                                                        .~
                              ATTORNEY GENERAL OF TEXAS
                                           GREG       ABBOTT




                                            December     16,2004



The Honorable Tom Maness                              Opinion No. GA-0284
Jefferson County Criminal District Attorney
Post Office Box 2553                                 Re:     Which entity has authority to approve
Beaumont, Texas 77704                                retirement and medical benefits for the Jefferson
                                                     County Waterway and Navigation District Board
                                                     members: the Jefferson County Commissioners
                                                     Court or the Waterway and Navigation District
                                                     Board (RQ-0243-GA)

Dear Mr. Maness:

         You ask which entity has authority to approve retirement and medical benefits for the
Jefferson County Waterway and Navigation District Board members:                the Jefferson County
Commissioners Court (the “Commissioners Court”) or the Waterway and Navigation District Board
(the “District Board”).’ You specifically ask, first, whether “such benefits [must] be approved by
the      Commissioners Court”; and second, whether “the District Commissioners [are] officers
and/or employees of the District” for the purposes of statutes authorizing the provision of retirement
and medical benefits for the officers of districts such as the Jefferson County Waterway and
Navigation District (the “District”). Request Letter, supra note 1, at 1.

         The District was created in 200 1 as a conservation and reclamation district under article XVI,
section 59 of the Texas Constitution and merged with the Jefferson County Navigation Districe in
2002. See TEX. CONST. art. XVI, 5 59; Act of May 22,2001,77th              Leg., R.S., ch. 1472, $3 1, 11,
2001 Tex. Gen. Laws 5235, 5235, 5237; Request Letter, supra note 1, at 2. The special law
providing for the district’s creation states that the District is governed by a board of five “navigation
and canal commissioners appointed by the commissioners court.” Act ofMay 22,2001,77th                Leg.,
R.S., ch. 1472, 5 S(a), 2001 Tex. Gen. Laws 5235,5236. Under section 5 ofthe District’s enabling
act, the district “has all ofthe rights, powers, privileges, authority, functions, and duties provided by



         ‘SeeLetter from Honorable Tom Maness, Jefferson County Criminal District Attorney, to Honorable Greg
Abbott, Texas Attorney General, at 1 (June 23, 2004) (on tile with the Opinion Committee; also availableat
http://www.oag.state.tx.us)FereinafieterRequest Letter].

          ‘In 1987 the name of the Beaumont Navigation District was changed to the Jefferson County Navigation
District. See Act of July 18, 1987,7OtbLeg., 2d C.S., ch. 10,s 1, 1987 Tex. Gen. Laws 45,45. We have been unable
to locate special laws creating the Beaumont Navigation District.
The Honorable Tom Maness              - Page 2           (GA-0284)




the general law ofthis state, including Chapters 49,60, and 62, Water Code, applicable to navigation
districts.” Id. 5 5,200l Tex. Gen. Laws 5235,5235. The special law does not expressly address
medical and retirement benefits for District commissioners.’

         You cite provisions in each of the general laws listed-Water        Code chapters 49, 60, and
62-that you believe are relevant. See generally Request Letter, supra note 1. Chapter 49 of the
Water Code, which applies to all general law districts and which applies to the District by virtue of
section 5 of its enabling act, provides for certain benefits in section 49.069. Section 49.069(a)
authorizes a general law district board to “provide for and administerretirement,  disability, and death
compensation funds for” district employees. TEX. WATER CODE ANN. 5 49.069(a) (Vernon 2000).
Subsection(b) authorizes a board to “establish a public retirement system”under Government Code
chapter 810.4 Id. 4 49.069(b); see TEX. GOV’TCODEANN. 5 8 10.001 (Vernon Supp. 2004-05); supra
note 4 (summarizing section 810.001, Government Code). Subsection (c) authorizes a district to
“include hospitalization and medical benefits to its employees as part of the compensation paid to
the officers and employees.” TEX. WATER CODE ANN. 4 49.069(c) (Vernon 2000).

         Chapter 60 contains general provisions for navigation districts, and it, too, applies to the
District by virtue of section 5 of the District’s enabling act. Section 60.011 authorizes “[tlhe
commission of any district created under this code or by special law [to] provide for.   a retirement
      compensation fund for district officers.” Id. 5 60.01 l(a) (Vernon 2004). Section 60.014
authorizes the commission of a navigation district organized under article XVI, section 59 of the
Texas Constitution to “include hospitalization and medical benefits for officers       as part of the
compensation paid to the officers.” Zd. 5 60.014(a).

