Untitled Texas Attorney General Opinion ( 1984 )


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    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    codified as article 8280-107, V.T.C.S., has not been repealed, but it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
    p. 758
    

Document Info

Docket Number: JM-172

Judges: Jim Mattox

Filed Date: 7/2/1984

Precedential Status: Precedential

Modified Date: 2/18/2017