              THE    ATTORNEY    GENERAL
                        OF TEXAS

                           Amary 26, 1988




     Honorable David II. Cain                Opinion No. JM-847
     Chairman
     Committee on Transportation             Re: Whether legislator may
     Tsxas House of Representatives          receive payment     from a
     P. 0. Box 2910                          state agency  for serving
     Austin, Texas   78769                   as special commissioner in
                                             condsmnation proceedings
                                             (RQ-1262)

     pear Representative   Cain:

          you request advice on the following question:

               If a member of the legislature serves as
            a special commissioner   in a condemnation
P           proceeding under the Property Code, is that
            legislator entitled to remuneration by the
            State Department   of Highways   and Public
            Transportation?

          The law of eminent domain is set out in chapter 21 of
     the Property Code.   If the state wishes to acquire   real
     property for public use but cannot agree with the property
     owner on the amount of damages, the condemning entity may
     begin a condemnation   proceeding. Property Code 521.012.
     Section 21.014 of the Property Code provides      for the
     appointment of special .comsissioners to determine     the
     value of the property:

                (a) The judge of a court in which a
            condemnation petition is filed or to which
            an eminent domain case is assigned      shall
            appoint three disinterested freeholders   who
            reside in the county as special commis-
            sioners to assess the damages of the owner
            of the propsrty bsing condemned. The judge
fi          appointing the special commissioners,   shall
            give preference to persons agreed on by the
            parties.   If a person fails to serve as a
            commissioner, the judge may appoint a re-
            placement.




                                   p. 4097
                                                                    ,

Honorable David B. Cain - page 2 (JM-847)




          (b) The special     commiseionere   shall
       swear to assess damages fairly, impartially,
       and according to the law.                               -.


          (c) Special oommissioners may compel the
       attendance of witnesses  and the production
       of testimony, administer  oathe, and punish
       for contempt in the same manner as a county
       jWw.
     The epeoial conieeionere  hold a hearing at which the
parties may offer evidence relevant      to the property
ovner*e damages.    Property Code 6621.015,   21.041.    The
cmieeionere    then aeeue     damages  according   to    the
evidence preeented   at the hearing and file a written
statement of their decision vith the court. Property Code
5521.042, 21.049.    If a party objects    to the special
commissioners* findings in accordance with   section 21.018
of the Property    Code, the court will try the case.
Property Code 521.018. If there are no timely objections,
the judge shall adopt the commissioners' findings     as the
judgment of the court. property Code 521.061. A judgment
in a condemnation proceeding is appealed   according to the
procedure applicable in other civil cases.    Property Code
521.063.

     The validity of commissioners0 proceedings depends on
strict compliance with the authorizing statutes.   citv of
u      v. Sea,       245 S.W. 749 (Tex. Civ. App. - Dallas
1922, writ ref'd).    Proceedings before  special  commis-
sioners are administrative rather than judicial.


ad hoc basis to serve as fact finders, although    in doing
80 they exercise povere not available     to petit jurors.
,$@s Attorney General Opinion WW-422 (1958).

     Section 21.047(c) of the Property      Code allows the
compensation for special commissioners      to be taxed as
court costs:

           (0) A court that has juriediction of an
       eminent domain proceeding   may tax $10 or
       more as a reaeonable fee for each epecial
                                                                -
       commissioner as part of the court costs of
       the proceeding.

Court costs in condemnation suits to secure rights of way
for state highways are paid from appropriations to the
State Department  of Highvays  and Public Transportation.



                         p. 4098
          Honorable David H. Cain - Page 2         ~4-847)



,-

          Attorney General opinion WW-472 (1958).     Thue, special
          commissioners appointed in suite to condemn land for state
          highvaye are paid from funds appropriated    to the State
          Department of Iiighvaye and Public Traneportation.    &;
          s             Attorney General opinion WW-422 (1958).

               You do not refu to specific provisions    of law which
          might be relevant to your guestion.       We will consider
          whether article III, section 18, or article    XVI, section
          40, of the Texas  Constitution vould prevent   a legislator
          from receiving compensation   from the State Department of
          Highways  and Public Transportation     for serving   as a
          special commieeioner.

               Article XVI, section       40, of    the Texas    Conetitution
          prwidee  in part:

                     No member of the Legislature of this State
                     may hold any other office or position   of
                     profit under this State, or the Unit;;
                     States, except as    a notary public
                     qualified by law.

          Tex. Const. art. XVI, S40 (last sentence).  If            a special
          commieeioner occupies an office or position of            profit, a
          legislator may not serve in that capacity.

                Judicial decieione and prior opinione of this office
          state as an essential element of an office that its duties
          are continuing in nature and not intermittent.      m    ~QQW
          y. Jm,        141 S.W.?d 698 (Tex. Civ. App. - Austin 1940,
          writ ref'd): see alsp J&&ar v. B-a              Co-       224
          S.W.2d 738 (Tax. Civ. APP. - Galveston 1949, writ ;efld)
          (quoting definition from w       v. Jw).       The court in
          wouuh      v. w,        55 S.W. 120, 122 (Tax. 1900) quoted
          Mechem on Public Officers to define      npublic office"   as
          follows:

                     \Public office is the right, authority,   and
                     duty created and conferred by law, m
                     iar a iveneeifher                 bv U
                                              e of the crw
                     D~YZT, an individual  is invested with some
                     portion of the sovereign    functions of the
                     government, to be exercised by him for    the
     ;-              benefit of the public.*   (Emphasis added.)

