         THE      ATNBECNEY              GENERAL

                      OF     -XAS




The Honorable Tom Hanna                  Opinion No. H-855
Criminal District Attorney
Jefferson County                         Re: Appointment and
P. 0. Box 2553                           compensation of drainage
Beaumont, Texas 77704                    district commissioners in
                                         Jefferson County.

Dear Mr. Hanna:

     you have submitted two opinion requests concerning the
relationship of the Drainage District Commissioners of
Jefferson County to the Jefferson County Commissioners
Court. Questions 1 and 2 of the first request are as
follows:

          1. Does the Commissioners' Court have
          the authority to determine the rate of
          compensation to be paid to the Commis-
          sioners' of Drainage Districts 3, 6,
          and 7?

          2. Are the Drainage District Commissioners'
          elected or appointed for Drainage Districts
          3, 6, and 7?
     With respect to Drainage District No. 7, Acts 1971, 62nd
Leg., ch. 182 at 994, amending Acts 1962, 57th Leg., 3rd C.S.,
ch. 34, adds section 4a, which provides:
          The Commissioners Court of Jefferson County,
          Texas, shall fix the salary as compensation
          of the commissioners of Jefferson County
          Drainage District No. 7, for their services
          for the time actually engaged in the work of
          the district; said salary shall not exceed
          Three Hundred Fifty Dollars ($350.00) per
          month, which salary shall be fixed by order
          of the Commissioners Court. . . .




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The Honorable Tom Hanna - page 2 (H-855)



This Act makes it clear that the Commissioners Court of
Jefferson County has the authority to determine the rate of
compensation for the Commissioners of Drainage District No. 7,
up to the amount of $350.00.
     Section 4 of Acts 1962, 57th Leg., 3rd C.S., ch. 34 at
102, determines the method of appointing Commissioners for
Drainage District No. 7 by providing that article 8118,
V.T.C.S. (now section 56.061, Water Code) shall be applicable.
Section 56.061 states:

          When a district is established, the
          commissioners court shall appoint . . .
          directors for the district.

Additionally, section 4 of the above referenced Act specifically
states that article 8119 (now section 56.064, Water Code)
shall not apply to Drainage District No. 7. Section 56.064
provides for the election of Drainage District Commissioners
upon petition by a majority of the real property taxpayers
of a district. Therefore, as to Drainage District No. 7,
Commissioners are appointed rather than elected.

     The method of determining the compensation of Commissioners
in Drainage District No. 6 is set out in Acts 1961, 57th
Leg., R.S., ch. 349, 9 10 at 757, wherein it is provided
that the "compensation shall be fixed by an order of the
Commissioners Court of Jefferson County, Texas" in an amount
not to exceed $350.00 per month.

     With regard to the question of election or appointment
of Commissioners of Drainage District No. 6, section 4 of
the above referenced Act provides that "the General Laws . . .
relating to drainage districts shall apply . . . ." The
applicable General Law, section 56.061 of the Texas Water
Code, as pointed out in relation to Drainage District No. 7,
determines that Drainage District Commissioners are to be
appointed rather than elected. However, since the Act
creating Drainage District NO. 6 does not delete section
56.064 of the Water Code, Commissioners may also be
elected upon petition of a majority of the real property
taxpayers.




                        p.   3606
The Honorable Tom Hanna - page 3 (H-855)



      According to your accompanying brief, Drainage District
No. 3 was created under the General Law applicable to drainage
districts, now Chapter 56 of the Water Code. Section
56.067 provides that "[tlhe commissioners court shall establish
the amount of compensation [for drainage district commissioners]
by order" in an amount not to exceed $7.50 per day. Again,
sections 56.061 and 56.064 apply to Drainage District No. 3,
and therefore, the Commissioners are appointed rather than
elected except where an election is requested by petition of
a majority  of the real property taxpayers.

     Your second request concerns only Drainage District No.
7, and asks:

          1. Is the provision for the appointment
          of five Commissioners for Drainage District
          7 with no more than one Commissioner from
          each municipality unconstitutional as a
          violation of the 'one man, one vote'
          principle?

          2. If the Drainage District Commissioners
          were elected, would the one Commissioner peer
          municipality provision be unconstitutional?

          3.  Is it unconstitutional to require a
          majority of real property tax,payers to
        : petition the Commissioners Court for
          election of Drainage District Commissioners?

     Inherent in the first question is the issue of whether
the provision for appointment rather than election of Drainage
District Commissioners is, in itself, violative of the "one
man, one vote" principle.  This issue was considered in Fortson
v. Morris, 385 U.S. 231, 233 (1966), where the Court found
sat there was no constitutional requirement "intended to
compel a State to elect its a . D state officers or agents
through elections of the people rather than through selections
by appointment. . . ." The Court narrowed this holding in
Sailors v. Board of Education --
                              of the County of
                                            -- Kent [herein-
after cited as Sailors]:




                           p. 3607
The Honorable Tom Hanna - page 4 (H-855)



         We find no constitutional reason why state
         or local officers of the nonlegislative
         character . . . may not be-chosen by . . .
         appointive means rather than by an election.
         387 U.S. 105, 108 (1967). (Emphasis added).

     Although the Court did not specifically define "non-
legislative," they held that the local school board being
considered in Sailors performed essentially administrative
functions.   In determining that the school board was admin-
istrative rather than legislative in nature the Court con-
sidered the board's functions in the appointment of a county
school superintendent, preparation of an annual budget and
levy of taxes and distribution of delinquent taxes. - Id. at
104 n. 7.

     Section 3 of Acts 1962, 57th Leg., 3rd C.S., ch. 34
describes the powers, privileges and functions given Jefferson
County Drainage District No. 7. Included in these are the
power to provide protection against floods, to construct,
maintain and improve drainage systems, to contract with
state agencies or municipal corporations to acquire land,
to employ personnel, to dispurse monies of the District and
to provide for and administer a retirement, disability and
death fund for District employees.    (Sec. 3 at 100-101). In
our opinion, the functions of the Board of Drainage District
Commissioners clearly fall within the purview of the Supreme
Court's description of a "nonlegislative" local body set out
in Sailors. Therefore, since the choice of members of the
Boardrainage       District Commissioners does not involve
an election and since none is required for these nonlegisla-
tive offices, the principle of "one man, one vote" has no
relevancy. - See Sailors, supra at 111.

     The second and third questions of your second request
are rendered moot by the specific exemption of Drainage
District No. 7 from the Water Code provision requiring the
election of Drainage District COINIIiSSiOnerS upon petition
by a majority of the real property taxpayers.




                           p. 3608
The Honorable Tom Hanna - page 5 (H-855)



                       SUMMARY

            The Commissioners Court of Jefferson
            County has the authority to determine
            the compensation to be paid Commissioners
            of Drainage Districts 3, 6 and 7 within
            the governing statutory limitations.
            Drainage District Commissioners in Districts
            3 and 6 are appointed by the Commissioners
            Court. However, an election for Drainage
            District Commissioners in Districts 3 and 6
            may be called by petition of a majority  of
            real property taxpayers. As to Drainage
            District No. 7, Commissioners are appointed
            by the Commissioners Court with no provision
            for their election. The appointment of no
            more than one Commissioner from each munici-
            pality in Drainage District No. 7 does not
            violate the "one man, one vote" principle.

                                   Very truly   yours,




APPROVED:




jwb




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