Untitled Texas Attorney General Opinion

Ausmnr na. TEXAS
May 12, 1948
Hon. C. H. Cavness Opinion No, V-569
State Auditor
Austin, Texas Re: Eligibility of eaployees
of various conservation
and +eclamatlon districts
to be members of the Bm-
ployees Retirement Sjs-
ten of Texas.
Dear Hr. Cavness:
Your request for an opinion on the above sub-
ject is as follows:
'We shall greatly appreciate your 0 ln-
ion as to whether the employees of each Psepar-
ately) of the following are eligible f6r mom-
bersbip in,the Bmplojees Retirement System of
Texas:
Bexar County Metropolitan Uater Dls-
trlct
Brazoti River Conservation and Recla-
mation District
Central Colorado Riier Authority
Coma1 County WaterRecreational Dis-
trict Ho. 1
Colorado'County Flood Control Ms-
trlct
Dallas County Flood Control District
Dallas County Park Cities Water Con-~
trol and Improvement District Ho.2
Fayette County Flood Control District
ffuadalupe-Blanc0 River Authority
Guadalupe River Authority
Gulf Water Supply District
Harris County Flood Control District
Jackson County Flood Control District
Lavaca County Flood ControL District
Lower Colorado River Authority
Lover Conch0 River Water and So11
Conservation Authority
Lower Rio Grande Flood Control Dls-
Han, C. H, Cavness, page 2 (V-569)
Leon River Flood Control District
Lower Heches Valley Authority
Nueces River Conservation and Re-
clamation Dlatrict
Panhandle Water Conservation Anth-
ority
Pease River Flood Control District
Sabine-I’ieches Conservation District
San Jacinto River Consemotion and
Reclaution.Distrlot
San Antonio River Canal a& Conser-
vancy Distrf ct
Sulpllnzi Rlvep Conservation and Re-
clamation Dlstriot
Upper Colorado River Authority
Upper kadalupe River Authorltj
Upper Red River Flood Control and
IrrigatLon District
Vslleg Conservation and Reclamation
District
Webb County Conservatkon and Recla-
mation District,
Artiole XVI, Section 59, Subdlvlsloh~ (a) and
(b), Cormstltution of Texas, provide as follows”.
“Set, 59. (a) The oonservation and
development of all of the natural resotirces
of this State, Including the omtrol, stor-
igg, preservation and dlstributlon of its
storm and flood vaters, the waters~ of Its
rivers and atream, fer irri&atlon, power
and all other useful purposes, the reclau-
tion and Irrigation of Its arid, seri-arid
and other lands needing irrigatien, the Fe-
clamatlon arid drainage of its over-Slowed
lands, and other lands needing drainage, the
conservation and development of Its forests,
vater sad hydro-electric power, the navlga-
tlon of Its Inland and coastal waters, and
the presemation and conservation of all such
natural resoumes of the State are each and
all hereby declared public right8 and’duties;
and the Legislature shall paas all such laws
as mey be appropriate thereto,
‘(b) There may be oreated within the
State of Texas, er the State may be divided
Hon. C. H. Cavness, page 3 (V-569)
Into, such number of conservation aud reola-
matlon districts as may be determined to be
essential to the accomplishment of the pur-
poses of thfs amendment to the constitution,
which districts shall be governmental agen-
cies and bodies politic and corporate with
such powers of government and with the auth-
ority to exercise such rights, privileges
and functions concerning the subject matter
of this amendment as may be conferred by law.’
Article 8194, V. C, S., reads as follows%
“Conservation and reclamation districts
may be created and organized in any manner
that water improvement, drainage, or levee
Improvement districts are authorized by the
laws of this State to be created, and 190 S.W. 72dj 48 11945). And the employees
of that body politic havebeen held State employee8 for
certain purposes. Hovever, notwithstanding the broad
deflnltionfl lxi the &gloyeeg Retireme@ System Act of
the words department and employee, we believe that
construing the Act as a whole, this and similar agencies
and their employees were not intended to be covered by
the Retirement Act for the reasona that the 50th Legis-
lature contemplated only those ‘employeea of the State”
whose duties relate to state-wide activities vith no
intervening corporate entityor body between the State
and the employee, In the case of conservation and re-
clamation districts the district is the employer much
the same as counties are the employers of its employees
and have control of their duties. The district con-
trols the vorklng hours of its employees and la respon-
sible for the compensation dub its employees.
The following quotation taken from Dlllman v.
State, 125 P, 367, 378, Is appropriate in dravlng the
distinction between strictly State officers and officers
of political subdivisions created,by the State, and is
in line with the distinction we draw here between State
employees vlthin the meaning of the Retirement Act and
employees of the conservation and reclamation districts
Hon. C. H. Cavness, page 6 (V-569)
named in your request?
'In general, It may be said that a
State officer Is one whose duties and
powers are coextensivewith the state,
while a county offloer is one whose dut-
ies and powers are coextensive with the
county * State officers are those whose
duties concern the state at large, or
the general public, although exercised
within definite limits, and to whom are
delegated the exerolae of a portion of
the sovereign power of the state. They
are In a general sense those whose duties
and powers are coextensive with the state,
or are not llmlted to any political aub-
division of the state, and are thus dls-
tlngulshed fram municipal officers strict-
ly, whose rUnCtiOn8 relate exclusively to
the particular municlpalitg, and from
county, city, town, and school district
officers.n
In former opinion No, O-6928 this offloe fol+
lowed the holding of the court In Uallaoy County water
Control and Improvement District EJoa1 v. Abendroth, SUN
pra, and L, C. R. A, v, Chemical Dank and Trust Corpsny,
supra, by declaring that the Lower Colorado River Author-
ity employees were employees of a state agency ana poll*
tics1 subdivisionof the State and were within a statue
tory exception to the Texas .Dnemployment Compensation
Act. This exception excluded "service performed in the
employ of this State, or any political subdivision there-
of, or any lnstrumentallty of this State or its polltl-
cal subdlvlslons,U
In discussing the effect of a member of the
Legislature accepting employment with a River Authority
tNs ofrlce In former opinion 180, O--6578 treated River
Authority employment as employment by the State within
the prohibition of Sec. 33) Art, XVI, Constitution of
Texas, denying payment of compensation from the State
Treasury to a person "who holds at the same time any
other office or posfttlon of honor, trust oP profit, un-
der this State. 0 D
In former Opinion 180. V-462 this ofrloe was of
the opinion that a director of the Lower Iieches Valley
Authority was a civil officer of this State and can
serve at the same time as a director of Texas A, k M,
Ron. C. H. Cevness, page 7 (V-569)
College although he must do so without oompensatlon from
the State for either office,
We adhere to these former opinions and point
them out for the sake of avoiding any confusion with the
reasoning and conclusion of this opinion, We distinguish
between the definitions of "state employee" as used in
these opinions and those who are within the meaning of
the Employees Retirement Act.
We note here that from reading Lower Colorado
River Authority v0 Chemical Bank and Trust Co., supra,
the L. C, R, A, apparently has its own retirement sys-
tem. In any event, the employees of this particular
district would be precluded from membership in the sgs-
tern afforded by H. B, 168, by reason of Section l.c.,
of Ii, B. 168 which defines 'employee".
We are, therefore, of the opinion that the
employees of the conservation ana reclamation districts
named in your request are not eligible POP membership
in the Employees Retirement System of Texas,
The employees of the conservation
and reclamation dlstrlots created by Acts
of the Legislature codified under Chapter
8, Title 128, V, C, S,, are not eligible
for membership in the Employees Retlre-
ment System of Texas under the provisions
of the present Act, Art. 6228a, V, CO 5,
Yours very truly,
APPROVRD:
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