          55 S.W. at 122.      m   F.   Mechem, -Treatise       on the   Law of
               c Om,                        51 (1890).




                                        p. 4099
Honorable David H. Cain - Page 4 (JM-847)




     Opinione of this office have conetrued      the term
"office or position  of profits es it appeared in former
article XVI, section 33, of the Texas Constitution, vhich       -
prohibited the state accounting officere from paying the
salary of any

       agent, officer or appointee,   who holds at
       the same time any other office or position
       of honor, trust or profit, under this State
       or the United States. . . .

S.J.R. No. 7, Acte 1926, 39th beg., at 680.

     Attorney   General Opinion    O-2798  (1940) considered
whether a criminal district attorney could be compensated
for repreeenting the state in a oivil suit at the request
of the Attorney    General’s  Office.  The criminal district
attorney was an officer      subject to the prohibitions   of
former article XVI, section 33.       The opinion concluded,
however, that his employment as an attorney in one case
did not make him the holder of another woffice or position
of honor, trust or prof1t.e The opinion stated:

       If that were the caee, every practicing
       attorney would hold as many ~poeitions . . .
       under the State' as he had clients with
       pending suite. This is not the meaning    of
       the word *poeition~ in this connection.

Attorney General Opinion O-2798 (1940). s  -aton           v.
v,             708 S.W.ld 493 (Tex. APP. - Houston       [lst
Diet.] 1986, writ ref'd n.r.e.).

     Attorney  General Opinion V-371 (1947) concluded that
a state employee could receive a jury fee for serving as a
juror while on state payroll.     The opinion pointed   out
that neither   a grand juror nor a petit juror holds an
office within the meaning of the conetitutional provisions
prohibiting the holding of two officu.     Nor did  a juror
hold a wposition of honor, trust or profit, under this
State," within   former article XVI, section    33, of the
Texas Conetitution.    It cited the folloving    rule from
caeu of other states that

       [a] Qoeition~    is analogoue to an 'office*,            --.
       in that the duties that pertain to it are
       -and.                        . . .    (Emphasis
       added by Attorney   General opinion.)




                           p. 4100
      Honorable David H. Cain - Page 6         (J&847)




      Attorney     general   Opinion V-371     (1947),   g&&lg mard     of
                                                       ,  168 A. 162,  163
      (N.J. Sup. 1933); -th                                      of   Toya
      w,                82 A. 528, 529           (N.J. Sup. 1912).     The
      opinion stated as follove:

                 Service as a juror  totally  la&e the ele-
                 ments of permanency and continuity which are
                 leeential cheracterietice of an *office or
                 poeition~ as those terme are used in Section
                 33, of Micle   16, Texas Constitution.

      Attorney     general Opinion V-371     (1947).

            Attorney    general Opinion O-4313
                                             (1942) concluded that
      a umber of the State hoard of Education     could  also serve
      on the   Alien Enemy Hearing hoard, which heard cases
      involving alien enemies apprehended by the Department of
      Juetice and recommended    to the United    States Attorney
      General that they be released, paroled,    or interned. The
      opinion concluded   that memberehip  on the board did not
      involve *holding . . . any office of profit or trust under
      the United States.n m      Tax. Conet. art. XVI, 512. Nor
/--
      did it constitute a epoeition of honor, trust or profitm
      under article XVI, uction 33, of the Texas Constitution.
      The term   lposition* implied, %mong others, w,
      compeneation, m.e          Attorney general Opinion O-4313
      (emphasis added).    The absence or relative      absence  of
      these essentials meant   that membership   on the board did
      not conetitute a *position* within article XVI, section
      33.

           Special commissioners are appointed by the court for
      one case.   They do not serve for a fixed term.      Their
      service lacks the elements of permanency and continuity
      which are essential to holding an nofficem or Wposition of
      profit." A legislator*s service as a special commissioner
      in a condemnation suit is not prohibited by article XVI,
      section 40, of the Texas Constitution.

           Article III, eection       18, of     the Texas   Constitution
      prwide8:

                    Sec. 18.   No Senator  or Repruentative
                 shall, during the term for    which he vae
 -
                 elected, be eligible to (1) any civil office
                 or profit under this State which shall have
                 been created, or the emoluments of which may
                 have been increased, during such term. . .
 P               nor shall any member of the Legislature   be



                                       p. 4101
Honorable David H. Cain - Page 6       (JM-847)




        interuted,  either directly or indirectly,
        inany   wntraot   vitb the State, or any
        county theruf, authorieed by any lav passed
        during the term for vhich he va e lleoted.

We have already determined   that a special      commissioner
does not hold an office.      See  aLpp   Attorney    General
Opinion WW-415 (1981) (%ivil office* is synonymous with
spublic office*).  Thus, the first prwieion       of article
III, section 18, of the Texas Constitution, quoted above,
does not probibit a legislator from serving as a special
commimsioner in a condemnation proceeding.

      The final prwieion     of article    III, section    18,
quoted abowe, prohibits    any pereon   from entering into a
contract with the state or county authorized     by a statute
parFd.y    ;nlegielature of vhich that person vae a member.
                                            , 708 S.W.Zd 493
(Tex. App. - Houston [let Diet.] 1986, vrit ref'd n.r.e.),
held that a legislator vho represented           an indigent
defendant under a court appointment        did not have an
wintereat" in a econtractw vithin article III, section 18,
of the Texas Constitution, even though compensation        was
payable directly to him by the state. The court said that        -j
the kind of interest which article      III, section 18, vas
intended to prohibit was evemplified       by the negotiated
contract  at issue in w        v. w           Counfy   57 S.W.
338 (Tex. Civ. App. 1900, no writ).        708 S.W.2h at 496
(diecueeing w).          In &,jJ&&    a legislator contracted
vith a county to publish      a delinquent tax list.       The
statute providing    for publication   of the list had been
adopted   and amended while Lillard was a legislator.
Article III, section 18, of the constitution         therefore
made the contract invalid. 57 S.W. at 340.

       The judicial appointment   in
m        vae unlike the agreement in m.
                                      ---be%%         . .
496.    The N          court stated es follovs:

            An appointment    is unlike  a contract  in
         many regards.    For   example, there   is no
         mutuality of obligation.     The relationehip
         created by the order is unilatual    in nature
         becauee   it due     not crute    a right to
         continued   employment   as counsel,   or   to




                             p. 4102
     Honorable   David H. Calm - Page 7   UlG847)


,-


            compuuation  for work done out-of-court,   or
            for investigative Sue in excue   of $500.1
 P
           A lpeoial c~ieeionu      is appointed    to serve for a
     particular cau,     and has no entitlement       to continued
     eervice in that capacity. His compensation       is determined
     zozr wurt after he has completed the work of a commis-
               Becauee an appointment     as special commissioner
     is similar   in important reepeote to         the appointment
     as attorney for    an indigent defendant,     the decision   in
                                   controls the present case. A
     epecial commissioner    does not have a contract vith the
     state or county merely becauee he may receive reasonable
     compensation    taxed as court costs against the State
     Department of Highvaye and Public Traneportation.      &S 708
     S.W.2d  at 496.   A legielator*e appointment    as couneel was
     not an interest in a contract as contemplated       by article
     III, section 18, of the wnetitution.      IQL

           We conclude that neither article III, section 18, nor
     article XVI, section 40, of the         Texas Constitution
     prohibite a legislator from receiving compensation     from
     the State Department of Highways and Public Transportation
     for serving as a special commiseioner in a condemnation
     case.

          We point out that uction 8 of article            6252-9b,
     V.T.C.S., inoludu the following prwieions:

               SW.   8.  (a) No state officer or state
            employee should accept or solicit any gift,
            favor , or service that might reasonably tend
            to influence him in the discharge     of his
            official duties or that he knows or should
            knov is being offered  him vith the intent to
            influence his official conduct.



          1. Articles 26.05 and 26.055 of the Code of Criminal
     Procedure, which provide for the compensation of attorneys
     appointed to represent    indigent defendants    in criminal
     caeee, vere amended by the 70th Legislature.       Acts 1987,
     70th Leg.,  ch. 979, f3; oh. 1049, 552. The attorney is to
     be reimbursed   for reaeonable  expeneee for    inveetigation
     incurred with prior courtapprwal    and for reasonable and
     neoeeeary time spent out of court in the case, supported
     by any documentation the court requires.     Code Crim. Proc.
     art. 26.05.




                                p. 4103
                                                                    ,
Honorable David Ii. Cain - Page 8       W-847)




           (b) No state officer or state employee
       should accept employment or engage in any
       businese or professional   activity which he
       might reasonably   expect would require      or
       induce   him   to    disclose     confidential
       information  acquired by      reason of    his
       official position.

           (a) No state officer or state employee
       should accept other employment or compensa-
       tion which could  reasonably be expected to
       impair his independence  of judgment in the
       performance of his official duties.

Whether service as a special commissioner  in a particular
case is consistent with these standards is a question of
fact which is ultimately for   the legielature to decide.
Attorney General Opinion H-688 (1975).

                           SUMMARY
            Neither article III, section   18, nor
       article XVI, section 40, of the         Texas
       Constitution bare a legislator from serving
       as a special commiseioner    in an eminent
       domain proceeding and receiving compensation
       from the State Department   of Highways   and
       Public Transportation for that service.




                                        JIM     MATTOX
                                        Attorney General of Texas

MARY KELLER
First Assistant Attorney     General

mu wxREARY
Executive Assistant Attorney     General

JUDGEZOLLIESTEAKLEY
Special Assistant Attorney     General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Susan L. Garrison
Assistant Attorney General



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