        .




                                The Attorney         General of Texas

JIM MATTOX                                      June 21. 1984
Attorney General



Supreme Court Building         Mr. Elof 8. Soderberg                  Opinion uo. m-172
P. 0. BOX 12548
Austin. TX. 7871% 2548
                               General Manager
5121475-2501                   Lower Colorado River Authority         Re:   Statutory disqualifica-
Telex 9101874-1367             P. 0. Box 220                          tions for Lower Colorado River
Telecopier   512/475-0286      Austin, Texas   78767                  Authority board membership

714 Jackson, Suite 700
                               Dear Mr. Soderberg:
Dallas, TX. 75202.4506
214/742-6944                        You question whether certain fact situations would prevent
                               persons from becoming members of the Board of Directors of the Lower
                               Colorado River Authority.
4824 Alberta Ave.. Suite 180
El Paso, TX. 799052793
9151533.3464                        The Lower Colorado River Authority, also known as the LCRA, wae
                               created by Acts 1934. Forty-third Legislature, 4th Called Session,
                               chapter 7. at 19, pursuant to article XVI, section 59 of the Texas
   1 Texas, Suite 700          constitution. The Lower Colorado River Authority Act, previously
. ..ustcn. TX. 77002.3111
                               codified as article 8280-107, V.T.C.S., has not been repealed, but it
713i223.5886
                               was not included as a part of the Texas Water Code enacted in 1971.
                               Consequently, the session laws must be consulted to determine its
606 Broadway, Suite 312        provisions.
Lubbock, TX. 79401-3479
SOW747.5238
                                    The Act was amended in its entirety in 1975. Acts 1975, 64th
                               Leg., ch. 74, at 179. Section 1 thereof, as amended, constitutes the
4309 N. Tenth. Suite B         LCRA a conservation and reclamation district consisting of that part
McAllen, TX. 78501.1685        of the state included within the boundaries of the counties of Blanco,
5121882.4547                   Burnet, Llano. Travis, Bastrop. Fayette, Colorado, Wharton, San Saba
                               and Matagorda. Section 4(a), as amended by Acts 1983, Sixty-eighth
200 Main Plaza. suite 400      Legislature, chapter 484. article IV, at 2838, governs the appointment
San Antonio, TX. 782052797     and eligibility of its directors. It reads in part:
51212254191
                                            Section 4. (a) The powers, rights, privileges
                                         and functions of the district shall be exercised
An Equal Opportunltyl
Alflrmative Action Employer
                                         by a board of 15 directors . . . . No person shall
                                         be eligible for such appointment if he has, during
                                         the preceding three years before his appointment
                                         been employed by an electric power and light
                                         company, telephone company, or any other utility
                                         company. (Emphasis added).

                                    You ask whether persons in the      following situations are
                               ineligible because of a conflict of interests to serve on the LCRA
                               board of directors:



                                                         p. 755
Mr. Elof H. Soderberg - Page 2 (JM-172)




             (1) public officials or employees of cities
          served by the LCRA with electric power pursuant to
          contract; and

            (2) board members or employees of wholesale
         electric power and energy cooperatives served with
         power by the LCRA pursuant to contract.

You also ask if a wholesale electric power and energy     cooperative
would be a "utility" within the section 4(a) provision.

     Ordinarily, a mere "conflict of interest" (&.         a conflict
created by the private pecuniary interest of a public officer or
employee) will not make a person legally ineligible for a public
office or position, although the existence of such a conflict may make
it illegal on occasion for a public officer or employee to exercise
his public authority. See Hager v. State ex rel. TeVault. 446 S.W.Zd
43 (Tex. Civ. App. -Beaumont      1969, writ ref'd n.r.e.); Attorney
General Letter Advisory No. 13 (1973). See also City of Edinburg vi
Ellis, 59 S.W.Zd 99 (Tex. Comm'n App. 1933, holding approved); Delta
Electric Construction Co., Inc. v. City of San Antonio, 437 S.W.Zd 602
(Tex. Civ. App. - San Antonio 1969, writ ref'd n.r.e.);     Meyers v.
Walker, 276 S.W. 305 (Tex. Civ. App. - Eastland 1925, no writ). On
the other hand, "incompatibility" prevents one person from holding two
governmental posts if the positions are incompatible. The conflict in
an "incompatibility" situation is not between an officer's private
interests and his public duty, but rather between two inconsistent
public duties. See Thomas v. Abernathy County Line Independent School
District, 290 Sx     152 (Tex. Comm'n App. 1927); Attorney General
Opinions JM-97 (1983); MW-170 (1980); Attorney General Letter Advisory
Nos. 114 (1975). 86 (1974).

