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June 30, 1947

Hon. James F. Houlihan OpinionNo. V-263 CountyAuditor OrangeCounty Re: Authority of CommisOrange, Texas sioners' Courts to participate in the administrative affairs of Levee Improvement Districts. Dear Sir:

We refer to your letter of May 26, 1947, in which you submit the following:

"This request ismade solely for the purpose of asking your opinion as to whether or not the Supervisors legally appointed by the Commissioners* Court of Orange County, Texas, and duly qualified to serve, are the governing or administrativebody of said district and chargedwith the supervision and administrationof its affairs, orwhether the Commissioners'Court of OrangeCounty, 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 otherwork that in the opinion of the Supervisorswould not be for the best interest of the district andwhich 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 districtto hire or discharge any employee of the districtwhom 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 district to use the machinery, equipment,and employees of the district,paid for, operated and oompensated for, out of funds received from the levy of taxes for district purposes, in doingwork in or upon the roads and bridges of Orange County, Texas, which has no connectionwith the purposes for which the districtwas 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 district to Pile monthly with said Court an itemized and detailed report of all receipts and disbursementsof said district, said report to be in addition to the monthly report
now beingmade to the said Commissioners1 Court by the County Treasurer of Orange County, Texas,acting as the Ex-officio Treasurer of said district,which monthly report has beenmade regularly by said Treasurer and approved eachmonth by said Commissioners' Court?

“4. Does the Commissioners'Court of Orange County, Texas, have the authority to
remove from office any or all of the Supervisors of said district for refusal to comply with the demands or orders of said Commissioners' Court or anymember thereof to do or cause to be done any of the things outlined in our questions outlinedherein and numbered 1 through 41"

Establishment of Levee Improvement (Conservation andReclamation) Districts is authorized in Se&ion 59 of Article XVI of the Constitution of Texas. The pertinent parts of that seation are its sub-divisions (a) and (b),which specify the purposes for which such dfstrictsmay be utilized. Those sections read:

"(a) The conservationand development ol all of the natural resources of this State including the control, storing,preservationendHon. James F. Houlihan - Page 3 V-283

distributionof its storm and flood waters, the waters of its rivers and streams,for irrigation, power and all other usefulpurposes, 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 conservationand development of its forests, water and hydro-electricpower, the navigation of its inland and coastalwaters, and the preservation and conservstion of all such natural
resources of the State are each and all hereby declered public rights and duties; and the Legislature shall pass all such laws as may be appropriate thereto.
v(b) There may be createdwithin the State'of Texas,or the State may be divided into, such number of conservationand reclamation districts as may be determined to be essential to the accomplishmentof the purposes of this amendment to the constitution,. which distriats shall be governmentalagenoies and bodiespolitic and corporatewith such powers of government and with the authority to exercise such rights, privileges and functions concerning the subjectmatter of this amendmentas may be oonferred by law."
Chapter 6 of Title 128 of Vernon's Civil Statutes constitutes the enabling act which puts Section 59 of ArticleXVI of the Constitution in effect and delegates to Commissioners'Courts the power to create such districts.

Article 7972 in that Chapterreads:

*'There may be createdwithin this State conservationand reclamationdistricts to beknown as Levee ImprovementDistricts, for the purpose of constructing andmaintaining levees and other improvementson, along and contiguous to rivers, creeks, and streams, for the pnrpose of reclaiming lands from overflowfrom such streams,for the purpose of the control and distribution of the waters and streams by straighteningand otherwise improving the same, and for the proper drainage and other improve-I

.

Hon. James F. Houlihan - Page 4 V-283

ment of such lands, all as contemplatedby Section 59, Article 16, of the Constitution of this State, for the conservationand development of the naturalresources of this State, which said districts shall have andmay exercise all the rights,powers and privileges given by thisAct and in accordancewith its limitationsand provisions.~l
Regardless of whether such districts are created by direot LegislatureAct or by Commissioners' Courts under delegatedpower in accordwith the provisions of said Chapter 6 of Title 128, such districts exist as separate corporate entities,as governmental agencies,distinct and independentof the county in which they are located, subject to legislativedirection within the authority given by Section 59 of Article XVI of the State Constitution.

135 Tex., Harris County Elood ControlDistrict vs. Mann,

239, 140 S.W. (2d) 1098, is a proceeding in the Supreme Court to compel the approval of bonds of the district. That districtwas created by directAct of the Legislature. The Commissioners'Courtwas named in the Act as the administrativeagency of the district. The syllabi in 135 Tex. 239-240 correctly states the holding of that case, as follows:

"A oonservationreclamationdistrict, duly created by the Legislature, is a governmental agency, separateand distinctwithin itself, and the mere coincident that its boundaries are identicalwith those of the county inwhich it is located does not make it dependent or in anywise connectedwith the corporate or political entity of the county."

