                       Ausmnr          na.   TEXAS



                                 May 12, 1948

Hon. C. H. Cavness                    Opinion No, V-569
State Auditor
Austin, Texas                         Re: Eligibility  of eaployees
                                          of various conservation
                                          and +eclamatlon districts
                                          to be members of the Bm-
                                          ployees Retirement Sjs-
                                          ten of Texas.
Dear Hr. Cavness:
            Your request        for    an opinion    on the above sub-
ject   is as follows:
              'We shall greatly appreciate    your 0 ln-
       ion as to whether the employees of each Psepar-
       ately) of the following   are eligible    f6r mom-
       bersbip in,the Bmplojees Retirement System of
       Texas:
            Bexar County Metropolitan    Uater Dls-
                  trlct
            Brazoti River Conservation and Recla-
                  mation District
            Central Colorado Riier Authority
            Coma1 County WaterRecreational      Dis-
                  trict Ho. 1
            Colorado'County   Flood Control Ms-
                  trlct
            Dallas County Flood Control District
            Dallas County Park Cities Water Con-~
                  trol and Improvement   District    Ho.2
            Fayette County Flood Control District
            ffuadalupe-Blanc0 River Authority
            Guadalupe River Authority
            Gulf Water Supply District
            Harris County Flood Control District
            Jackson County Flood Control District
            Lavaca County Flood ControL District
            Lower Colorado River Authority
            Lover Conch0 River Water and So11
                  Conservation Authority
            Lower Rio Grande Flood Control Dls-
Han, C. H, Cavness,       page 2   (V-569)




               Leon River Flood Control District
               Lower Heches Valley Authority
               Nueces River Conservation and Re-
                     clamation Dlatrict
               Panhandle Water Conservation Anth-
                     ority
               Pease River Flood Control District
               Sabine-I’ieches Conservation District
               San Jacinto River Consemotion        and
                     Reclaution.Distrlot
               San Antonio River Canal a& Conser-
                     vancy Distrf ct
               Sulpllnzi Rlvep Conservation and Re-
                     clamation Dlstriot
               Upper Colorado River Authority
               Upper kadalupe       River Authorltj
               Upper Red River Flood Control and
                     IrrigatLon District
               Vslleg Conservation and Reclamation
                     District
               Webb County Conservatkon and Recla-
                     mation District,
            Artiole XVI, Section 59, Subdlvlsloh~         (a) and
(b),   Cormstltution of Texas, provide as follows”.
             “Set, 59.   (a) The oonservation and
       development of all of the natural resotirces
       of this State, Including the omtrol,       stor-
       igg, preservation    and dlstributlon   of its
       storm and flood vaters,     the waters~ of Its
       rivers and atream,     fer irri&atlon,   power
       and all other useful purposes, the reclau-
       tion and Irrigation    of Its arid, seri-arid
       and other lands needing irrigatien,      the Fe-
       clamatlon arid drainage of its over-Slowed
       lands, and other lands needing drainage, the
       conservation   and development of Its forests,
       vater sad hydro-electric     power, the navlga-
       tlon of Its Inland and coastal waters, and
       the presemation     and conservation   of all such
       natural resoumes of the State are each and
       all hereby declared public right8 and’duties;
       and the Legislature    shall paas all such laws
       as mey be appropriate     thereto,
               ‘(b)   There may be oreated within the
       State     of Texas, er the State may be divided
Hon. C. H. Cavness,      page 3    (V-569)



      Into, such number of conservation        aud reola-
      matlon districts    as may be determined to be
      essential   to the accomplishment of the pur-
      poses of thfs amendment to the constitution,
      which districts    shall be governmental agen-
      cies and bodies politic      and corporate with
      such powers of government and with the auth-
      ority to exercise     such rights,   privileges
      and functions    concerning the subject matter
      of this amendment as may be conferred by law.’
            Article   8194, V. C, S.,        reads as follows%
           “Conservation and reclamation districts
      may be created and organized in any manner
      that water improvement, drainage,    or levee
      Improvement districts  are authorized by the
      laws of this State to be created,   and <or
      the several purposes therein provided,
              The Vernon Law Book Compa has assembled In
the last part of Chapter 8, Title 12         “i; , Vernon’s Anuotat-
ed Civil Statutes        and folloving    &ticle     8$37f, under a
heading entitled       ‘Water Supply and Control          the Acts of
the Legislature      creating the above listed        &nservation
and reclamation districts,          Authority for all of then
;:4~     from Article    XVI, Section 59, Constitution        of
        , and the various Acts creating them borrow certain
l.g.gge      from this constitutional      provision    by reciting
         . 0 a such district      shall be and is hereby declare
ed to be a ggvernmental agency and body politic              and cor-
porate o . 0        As the conservation      and reolanation     dls-
tricts     under scrutiny In this opinion are all~authorized
by the same constitutional         authority and au exanination
of each of the separate Acts creating them discloses                a
similarity      in language describing      their legal entity and
general powers, we shall consider all thirty-one              districts
collectively.
             ‘Drainage districts      created under the
      provisions    of Title 128, ch. 7, Art. 8097,
      V, A. C. B., enacted” under authority         of Art.
      XVI, Sec. 59(a), Constitution          of Texas, are
      political    subdivisions    of the State of the
      same nature and stand upon exactly          the same
      footing as counties or precincts,          or any of
      the other political       subdivisions    of the State.”
      Jones v. Jefferson      County Drainage District,
      139 S,W.(2d) 861, citing numerous cases for
Hon. C. H. Cavness,    page 4   (V-569)


     the above statement.
             “Irrigation   districts,     navigation
     districts,      levee and improvement dis-
     tricts,     and like political      subdivisions
     created under Sec. 59(a), Art, XVI, Con-
     stitution      of Texas, and statutes enact-
     ed thereunder carrying out the purposes
     of such constitutional         provisions,    are
     not classed with municipal corporations,
     but are held fo be political           subdivisions
     of the State performing governmental func-
     tions, and standing upon the same footing
     as counties and other pol$tical            subdlvl-
     sions established       by law.      Willacg Coun-
     ty Water Control and Improvement P)istrict
     Roe 1. vI Abendroth, 177 3,W.(2d) 936, 937,
     citing numerous cases.
          Thr Au&is Court of Civil Appeals in Lower
Colorado River Authorit    v. Chemical Bank and Trust
Company, 185 SsR,(2d) $4,    laser affirmed by the Su-
preme Court, derrribed,the   LoleerColorado River Author-
ity fn these tsrplst
           "while designated and classiitedas a
     governmental agency and body politic        and
     corporate,  the Authority’s    functions    and
     activities  partake in large measure, the
     nature and characteristics       within legIs*
     lative restrictions,     of a large Industrial
     enterprise  rather than of a strictly       gova
     ernmental function.      It has no power to
     levy taxes, enact laws nor ordinances,        a8
     a city has: and its efficient      functioning
     depends in large measure on the sound judgm
     ment and good business management of Its
     Board of Directors.      They have large con-
     trol over the operation of its properties,
     and the Income to be derived therefrom,
     which constitute     the only sopce    of revenue
     to meet its obligations.      D.
             “Department” and “employee” as used In the En-
ployees Retirement Act are defined In Section 1 thereof
as f ollovst
           “B.  “Department’ shall mean any
     department, commission, institution  or
Hon. C. H. Cavness, page 5        (V-569)


      agency of the State     Government.
            “C.  ‘Employee t &all mean any re-
      gularly appointed officer   or employee in
      a department of the State who Is employ-
      ed on a basis or In a position    normal y
      requiring  not less than nine hundred t 900)
      hours per year, but shall not include mem-
      bers of the State Legislature   or any in-
      cumbent of an office   normally filled  by
      vote of the people; nor persons on piece-
      work basis; nor operators of equipment or
      drivers of teams whose wages are lnclud-
      ed in rental rate paid the owners of said
      equipment or team; nor any person who is
      covered by the Teacher Retirement System
      of the State of Texas or any retirement
      system supported with State funds other
      than the Texas Employees Retirement Sys-
      tem. v o!al@lasls ours)
             !i’he Lower Colorado River Authority has beer
held to be an agency of the State.           L,C,R.A, vs M&raw,
83 S.W.(2d) 629 (19 5). L.C R.A. v. Chemical Bank and
TPuat co., 190 S.W. 72dj 48 11945).          And the employees
of that body politic       havebeen held State employee8 for
certain purposes.        Hovever, notwithstanding      the broad
deflnltionfl     lxi the &gloyeeg    Retireme@ System Act of
the words department         and employee,      we believe     that
construing the Act as a whole, this and similar agencies
and their employees were not intended to be covered by
the Retirement Act for the reasona that the 50th Legis-
lature contemplated only those ‘employeea of the State”
whose duties relate to state-wide activities             vith no
intervening      corporate entityor     body between the State
and the employee,        In the case of conservation        and re-
clamation districts       the district    is the employer much
the same as counties are the employers of its employees
and have control of their duties.           The district     con-
trols the vorklng hours of its employees and la respon-
sible for the compensation dub its employees.
             The following   quotation taken from Dlllman v.
State, 125 P, 367, 378, Is appropriate          in dravlng the
distinction    between strictly     State officers   and officers
of political    subdivisions    created,by   the State, and is
in line with the distinction        we draw here between State
employees vlthin the meaning of the Retirement Act and
employees of the conservation        and reclamation districts
Hon. C. H. Cavness,    page 6   (V-569)