        Chapter 62 of the Water Code, also applicable to the District by virtue of section 5 of the
enabling act, provides for navigation districts as well. See id. $62.021. Section 62.070 provides for
commissioners’ compensation: “Each commissioner shall receive for his services the compensation
determined by the commissioners court of the county ofjurisdiction.”      Id. 8 62.070.

        Sections 49.069, 60.011, and 60.014 all refer to officers, and you query whether District
Board members are officers. See TEX. WATER CODE ANN. $5 49.069(c) (Vernon 2000), 60.011 (a),
60.014(a) (Vernon 2004); Request Letter, supra note 1, at 1. Because they exercise sovereign



         ‘The special laws pertaining to the predecessor district, the JeffersonCounty Navigation District, also do not
address the provision ofbenefits to commissioners. See Act ofMay 15, 1989,7lst Leg., RX, ch. 765, 1989Tex. Gen.
Laws 3364,3364-65; Act ofJuly 18, 1987,7Oth Leg., 2d C.S., ch. lo,1987 Tex. Gen. Laws 45,45.

          ‘Section 810.001 of the Government Code, to which Water Code section 49.069(b) refers, authorizes the
goveming body of a political entity, including a “water district         or other special purpose district,”to “establishand
maintainapublicretirement system for its appoint& officersandemployees.” TEx. GOV’TCODEANN. 5 810.001(a)(l),
(b) (Vernon Supp. 2004-05);see also id. 5 810.001(2)(deftig ‘public retirement system”). Tbis authority does not
apply to a political entity that is “requiredto establish or participate exclusivelyin a particular public retirement system”
or “prohibited from establishing or participating in any public retirement system or in a particular retirement system.”
Id. 5 810.001(d). But the authority to establish a public retirement systemunder Government Code section 810.001 is
cumulative of other statutory authority a political entity may have to provide a public retirement system or programs.
See id. 5 810.001(e).
The Honorable Tom Maness        - Page 3        (GA-0284)




functions largely independent ofothers’ control,seeAZdineZndep. Sch. Dist. v. Stundley, 280 S.W.2d
578,583 (Tex. 1955); see also Act ofMay 22,2001,77th Leg., R.S., ch. 1472,s 6,200l Tex. Gen.
Laws 5235, 5236 (authorizing the District to operate certain ship channels and to acquire land or
interests in land), they are officers.

         You wish to know whether section 62.070, authorizing a commissioners court to determine
district board members’ “compensation,” includes authority to determine the members’ benefits and,
if so, whether it prevails over a district board’s authority to determine benefits under section 49.069
or sections 60.011 and 60.014. See Request Letter, supra note 1, at l-2. We consider first whether
sections 60.011 and 60.014 authorize a district board to determine retirement and medical benefits.
See TEX. WATER CODE ANN. $5 60.01 l(a), .014(a) (Vernon 2004).

         We conclude that sections 60.011 and 60.014 authorize the district board to determine
retirement and medical benefits. On its face, section 60.011 authorizes a district board to “provide
for .     . a retirement, disability, and death compensation        fund for district officers.”     Id.
5 60.01 l(a). Section 60.014 plainly authorizes a district board to “include hospitalization and
medical benefits for officers      as part of the compensation paid to the officers.” Id. 5 60.014(a).
The District may exercise those powers that the legislature has delegated to it, and under the enabling
act’s plain language, the District has all of the powers Water Code chapter 60 provides, as well as
the powers chapters 49 and 62 provide. See Act of May 22,2001, 77th Leg., R.S., ch. 1472, 4 5,
2001 Tex. Gen. Laws 5235, 5235; Tex. Att’y Gen. Op. No. JC-0354 (2001) at 1 (stating that a
navigation district has “‘only those powers that are expressly delegated to it by statute or that are
clearly implied from its express powers”‘) (quoting Tri-City Fresh Water Supply Dist. No. 2 v.
Mann, 142 S.W.2d 945, 946 (Tex. 1940)); see also Harlingen Irrigation Dist. Cameron County
No. 1 v. Caprock Communications Corp., 49 S.W.3d 520,536 (Tex. App.-Corpus Christi 2001, pet.
denied) (stating that an irrigation district, created under article XVI, section 59 of the Texas
Constitution, may exercise those powers granted it by statute as well as those necessarily implied
from the express powers).

