at the same time more than one civil
                                           office of emolument. It has been amended several times to provide for
                                           exceptions, however, and in 1972 it was amended to make an exception
                                           for officers of state soil and water conservation districts.




                                                                    p. 1367
                                                                         -   .

Mr. A. C. Spencer - Page 2   (Mw-403)



     Section 40 of article XVI original~lyprovided:

          No person shall hold or exercise, at the same
          time, more than one civil office of emolument,
          except that of justice of the peace, county
          commissioner, notary public, and postmaster,
          unless otherwise specially provided herein.

Tex. Const. art. XVI, 840 (1876).          This straightforward and
easy-to-understand provision applied only to a,         not military,
officers but the provision has been complicated in the last half
century. In 1926, the section was amended to except military offices
from the prohibition against holding more than one civil office. The
1972 amendment placed exceptions for directors and other officers of
soil and water conservation districts in the proviso applicable to
military officers. At the same time a number of other changes were
made and other exceptions were created, but none of the others tracked
the "military" proviso. -.See S.J.R. No. 29, Acts 1971, 62nd Leg., at
4133.

     Article XVI, sectjon 40 now reads in pertinent part:

          No person shall hold or exercise at the same time,
          more than one civil office of emolument, except
          that of... retired enlisted men of the United
          States Army, Air Force, Navy, Marine Corps, and
          Coast Guard, and the officers and directors of
          soil and water conservation districts, unless
          otherwise specially provided herein. Provided,
          that nothing in this Constitution shall be
          construed to prohibit an officer or enlisted man
          of the National Guard... and retired enlisted men
          of the United States Army, Air Force, Navy, Marine
          Corps, and Coast Guard, and officers of the State
          soil and water conservation districts, from
          holding at the same time any other office or
          position of honor, trust or profit, under this
          State or the United States, or from voting at any
          election, general, special or primary in this
          State when otherwise qualified.... No member of
          the Legislature of this State may hold any other
          office or position of profit under this State, or
          the United States, except as a notary public if
          qualified by law.

     The insertion of the new exemptions for directors of soil and
water conservation districts so as to be coupled with and parallel to
the exemptions for persons occupying military positions is important
because the exemption for military persons is more far-reaching than
other section 40 exemptions. It provides that "nothing in this
Constitution shall be construed to prohibit" certain military officers
or enlisted men from holding at the same time any other office or




                               p. 1368
Mr. A. C. Spencer - Page 3   (m-403)



position of honor, trust or profit under this state or the United
states. (Emphasis added). This language has been given a literal
interpretation by the Texas Supreme Court. See Cramer v. Sheppard,
167 S.W.2d 147 (Tex. 1942); Carpenter v. Sheppard, 145 S.W.Zd 562
(Tex. 1940).

     Although none of the reasons recited by these courts for favoring
military officers with such an overriding constitutional provision are
applicable to directors of soil and water conservation districts, we
cannot ignore the extremely broad construction the supreme court has
previously given the particular language of section 40, nor the
placement of soil and water district officers with respect thereto.
We are therefore obliged to advise you that directors of soil and
water conservation districts may legally occupy at the same time any
other civil office of emolument without violating the constitution,
and that no provision contained in the constitution at the time the
1972 amendment was adopted which restricts dual officeholding is
applicable to them. See, e.g., Tex. Const. art. II, §l (separation
of powers), art. III, §§18,19 (legislators); art. XVI, $548
(incompatibility), 65 (candidacy for office).

     The 1972 amendment also added the last sentence of section 40,
reading: "No member of the Legislature of this State may hold any
other office or position of profit under this State, or the United
states, except as a notary public if qualified by law." (Emphasis
added).   It is possible to read the phrase, "other office or
position," in a way that avoids another section 40 internal conflict.
In order to make the last sentence of the section harmonize with the
construction previously given by the supreme court to the "nothing in
this Constitution" clause, it should be read as referring to military
office or soil and water conservation district office,

     The supreme court has not retreated from the views expressed in
Cramer v. Sheppard, supra, and Carpenter v. Sheppard, supra. with
respect to the "military" exemptions, and we cannot presume it would
now rule that legislators who accept positions in the National Guard
vacate their legislative posts. Since the constitution requires us to
apply to officers of soil and water conservation districts the same
constitutional exemptions applicable to officers of the state National
Guard, we conclude that directors of local soil and water conservation
districts may legally serve on the State Soil and Water Conservation
Board. We also conclude that directors of local soil and water
districts may legally qualify and serve in the Texas Legislature, at
the same time.

                             SUMMARY

              Local soil and water conservation district
         directors may legally serve on the State Soil and
         Water Conservation Board at the same time. Such
         directors may legally qualify and serve in the
         Texas Legislature at the same time.




                               p. 1369
Mr. A. C. Spencer - Page 4     (NW-403)




                                          Very truly yours,



                                                    WHITE
                                          Attorney General of Texas

JOHN W. FAINTER, JR.
First Assistant Attorney General

RICHARD E. GRAY III
Executive Assistant Attorney General

Prepared by Bruce Youngblood
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Susan L. Garrison, Chairman
James Allison
Jon Bible
Rick Gilpin
Jim Moellinger
Bruce Youngblood




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