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                               June 30, 1947

         Hon. James F. Houlihan      Opinion No. V-263
         County Auditor
         Orange County               Re:   Authority of Commis-
         Orange, Texas                     sioners' Courts to
                                           participate in the ad-
                                           ministrative affairs
                                           of Levee Improvement
                                           Districts.
         Dear Sir:
                   We refer to your letter of May 26,    1947,   in
         which you submit the following:
                   "This request is made solely for the
              purpose of asking your opinion as to wheth-
              er or not the Supervisors legally appointed
              by the Commissioners* Court of Orange Coun-
              ty, Texas, and duly qualified to serve, are
              the governing or administrative body of said
              district and charged with the supervision
              and administration of its affairs, or wheth-
              er the Commissioners' Court of Orange County,
              Texas, or any member thereof, may dictate or
              outlfne the manner that these said Supervisors
              shall carry on, supervise, or administer the
              affairs of the district, and whether said
              Commissioners' Court of Orange County, Texas,
              may compel said Supervisors of said district
              to do or cause to be done such construction,
              maintenance, or other work that in the opin-
              ion of the Supervisors would not be for the
              best interest of the district and which would
              be contrary to the program outlined for the
              district by them. Our specific questions are
              as follows:
                   "1. Does the Commissioners' Court of
              Orange County, Texas, have the authority to
              compel the Supervisors of the district to
              hire or discharge any employee of the dis-
              trict whom the Supervisors of the District
              have the legal right to hire or employ?
Hon. James F. Houlihan - Page 2   V-283


          "2. Does the Commissioners' Court of
     Orange County, Texas, have the authority to
     order and compel the Supervisors of the dis-
     trict to use the machinery, equipment, and
     employees of the district, paid for, oper-
     ated and oompensated for, out of funds re-
     ceived from the levy of taxes for district
     purposes, in doing work in or upon the roads
     and bridges of Orange County, Texas, which
     has no connection with the purposes for
     which the district was created and the taxes
     levied, assessed, and collected?

          “3.  Does the Commissioners' Court of
     Orange County, Texas, have the authority to
     order and compel the Supervisors of the dis-
     trict to Pile monthly with said Court an i-
     temized and detailed report of all receipts
     and disbursements of said district, said re-
     port to be in addition to the monthly report
     now being made to the said Commissioners1
     Court by the County Treasurer of Orange Coun-
     ty, Texas, acting as the Ex-officio Treas-
     urer of said district, which monthly report
     has been made regularly by said Treasurer
     and approved each month by said Commission-
     ers' Court?

           “4.  Does the Commissioners' Court of
     Orange County, Texas, have the authority to
     remove from office any or all of the Super-
     visors of said district for refusal to com-
     ply with the demands or orders of said Com-
     missioners' Court or any member thereof to
     do or cause to be done any of the things
     outlined in our questions outlined herein
     and numbered 1 through 41"
          Establishment of Levee Improvement (Conserva-
tion and Reclamation) Districts is authorized in Se&ion
59 of Article XVI of the Constitution of Texas. The per-
tinent parts of that seation are its sub-divisions (a)
and (b), which specify the purposes for which such dfs-
tricts may be utilized. Those sections read:
          "(a) The conservation and development ol
     all of the natural resources of this State in-
     cluding the control, storing, preservation end
Hon. James F. Houlihan - Page 3      V-283


        distribution of its storm and flood waters,
        the waters of its rivers and streams,for ir-
        rigation, power and all other useful purposes,
        the reolamation and irrigation of its aria,
        semi-arid and other lands needing irrigation,
        the reclamation and drainage of its over-flowed
        lands, and other lands needing drainage, the
        conservation and development of its forests,
        water and hydro-electric power, the navigation
        of its inland and coastal waters, and the pres-
        ervation and conservstion of all such natural
        resources of the State are each and all hereby
        declered public rights and duties; and the Leg-
        islature shall pass all such laws as may be ap-
        propriate thereto.
             v(b) There may be created within the
        State'of Texas,or the State may be divided in-
        to, such number of conservation and reclamation
        districts as may be determined to be essential
        to the accomplishment of the purposes of this
        amendment to the constitution,.which distriats
        shall be governmental agenoies and bodies pol-
        itic and corporate with such powers of govern-
        ment and with the authority to exercise such
        rights, privileges and functions concerning the
        subject matter of this amendment as may be oon-
        ferred by law."
          Chapter 6 of Title 128 of Vernon's Civil Stat-
utes constitutes the enabling act which puts Section 59
of Article XVI of the Constitution in effect and dele-
gates to Commissioners' Courts the power to create such
districts.

             Article 7972 in that Chapter reads:
             *'Theremay be created within this State
        conservation and reclamation districts to be-
        known as Levee Improvement Districts, for the
        purpose of constructing and maintaining levees
        and other improvements on, along and contigu-
        ous to rivers, creeks, and streams, for the pnr-
        pose of reclaiming lands from overflow from
        such streams, for the purpose of the control
        and distribution of the waters and streams by
        straightening and otherwise improving the same,
        and for the proper drainage and other improve-
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Hon. James F. Houlihan - Page 4   V-283


     ment of such lands, all as contemplated by Sec-
     tion 59, Article 16, of the Constitution of
     this State, for the conservation and develop-
     ment of the natural resources of this State,
     which said districts shall have and may exer-
     cise all the rights, powers and privileges
     given by this Act and in accordance with its
     limitations and provisions.~l
          Regardless of whether such districts are cre-
ated by direot Legislature Act or by Commissioners'
Courts under delegated power in accord with the provi-
sions of said Chapter 6 of Title 128, such districts
exist as separate corporate entities, as governmental
agencies, distinct and independent of the county in
which they are located, subject to legislative direc-
tion within the authority given by Section 59 of Arti-
cle XVI of the State Constitution.
          Harris County Elood Control District vs. Mann,
135 Tex., 239, 140 S.W. (2d) 1098, is a proceeding in
the Supreme Court to compel the approval of bonds of the
district. That district was created by direct Act of
the Legislature. The Commissioners' Court was named in
the Act as the administrative agency of the district.
The syllabi in 135 Tex. 239-240 correctly states the
holding of that case, as follows:
          "A oonservation reclamation district, duly
     created by the Legislature, is a governmental
     agency, separate and distinct within itself, and
     the mere coincident that its boundaries are i-
     dentical with those of the county in which it
     is located does not make it dependent or in any-
     wise connected with the corporate or political
     entity of the county."
          "A conservation or reclamation district
     created by the Legislature being a govern-
     mental agency, body politic, and corporate,
     separate, distinct and independent from the
     county in which it is located, no part of the
     funds of said county ten be pledged or used to
     pay the bonds of the conservation district,”
          "A flood control district, created under
     Article 16, Section 59, of the State Constitu-
     tion, authorizing the creation of conservation
Hon. James F. Houlihan - Page 5     v-283



    and reclamation districts, is a State govern-
    mental agency, independent within itself, and
    cannot be classed as a local and special law
    within the meaning of Article 3, Section 56,
    of the Constitution."
           Ellis County Levee Improvement District was
created by the Commissioners1 Court of EllisCounty un-
der authority delegated by the Legislature to such
courts. The Supreme Court sustained such delegation
of legislative ower in Rutledge vs. State, 117 Tex.
342, 7 S.W. (2dP 1071, 292 S.W. 164. In that regard
the Court said:
          " . . . There runs, therefore, through the
     statutes and the constitutional provision, the
     general purpose to provide'some method of re-
     claiming lands from overflows'or overflow con-
     ditions. Since the creation of districts to
     accomplish this purpose is thus authorized by
     the State Oonstitution, it follows that the'
     districts to be created must be brought into
     existence oonsistent with the law of due pro-
     cess as declared in both the State and Federal
     Constitutions. Since the districts authorized
     are local imnrovement districts. it follows
     that they must be created either by direct act
     of the Legislature, by which that body selects
     the territory and spreads the burdenof taxa-
     tion. or~by some legislative agency, such as
     the Commissioners Court: and if by the latter
     method, then only after notice, hearing, and
     determination of benefits and therefore of
     boundaries." (Emphasis added)
          It is elementary that the authority and power
of Commissioners' Courts is limited to such as is given
by the Constitution or lawfully delegated to such courts
by the Legislature. Orange County Conservation and Re-
clamation District having been created by the Commission-
ers' Court of Orange County by authority of such dele-
gated power contained in Chapter 6 of Title 128 of Ver-
non's Civil Statutes, its authority concerning that dis-
trict is confined to the power delegated to such Courts
as contained in that law. Article 7998 of said Statutes
authorized Commissionerst Courts to appoint District Su-
pervisors of such districts, who shall subscribe to an
oath of office and enter into bond payable to such dis-
Hon. James F. Houlihan - Page 6      v-283



tTiCt. Their terms of office are fixed at two years,
and until their SUCCeSSOTS are appointed and qualified,
"unless sooner removed by a majority vote of the court
of jurisdiction.n Upon the qualification of such Dis-
trict Supervisors, they become the sole administrative
agency of such districts and all of the administrative
authority of the CommissioneTs',Court in that regard
comes to an end, subject only to its power to remove
such Supervisors. Chapter 6, Title 128, V. C. S.
          Article 7989 of Vernon's Civil,Statute pro-
vides that the District Supervisors "shall elect a sec-
retary . . . and an engineer and such other employees
OT assistants as may from time to time be found neces-
sary to the necessary completion of the work and busi-
ness of the district."
          The District Supervisors of Orange County
Conservation and Reclamation District'are to be offi-
cers qualified as provided by law; they hold office
for two years, and until their successors are appointed
and qualified; "unless sooner removed by a majority
vote of the court of jurisdiction." (Emphasis added).
The auoted underscored language merely means that such
District Supervisors may bg &moved for just and lawful
cause, and not as an arbitrary act, as Would be the
case when such removal is based on refusal of such Su-
pervisors to do unlawful things demanded of them.
            In Ridgeway vs. Oity of FOTt Worth, 243 S.W.
740,   (Error dismissed), the court said:
            "The ordinance referred to cannot, we
       think, be applied in the case of a removal
       of the corporation counsel, under section 30,
       Chapter 11, of the charter. The expression
       in the charter provision just referred to
       that the commissioners by majority vote for
       the causesspecified may remove the corpor-
       ation counsel "at their-discretion" should
       not be given the effect of emoowerina the com-
       mission&s, even for the causes speczfied, of
       removing the corporation counsel at their un-
       controlled will, as may be done under the or-
       dinance in case of appointees other than cor-
       poration counsel. The term "discretion" as
       used means something more than this. It must
       mean a legal discretion exercised in good
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         Hon. James F. Houlihan - Page 7      V-283


              faith, and not an arbitrary abuse of discretion.
              See 18 R . C . L ., . 26, ~39.
                    The uses to which the property and funds of
         such districts may be applied are specified in Section
         59 of Article XVI of the Constitution, and Article
         7972 of Vernon's Civil Statutes, which are copied in
         this opinion. ,It is also provided in Article 8013 that
         money derived from taxation for such district purposes
         "shall be used for the maintenance, upkeep, repairs
         ,and additions to the levees and other improvements in
         the district and for no other purposes except as herein
         otherwise provided."
                       There is no law which authorizes the Commis-
         sioners' Court of Orange County to require Conservation
         and Reclamation District Supervisors to file itemized,
         detailed monthly reports with the Commissioners' Court,
         of receipts and disbursements of funds of the district.
         The County Treasurer of the County is made treasurer of
         such dfStTiCt     and custodian of its funds. (Article
         8019). That officer is required to make reports to the
         Commissioners' Court. Art. 8020, V. C. S.
                   Me are of the opinion that the Commissioners1
         Court of Orange County is not authorized to compel the
         District Supervisors of Orange County Conservation and
         Reclamation District to hire or discharge employees of
         said district; or require the use of funds or property
         of said district upon the roads and bridges in Orange
         County; or require the District Supervisors of said
         district to make monthly reports of receipt and dis-
         bursements of funds of said district; or remove the
         District Supervisors of said district except for some
         lawful cause.


                   The Commissioners' Court of Orange County
              is not authorized to compel the District Super-
              visors of Orange County Conservation and Re-
              clamation District to hire or discharge employ-
              ees of such district; or use machinery, equip-
              ment, and employees of the district upon the
              roads and bridges of Orange County which have
              no connection with the purposes of such dis-
              trict; or compel such Supervisors to file mon-
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Hon. James F. Houlihan - Page 8       V-283


     thly reports to such Court; or remove any such
     Supervisor from office ekcept for just and law-
     ful cause.
                              Yours very truly,
                           ATTORNEY GENERAL OF TEXAS


                           By /s/ 'A,T, Williams
                                  W, T, Williams
                                  Assistant


                           APPROVED

                           2LdJ
                           ATTORNEY GENERAL

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