"A conservationor reclamation district created by the Legislaturebeing a governmental agency, bodypolitic, and corporate, separate,distinct and independentfrom 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 conservationdistrict,”

"A flood control district, created under Article 16, Section 59, of the State Constitution, authorizing the creation of conservationHon. James F. Houlihan - Page 5 v-283

and reclamationdistricts, is a State governmental agency, independentwithin 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 ImprovementDistrictwas created by the Commissioners1 Court of EllisCounty under authoritydelegated by the Legislature to such courts. The Supreme Court sustained such delegation of legislative ower inRutledge vs. State, 117 Tex. 342, 7 S.W. (2d

P 1071, 292 S.W. 164. In that regard the Court said:

"

. . .There runs, therefore,through the statutesand the constitutionalprovision,the general purpose to provide'somemethod of reclaiming lands from overflows'oroverflow conditions. Since the creation of districts to accomplish this purpose is thus authorized by the State Oonstitution, it follows that the' districts to be createdmust be brought into existence oonsistentwith the law of due process as declared in both the State and Federal Constitutions. Since the districts authorized
are local imnrovementdistricts. 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 taxation. or~by some legislative agency, such as the CommissionersCourt: and if by the latter method, then only after notice, hearing, and determination of benefits and therefore of boundaries." (Emphasisadded)

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 Conservationand Reclamation Districthaving been created by the Commissioners' Court of Orange County by authority of such delegated power contained in Chapter 6 of Title 128 of Vernon's Civil Statutes, its authority concerning that district is confined to the power delegated to suchCourts
as contained in that law. Article 7998 of said Statutes authorizedCommissionerstCourts to appoint District Supervisors of such districts,who shall subscribe to an oath of office and enter intobond 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 SUCCeSSOTSare appointedand qualified, "unless sooner removed by a majority vote of the **court** of jurisdiction.n Upon the qualificationof such District Supervisors, they become the sole administrative agency of such districts and all of the administrative authority of the CommissioneTs',Courtin that regard
comes to an end, subject only to itspower to remove such Supervisors. Chapter 6, Title 128,V. C. S.

Article 7989 ofVernon's Civil,Statuteprovides that the District Supervisors "shall elect a secretary

. . . and an engineer and such other employees
OT assistants as may from time to time be found necessary to the necessary completion of the work and business of the district."

The District Supervisors of Orange County Conservationand Reclamation District'areto be officers qualified as provided by law; they hold office for two years, and until their successorsare appointed and qualified; "unless soonerremoved by a majority

**vote** of the **court** of jurisdiction." (Emphasisadded). The auoted underscored languagemerelymeans that such District Supervisorsmay bg &moved for just and lawful cause,and not as an arbitraryact, as **Would** be the
casewhen such removal is based on refusal of such Supervisors to do unlawful things demanded of them.

InRidgeway vs. Oity of FOTt Worth, 243 S.W. 740, (Errordismissed), the court said:

"The ordinancereferred 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 charterprovision justreferred to that the commissionersbymajority vote for the causesspecified may remove the corporation counsel "at their-discretion"should not be given the effect of emoowerina the commission&s, even for the causes speczfied, of removing the corporation counsel at their uncontrolledwill, asmay be done under the ordinance in case of appointees other than corporation counsel. The term "discretion"as usedmeans somethingmore than this. Itmust mean a legal discretionexercised in good. -.

Hon. James F. Houlihan - Page 7 V-283

faith, and not an arbitraryabuse of discretion. See 18 R C

. .L., . 26, ~39.

The uses to which the property and funds of such districtsmay be applied are specified in Section 59 of ArticleXVI of the Constitution,and Article 7972 of Vernon's Civil Statutes, which are copied in this opinion. ,Itis also provided inArticle 8013 that money derived from taxation for such districtpurposes "shall be used for the maintenance, upkeep,repairs ,andadditions to the levees and other improvements in the district and for no otherpurposes except as herein otherwiseprovided."

There is no law which authorizesthe Commissioners' Court of Orange County to require Conservation andReclamation District Supervisors to file itemized, detailedmonthly reports with the Commissioners'Court, of receipts and disbursementsof funds of the district. The County Treasurer of the County ismade treasurer of such dfStTiCt and custodianof 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 disbursements 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 Supervisors of Orange County Conservation and ReclamationDistrict to hire or discharge employees of such district; or usemachinery, equipment, and employees of the district upon the roads and bridges of OrangeCounty which have
no connectionwith the purposes of such district; or compel such Supervisors to filemon-_, f -

Hon. James F. Houlihan - Page 8 V-283

thly reports to such Court; or remove any such Supervisor from office ekcept for justand lawful cause.

Yours very truly,

ATTORNEY GENERAL OFTEXAS

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

APPROVED 

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ATTORNEYGENERAL

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