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. -, 

June 30, 1947 

Hon. James F. Houlihan Opinion No. V-263 

County Auditor 

Orange County 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 is made 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 administrative body of said 

district and charged with the supervision 

and administration of its affairs, or whether the Commissioners' Court of Orange County, 

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 other work that in the opinion of the Supervisors would not be for the 

best interest of the district and which 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 district to 

hire or discharge any employee of the district whom 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 doing work in or upon the roads 

and bridges of Orange County, Texas, which 

has no connection with the purposes for 

which the district was 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 disbursements of said district, said report to be in addition to the monthly report 

now being made 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 been made regularly by said Treasurer 

and approved each month 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 any member thereof to 

do or cause to be done any of the things 

outlined in our questions outlined herein 

and numbered 1 through 41" 

Establishment of Levee Improvement (Conservation and Reclamation) 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 dfstricts may be utilized. Those sections read: 

"(a) The conservation and development ol 

all of the natural resources of this State including the control, storing, preservation end 
Hon. James F. Houlihan - Page 3 V-283 

distribution of its storm and flood waters, 

the waters of its rivers and streams,for irrigation, power and all other useful purposes, 

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 

conservation and development of its forests, 

water and hydro-electric power, the navigation 

of its inland and coastal waters, 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 created within the 

State'of Texas,or the State may be divided into, such number of conservation and reclamation 

districts as may be determined to be essential 

to the accomplishment of the purposes of this 

amendment to the constitution,. which distriats 

shall be governmental agenoies and bodies politic and corporate with such powers of government and with the authority to exercise such 

rights, privileges and functions concerning the 

subject matter of this amendment as may be oonferred by law." 

Chapter 6 of Title 128 of Vernon's Civil Statutes constitutes the enabling act which puts Section 59 

of Article XVI of the Constitution in effect and delegates to Commissioners' Courts the power to create such 

districts. 

Article 7972 in that Chapter reads: 

*'There may be created within this State 

conservation and reclamation districts to beknown as Levee Improvement Districts, for the 

purpose of constructing and maintaining levees 

and other improvements on, along and contiguous to rivers, creeks, and streams, for the pnrpose of reclaiming lands from overflow from 

such streams, for the purpose of the control 

and distribution of the waters and streams by 

straightening and 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 contemplated by Section 59, Article 16, of the Constitution of 

this State, for the conservation and development of the natural resources of this State, 

which said districts shall have and may exercise all the rights, powers and privileges 

given by this Act and in accordance with its 

limitations and provisions.~l 

Regardless of whether such districts are created by direot Legislature Act or by Commissioners' 

Courts under delegated power in accord with the provisions of said Chapter 6 of Title 128, such districts 

exist as separate corporate entities, as governmental 

agencies, distinct and independent of the county in 

which they are located, subject to legislative direction within the authority given by Section 59 of Article XVI of the State Constitution. 

135 Tex., 

Harris County Elood Control District 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 district was created by direct Act of 

the Legislature. The Commissioners' Court was named in 

the Act as the administrative agency of the district. 

The syllabi in 135 Tex. 239-240 correctly states the 

holding of that case, as follows: 

"A oonservation reclamation district, duly 

created by the Legislature, is a governmental 

agency, separate and distinct within itself, and 

the mere coincident that its boundaries are identical with those of the county in which it 

is located does not make it dependent or in anywise connected with the corporate or political 

entity of the county." 

"A conservation or reclamation district 

created by the Legislature being a governmental agency, body politic, and corporate, 

separate, distinct and independent from 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 conservation district,” 

"A flood control district, created under 

Article 16, Section 59, of the State Constitution, authorizing the creation of conservation 
Hon. James F. Houlihan - Page 5 v-283 

and reclamation districts, is a State governmental agency, independent within 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 Improvement District was 

created by the Commissioners 1 Court of EllisCounty under authority delegated by the Legislature to such 

courts. The Supreme Court sustained such delegation 

of legislative ower in Rutledge 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 

statutes and the constitutional provision, the 

general purpose to provide'some method of reclaiming lands from overflows'or overflow conditions. Since the creation of districts to 

accomplish this purpose is thus authorized by 

the State Oonstitution, it follows that the' 

districts to be created must be brought into 

existence oonsistent with the law of due process as declared in both the State and Federal 

Constitutions. Since the districts authorized 

are local imnrovement districts. 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 Commissioners Court: and if by the latter 

method, then only after notice, hearing, and 

determination of benefits and therefore of 

boundaries." (Emphasis added) 

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 Conservation and Reclamation District having 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 such Courts 

as contained in that law. Article 7998 of said Statutes 

authorized Commissioners t Courts to appoint District Supervisors of such districts, who shall subscribe to an 

oath of office and enter into bond 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 SUCCeSSOTS are appointed and qualified, 

"unless sooner removed by a majority vote of the court 

of jurisdiction.n Upon the qualification of such District Supervisors, they become the sole administrative 

agency of such districts and all of the administrative 

authority of the CommissioneTs',Court in that regard 

comes to an end, subject only to its power to remove 

such Supervisors. Chapter 6, Title 128, V. C. S. 

Article 7989 of Vernon's Civil,Statute provides 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 

Conservation and Reclamation District'are to be officers qualified as provided by law; they hold office 

for two years, and until their successors are appointed 

and qualified; "unless sooner removed by a majority 

vote of the court of jurisdiction." (Emphasis added). 

The auoted underscored language merely means that such 

District Supervisors may bg &moved for just and lawful 

cause, and not as an arbitrary act, as Would be the 

case when such removal is based on refusal of such Supervisors to do unlawful things demanded of them. 

In Ridgeway vs. Oity of FOTt Worth, 243 S.W. 

740, (Error dismissed), the court said: 

"The ordinance referred 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 charter provision just referred to 

that the commissioners by majority 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 uncontrolled will, as may be done under the ordinance in case of appointees other than corporation counsel. The term "discretion" as 

used means something more than this. It must 

mean a legal discretion exercised in good 
. 

-. 

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

faith, and not an arbitrary abuse of discretion. 

See 18 R . C . L ., . 26, ~39. 

The uses to which the property and funds of 

such districts may be applied are specified in Section 

59 of Article XVI of the Constitution, and Article 

7972 of Vernon's Civil Statutes, which are copied in 

this opinion. ,It is also provided in Article 8013 that 

money derived from taxation for such district purposes 

"shall be used for the maintenance, upkeep, repairs 

,and additions to the levees and other improvements in 

the district and for no other purposes except as herein 

otherwise provided." 

There is no law which authorizes the Commissioners' Court of Orange County to require Conservation 

and Reclamation District Supervisors to file itemized, 

detailed monthly reports with the Commissioners' Court, 

of receipts and disbursements of funds of the district. 

The County Treasurer of the County is made treasurer of 

such dfStTiCt and custodian of 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 Reclamation District to hire or discharge employees of such district; or use machinery, equipment, and employees of the district upon the 

roads and bridges of Orange County which have 

no connection with the purposes of such district; or compel such Supervisors to file mon- 
_, f - 

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

thly reports to such Court; or remove any such 

Supervisor from office ekcept for just and lawful cause. 

Yours very truly, 

ATTORNEY GENERAL OF TEXAS 

By /s/ 'A, T, Williams 

W, T, Williams 

Assistant 

APPROVED 

2LdJ 

ATTORNEY GENERAL 

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