Untitled Texas Attorney General Opinion ( 1981 )

The Attorney General of Texas
December 3, 1981
MARK WHITE
Attorney General
Supreme Court Building
Mr. A. C. Spencer Opinion No. ``-403
P. 0. Box 12548 Executive Director
Austin. TX. 78711 Texas State Soil and Water Re: Construction of constitu-
512/475-2501 Conservation Board tional dual office exemption
Telex 910/874-1387 P. 0. Box 658 for directors of SOil and
Telecopier 5121475.0266
Temple, Texas 76501 water conservation districts
1607 Main St., Suite 1400 Dear Mr. Spencer:
Dallas. TX. 75201
214174243944
You ask:
4824 Alberta Ave., Suite 160 1. Does the constitution of the state of
El Paso, TX. 79905 Texas... and Texas law permit a director of a
9151533.3484 local soil and water conservation district to
serve on the State Soil and Water Conservation
1220 Dallas Ave., Suite 202
Board at the same time?
Houston, TX. 77002
7 131850-0868 2. Is it legal for a local soil and water
conservation district director to qualify and
serve in the Texas Legislature at the same time?
806 Broadway, Suite 312
Lubbock, TX. 79401
8061747-5238 Soil and water conservation districts are created as governmental
subdivisions of the state pursuant to article XVI, section 59 of the
Texas Constitution and article 165a-4, V.T.C.S., the State Soil
4309 N. Tenth, Suite 6
Conservation Law. They are public bodies corporate and politic.
McAllen, TX. 78501
512/682-4547
V.T.C.S. art. 165a-4, §3(1). Their directors (formerly called
"supervisors") are elected locally, except that the two initial
directors of a district are appointed by the Soil and Water
200 Main Plaza. Suite 400 Conservation Board, a state agency created by the same legislative
San Antonio, TX. 78205
act. -Id. §§5,6. Persons occupying any of the offices about which you
512/225-4191
ask, legislators, members of the Soil and Water Conservation Board,
and district directors, hold civil offices of emolument. See Tex.
An Equal Opportunity/ Const. art. III, 924; V.T.C.S. art. 165-4a, §§4D, 6(h). cf. Attorney
Affirmative Action Employw General Opinion V-1445 (1952).
Section 40 of article XVI of the Texas Constitution generally
prohibits one person from holding at the same time more than one civil
office of emolument. It has been amended several times to provide for
exceptions, however, and in 1972 it was amended to make an exception
for officers of state soil and water conservation districts.
p. 1367
- .
Mr. A. C. Spencer - Page 2 (Mw-403)
Section 40 of article XVI original~lyprovided:
No person shall hold or exercise, at the same
time, more than one civil office of emolument,
except that of justice of the peace, county
commissioner, notary public, and postmaster,
unless otherwise specially provided herein.
Tex. Const. art. XVI, 840 (1876). This straightforward and
easy-to-understand provision applied only to a, not military,
officers but the provision has been complicated in the last half
century. In 1926, the section was amended to except military offices
from the prohibition against holding more than one civil office. The
1972 amendment placed exceptions for directors and other officers of
soil and water conservation districts in the proviso applicable to
military officers. At the same time a number of other changes were
made and other exceptions were created, but none of the others tracked
the "military" proviso. -.See S.J.R. No. 29, Acts 1971, 62nd Leg., at
4133.
Article XVI, sectjon 40 now reads in pertinent part:
No person shall hold or exercise at the same time,
more than one civil office of emolument, except
that of... retired enlisted men of the United
States Army, Air Force, Navy, Marine Corps, and
Coast Guard, and the officers and directors of
soil and water conservation districts, unless
otherwise specially provided herein. Provided,
that nothing in this Constitution shall be
construed to prohibit an officer or enlisted man
of the National Guard... and retired enlisted men
of the United States Army, Air Force, Navy, Marine
Corps, and Coast Guard, and officers of the State
soil and water conservation districts, from
holding at the same time any other office or
position of honor, trust or profit, under this
State or the United States, or from voting at any
election, general, special or primary in this
State when otherwise qualified.... No member of
the Legislature of this State may hold any other
office or position of profit under this State, or
the United States, except as a notary public if
qualified by law.
The insertion of the new exemptions for directors of soil and
water conservation districts so as to be coupled with and parallel to
the exemptions for persons occupying military positions is important
because the exemption for military persons is more far-reaching than
other section 40 exemptions. It provides that "nothing in this
Constitution shall be construed to prohibit" certain military officers
or enlisted men from holding at the same time any other office or
p. 1368
Mr. A. C. Spencer - Page 3 (m-403)
position of honor, trust or profit under this state or the United
states. (Emphasis added). This language has been given a literal
interpretation by the Texas Supreme Court. See Cramer v. Sheppard,
167 S.W.2d 147 (Tex. 1942); Carpenter v. Sheppard, 145 S.W.Zd 562
(Tex. 1940).
Although none of the reasons recited by these courts for favoring
military officers with such an overriding constitutional provision are
applicable to directors of soil and water conservation districts, we
cannot ignore the extremely broad construction the supreme court has
previously given the particular language of section 40, nor the
placement of soil and water district officers with respect thereto.
We are therefore obliged to advise you that directors of soil and
water conservation districts may legally occupy at the same time any
other civil office of emolument without violating the constitution,
and that no provision contained in the constitution at the time the
1972 amendment was adopted which restricts dual officeholding is
applicable to them. See, e.g., Tex. Const. art. II, §l (separation
of powers), art. III, §§18,19 (legislators); art. XVI, $548
(incompatibility), 65 (candidacy for office).
The 1972 amendment also added the last sentence of section 40,
reading: "No member of the Legislature of this State may hold any
other office or position of profit under this State, or the United
states, except as a notary public if qualified by law." (Emphasis
added). It is possible to read the phrase, "other office or
position," in a way that avoids another section 40 internal conflict.
In order to make the last sentence of the section harmonize with the
construction previously given by the supreme court to the "nothing in
this Constitution" clause, it should be read as referring to military
office or soil and water conservation district office,
The supreme court has not retreated from the views expressed in
Cramer v. Sheppard, supra, and Carpenter v. Sheppard, supra. with
respect to the "military" exemptions, and we cannot presume it would
now rule that legislators who accept positions in the National Guard
vacate their legislative posts. Since the constitution requires us to
apply to officers of soil and water conservation districts the same
constitutional exemptions applicable to officers of the state National
Guard, we conclude that directors of local soil and water conservation
districts may legally serve on the State Soil and Water Conservation
Board. We also conclude that directors of local soil and water
districts may legally qualify and serve in the Texas Legislature, at
the same time.
SUMMARY
Local soil and water conservation district
directors may legally serve on the State Soil and
Water Conservation Board at the same time. Such
directors may legally qualify and serve in the
Texas Legislature at the same time.
p. 1369
Mr. A. C. Spencer - Page 4 (NW-403)
Very truly yours,
WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Bruce Youngblood
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
James Allison
Jon Bible
Rick Gilpin
Jim Moellinger
Bruce Youngblood
P. 1370