         In addition, we construe section 62.070 so that it does not conflict with sections 60.011 and
60.014. Under section 62.070, it is a commissioners court that sets the compensation for district
board members. See TEX. WATER CODE ANN. ?j62.070 (Vernon 2004). The term “compensation”
typically “includes benefits, such as insurance” and pension. Tex. Att’y Gen. Op. No. GA-0130
(2003) at 2; see Friedman v. Am. Sur. ofN,Y., 151 S.W.2d 570, 577 (Tex. 1941) (stating that the
right to receive unemployment benefits is part of employees’ “compensation”); Byrd v. City of
Dallas, 6 S.W.2d 738,740 (Tex. 1928) (stating that pensionispart of employees’ “compensation”);
Tex. Att’y Gen. Op. No. WW-73 1(1959) at 3-4 (stating that the provision ofhospital insurance may
be part of “compensation”); Tex. Att’y Gen. LO-97-100, at 2 (stating that hospitalization insurance
provided to an officer is an emolument within article XVI, section 40 of the Texas Constitution).
Because section 60.014 expressly places the decision whether officers’ compensation should include
medical benefits with a district board, while section 62.070 places the decision as to the
compensation district officers will receive with the county commissioners court, section 62.070
appears to conflict with section 60.014. But where it is possible to do so, we are to harmonize
statutes. See, e.g., TEX.GOV’TCODEANN. 55 311.025~,026 (Vernon 1998)(encouragingaconstruer
The Honorable Tom Maness         - Page 4        (GA-0284)




to interpret statutes so that they harmonize or create limited exceptions). By construing the word
“compensation” in section 62.070 to encompass only monetary compensation,          sections 60.011,
60.014, and 62.070 can be harmonized so that a county commissioners court determines the district
board members’ compensation, but the board members themselves establish benefits.

         Construing the word “compensation” in section 62.070 not to include retirement and medical
benefitscomportswiththelegislative      historyofsections60.011,60.014,       and62.070. Section62.070
and its statutory predecessor have provided since 1929 that the commissioners                court must set
navigation district commissioners’ “compensation.” See Act approved May 23,1929,41 st Leg., 1st
C.S., ch. 103,s 5,1929 Tex. Gen. Laws 246,251. The statutorypredecessors            to sections 60.011 and
60.014 both were adopted later, in 1955. See Act of Apr. 29, 1955,54th Leg., R.S., ch. 252, 5s 1,
3, 1955 Tex. Gen. Laws 701,701-02. The 1955 legislation made it clear that existing statutes did
not grant sufficient authority for providing retirement and medical benefits: “The fact that present
Statutes relating to navigation districts do not specifically authorize retirement, disability, death
compensation, hospitalization or medical benefits.        making it difficult for such navigation districts
to secure and retain competent employees.       . create[s] an emergency.       _” Id. 5 5,1955 Tex. Gen.
Laws at 702-03.

         We consequently conclude it is within the District Board’s discretion to determine whether
the District will provide District Board members retirement benefits under section 60.011 and
medical benefits under section 60.014. The Commissioners Court has no authority to make or
participate in the decision.

         You also ask whether the District Board may approve payment for a portion of the coverage
of District commissioners’ dependents.       See Request Letter, supva note 1, at 4. You draw our
attention to section 172.004 of the Local Government Code, which authorizes a “political
subdivision     directly or through a risk pool” to “provide health and accident coverage for political
subdivision officials.”    TEX. Lot. GOV’T CODE ANN. 5 172.004(a) (Vernon Supp. 2004-05).
Subsection(c) further authorizes apolitical subdivision to include the officers’ dependents underthe
coverage. See id. § 172.004(c).

         Section 172.003, which defines various terms for use in chapter 172, defines the term
“political subdivision” to include a “special district. . or other political subdivision of the state.”
Id. 5 172.003(3). A navigation district is a political subdivision of the state for purposes of section
172.004. See Smith v. Harris County-Houston Ship ChannelNav. D&t., 330 S.W.2d 672,674 (Tex.
Civ. App.-Fort Worth 1959, no writ) (and cases cited therein) (noting well-settled law that public
districts created by constitutional and statutory authority, such as navigation districts, are political
subdivisions of state). Accordingly, the District Board may approve the payment of dependent
coverage under section 172.004.
The Honorable Tom Maness      - Page 5       (GA-0284)




                                      SUMMARY

                        Section 62.070 ofthe Water Code, which authorizes a county
               commissioners court to determine “compensation”       for navigation
               district commissioners, pertains only to monetary compensation. The
               navigation district may determine whether to provide district
               commissioners with retirement and medical benefits under sections
               60.011 and 60.014 of the Water Code. The navigation district board
               also may determine whether to pay a portion of the commissioners’
               dependents’ coverage under section 172.004 ofthe Local Government
               Code.

                                             Very truly yours,




BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee
