Untitled Texas Attorney General Opinion

TEE ATTORSEY GENERAL
OF TEXAS
December 24, 1986
Honorable Roy Blake Opinion No. JM-594
Chairman
Committee on Administration Re: Whether a county judge
Texas State Senate may also serve as director of
P. 0. Box 12068 a river authority
Austin, Texas 78711
Dear Senator Blake:
You inquire about the legality of an elected official who serves
with pay also serving as director of a river authority. You state
that a director of the Angelina and Neches River Authority has been
elected to the office ~of c&nty judge in Cherokee County, to .a term
beginning January 1, 1987. You wish to know whether he may serve in
both positions.
Article XVI, section 40, of the Texas Constitutiowprovides the
answer to your question. This constitutional provision states as
follows:
Sec. 40. No person shall hold or exercise at
the same time, more than one civil office of
emolument, except that of Justice of Peace, County
Commissioner . . . [other exceptions not applic-
able] unless otherwise specially provided herein.
Tex. Const. art. XVI, section 40.
A director of the Angelina and Neches River Authority occupies a
civil office of emolument. Management and control of the affairs of
the district is vested in the board of directors, which consists of
members appointed by the governor and confirmed by the senate. Acts
1935, 44th Leg., ch. 97, 54 at 239; Acts 1945, 49th Leg., ch. 287 at
456 (formerly codified as V.T.C.S. art. 8280-108, §4). Various
governmental powers are conferred upon the directors of the river
authority, including the power to issue notes and other obligations
secured by revenues of the district. See Acts 1935, 44th Leg., ch.
97, 9511, 14-18 at 241, 242-6. The directors are to receive ten
dollars for each day of service necessary to carry out their duties,
provided that the service is authorized by vote of the board of
directors. Acts 1935, 44th Leg., ch. 97, $8 at 241. The directors of
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Eonorable Roy Blake - Page 2 (JM-594)
_-.
the river authority exercise sovereign functions of the government
largely independent of the control of others, and they receive
compensation for serving. See Aldine Independent School District v.
Standley, 280 S.W.2d 578 mx. 1955). They are therefore civil
officers of emolument within article XVI, section 40, of the Texas
Constitution. See also Attorney General Opinions JM-172 (1984)
(directors of river authorities are not included within exemption in
article XVI. section 40 for directors of soil and water conservation
districts); M-45 (1967) (director of Water Control and Improvement
District occupies civil officer of emolument); O-490 (1939) (director
of Brazes River Conservation and Reclamation District occupies civil
office of emolument).
A county judge occupies a civil office of emolument. See Tex.
Const. art. V. 515, see also Attorney General Opinion V-15417952);
Letter Advisory No. 61 (1973). He does not fall within any of the
exceptions to article XVI, section 40. County commissioners are
excepted from that provision, but even though the county judge pre-
sides over the commissioners court, he occupies a distinct-elective
office with duties that differ from those of the four county commis-
sioners. See e.g.; Tex. Const. art. V, 0415, 18; art. XVI, 565.
Article XVI, section 40, of the Texas Constitution bars one
person from servini as director of the Angelina and Neches River
Authority and at the same time serving as a county judge. In this
case, the individual's qualification for the office of county judge
operates as a resignation from his office as director of the river
authority. See State ex rel. v. Brinkerhoff, 17 S.W. 109 (Tex. 1886).
The office ofdirector thereby becomes vacant.
SUMMARY
Article XVI, section 40, of the Texas Constitu-
tion prevents one person from serving as a county
judge and as director of the Angelina and Neches
River Authority.
JIM MATTOX
Attorney General of Texas
JACK HIGHTOWRR
First Assistant Attorney General
MARY KELLER
Executive Assistant Attorney General
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Honorable Roy Blake - Page 3 (JM-594)
RICK GILPIN
Chairman, Opinion Committee
Prepared by Susan L. Garrison
Assistant Attorney General
p. 2655