     In our opinion, members of the board of directors of the
authority and persons holding offices in the governments of cities
contracting with the authority occupy incompatible posts. A person
occupying dual positions would be bound to serve faithfully two public
entities with conflicting or potentially conflicting interests. See
Attorney General Opinion MU-170 (1980). Every action taken in G
capacity that might in some way affect the interests of the other
public loyalty would necessarily require a compromise of that
officeholder's public duty, since it is the duty of a public officer
to advance the interests of the public entity he serves at all times.
Thomas v. Abernathy County Line Independent School District, supra.

     In some instances a city employee, as well as a city officer,
might be required either to slight his public duty of allegiance to
the city and obedience to his city superiors, or to subordinate the
interests of the authority he purportedly serves.       See Attorney
General Opinion H-727 (1975). It is the ever-present potential for an
impasse of public obligations that makes positions incompatible. Cf.
Attorney General Opinion H-10 (1973). Since you have not asked abz




                             D. 756
Mr. Elof H. Soderberg - Page 3    (JM-172)




specific city employments, we do not address any particular fact
situation.

     Persons who assume an office incompatible with a position or
office already held ipso facto vacate the first position or office.
See Attorney General Opinion JM-97 (1983). We are aware that in
Attorney General Letter Advisory No. 31 (1973), it was suggested that
the doctrine of incompatibility is not applicable to river authorities
because they could be considered embraced within the term "soil and
water conservation districts" as used in article XVI, sectioa 40 of
the Texas Constitution, amended in 1972. That provision specifies
that "nothing in this Constitution" shall prevent directors of soil
and water conservation districts from holding at the same time any
other office or position of honor. trust or profit, and makes the
doctrine of incompatibility inapplicable to them.         See Attorney
General Opinion MU-403 (1981). In our opinion, howzr,            river
authorities do not constitute "soil and water conservation districts"
within the meaning of article XVI, section 40.

     As   Attorney General    Opinio" Mw-403    indicates, distinct
governmental subdivisions denominated "soil and water conservation
districts" have been created by article 165a-4, V.T.C.S., the State
Soil Conservation Act now codified as chapter 201 of the Agriculture
Code of Texas.     Such districts, in existence since 1939. were
originally called "soil conservation districts." Acts 1939, 46th
Leg., ch. 3, at 7. The name was changed in 1965. Acts 1965, 59th
Leg., R.S., ch. 176. at 370. When the constitutional amendment was
proposed in 1971 referring to "soil and water conservation districts"
in article XVI, section 40, the term clearly had reference to
particular governmental units other than river authorities.       See
S.J.R. No. 29, Acts 1971, 62nd Leg., at 4133. We conclude that the
proviso of article XVI, section 40 of the Constitution is not
applicable and that officers and employees of cities contracting with
the Lower Colorado River Authority who occupy incompatible stations
cannot become directors of the Lower Colorado River Authority without
relinquishing their city positions.

     While officers and employees of most private corporations
contracting with the LCRA are not barred from becoming LCRA board
members by the common law "conflicts of interests" doctrine, officers
and employees of "utility companies" are statutorily made ineligible
for the board by section 4 of the Lower Colorado River Authority Act.
In our opinion, wholesale electric power and energy cooperatives
constitute "utility companies" within the meaning of the statute.

     Persons who had been employed within a preceding three-year
period by a utility company "of any kind or character whatsoever" were
barred from appointment as directors by section 3 of the original 1934
act creating the LCRA, and we do not think the legislatures that
amended the act in 1975 and 1981 intended any change in that respect.
Except for omitting the somewhat superfluous "of any kind or


                                 p. 757
Mr. Elof H. Soderberg - Page 4




character" phrase, the language of the prohibition remains the same.
"Company" is a      term broad enough to encompass cooperative
associations.   See Bus. & corm. Code 136.02(Z); V.T.C.S. art.
1396-50.01; Webster's New Collegiate Dictionary 226 (1979).

     We are therefore of the opinion that persons who are or have been
(within three years) officers and employees of wholesale electric
power and energy cooperatives are specifically made ineligible by the
Lower Colorado River Authority Act for appointment to the LCRA board.

                               SUMMARY

             Officers and employees of wholesale electric
          power and energy cooperatives are ineligible for
          appointment to the Board of Directors of the Lower
          Colorado River Authority. Officers and employees
          of cities with whom the LCRA contracts to provide
          power are not ineligible for board membership' but
          will automatically vacate their city posts by
          accepting an incompatible office.




                                          JIM     MATTOX
                                          Attorney General of Texas

TOM GREEN
First Assistant Attorney General

DAVID R. RICHARDS
Executive Assistant Attorney General

Prepared by Bruce Youngblood
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpin, Chairman
Susan Garrison
Jim Moellinger
Nancy Sutton
Bruce Youngblood




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