named in your request?
           'In general,   It may be said that a
      State officer     Is one whose duties and
      powers are coextensivewith the state,
     while a county offloer        is one whose dut-
      ies and powers are coextensive        with the
      county * State officers        are those whose
      duties concern the state at large, or
      the general public,      although exercised
      within definite     limits,    and to whom are
      delegated the exerolae of a portion of
      the sovereign     power of the state.      They
      are In a general sense those whose duties
      and powers are coextensive        with the state,
      or are not llmlted to any political         aub-
      division     of the state, and are thus dls-
      tlngulshed fram municipal officers         strict-
      ly, whose rUnCtiOn8      relate exclusively      to
      the particular     municlpalitg,    and from
      county, city, town, and school district
      officers.n
              In former opinion No, O-6928 this offloe      fol+
lowed the holding of the court In Uallaoy County water
Control and Improvement District         EJoa1 v. Abendroth, SUN
pra, and L, C. R. A, v, Chemical Dank and Trust Corpsny,
supra, by declaring      that the Lower Colorado River Author-
ity employees were employees of a state agency ana poll*
tics1 subdivisionof the State and were within a statue
tory exception to the Texas .Dnemployment Compensation
Act.    This exception excluded "service        performed in the
employ of this State, or any political          subdivision there-
of, or any lnstrumentallty        of this State or its polltl-
cal subdlvlslons,U
            In discussing    the effect of a member of the
Legislature   accepting employment with a River Authority
tNs ofrlce    In former opinion 180, O--6578 treated River
Authority employment as employment by the State within
the prohibition    of Sec. 33) Art, XVI, Constitution   of
Texas, denying payment of compensation from the State
Treasury to a person "who holds at the same time any
other office    or posfttlon of honor, trust oP profit,  un-
der this State. 0 D
           In former Opinion 180. V-462 this ofrloe was of
the opinion that a director    of the Lower Iieches Valley
Authority was a civil  officer   of this State and can
serve at the same time as a director     of Texas A, k M,
Ron. C. H. Cevness,    page 7   (V-569)


College although he must do so without     oompensatlon   from
the State for either office,
           We adhere to these former opinions and point
them out for the sake of avoiding any confusion with the
reasoning and conclusion  of this opinion,    We distinguish
between the definitions  of "state  employee"  as used in
these opinions and those who are within the meaning of
the Employees Retirement Act.
            We note here that from reading Lower Colorado
River Authority v0 Chemical Bank and Trust Co., supra,
the L. C, R, A, apparently has its own retirement sys-
tem. In any event, the employees of this particular
district   would be precluded from membership in the sgs-
tern afforded by H. B, 168, by reason of Section l.c.,
of Ii, B. 168 which defines 'employee".
          We are, therefore,  of the opinion that the
employees of the conservation  ana reclamation districts
named in your request are not eligible   POP membership
in the Employees Retirement System of Texas,


             The employees of the conservation
       and reclamation dlstrlots    created by Acts
       of the Legislature  codified   under Chapter
       8, Title 128, V, C, S,, are not eligible
       for membership in the Employees Retlre-
       ment System of Texas under the provisions
       of the present Act, Art. 6228a, V, CO 5,
                                      Yours very truly,
APPROVRD:


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