### OF EXAS

April 14, 1969

Hon. John Wright, Chairman Interstate Cooperation Committee House of Representatives Capitol Station Austin, Texae

ear Mr. Wright: Opinion No. M-372
Re: House BillNo. 726 Relating to powers of the Interstate Compact Commlssloner.

Your recent letter addressed to this office requests our considerationof the constitutionalproblems raised in connectionwith House Bill No. 726.
Rouse Bill 726 proposes to amend Article 7466g,Vernon's Civil Statutes,and to repeal one section of each of the Acts ratifying and Implementingone of the four lnteretate river compacts to which Texas la a party.

If the bill were enacted and held valid a resultwould be that, on the effectivedate of the bi,ll,the person holding the office of Interatate Compact Commissioner, created under the provisions of Chapter 380, Acts of the 51st LegIslature,Regular Session, 1949 (Article7466g,Vernon's Civil Statutes),would representTexas on all commissionsor administrations createdunder Interstate river compacts to which Texas is a party. He would also exercise the powers provided under those compacta as the Texas representative. The person representing Texas under each one of the four compactswould be relieved of his duties and authority. The InterstateCompact Commissionerwould also representTexas In negotiations looking to forming a Red River Compact.
For the reason that your request does not specify any particular aspects of the bill for e,onslderatlon, we conclude that you are Interested In a full discussion thereof. Our considerationwill thus be confined to the constitutionalproblems a8 they relate to the text of each compact, the federal etatutee Involved, the Texas statutes ratifying the compacts, the text of W.B. 726 and statutes of other signatory states.

-1838-Hon. John Wrlght,page 2(~-372)

ConstitutionalProblems
We are of the opinion thatH.B. No. 726, as submitted, is unconstitutionalat least to the extent that It would provide a six year term for an office In contraventionof Article 16, Section 30, Constitutionof the State of Texas,which provides "Theduration of all offices not fixed by this Constitution shall never exceed two years.'

In reaching this conclusionwe have determined that the bill would provide for an "office" cle 16. Section 30. within the meaning of ArtlThe characteristicsof a !'oubllc office" are discussed at-length in Attorney GeneralOpInIonNo. c-528 (WS), at pages 2509 et seq., citingKimbrough v. Harnett, 93 Tex. 301, 55 S.W. 120 (1900),wherein the court quoted with approval Mechem on Public Officers as follows:

"Apublic office Is the right, authority, and duty createdand conferredby law, by which for a given period, either fixed by law or enduring at the pleasure of the creatingpower, an Individual 1s Invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of thepublic."
Your attention is also invited to OoinlonNo. C-528, at page 2512, the quotation from Barney v. Hawkins, 257 P.-41i 79 Mont, 506 (1927), 53 A.L.R. 563, as to themeaning of the term "office'.
We are of the opinion thatH.B. 726 purports to create, or continue,an "office"within the meaning of Article 16, Section 30, with a term greater than permitted by the Constitution.

A constitutionalproblem underH.B. 726 also arises in connectionwith appointmentof personnel.

Section 2 of H.B. 726 repeals the section of each statute under which the Rio Grande, Pecos, Canadian,and Sabine compactswere ratified and Implemented. Outright ,repealof these sections terminates the authority expresslyprovided in certain of these sections formaking Investigations,appolntlng engineering, legal,and clericalaid, and for incurring other expenses. This authority Is not expresslygiven to the Interstate Compact Commissionerunder H.B. 726.

- 1839 -.

Hon. John Wright, Page 3(M-372)

In view of the prohibitionsof Article 3, Section 44, of the Conetttutionof Texas against employment of any one In the name of the state unless authorizedby pre-existing law, we are of the opinion that statutoryprovlslonmust be made for suchpersonnel, as well as for related expenses. Arguably the authority Is Implied under language In Section 4 transferring funds to be expended for the purposesauthorlzed In appropriationsmade to the Individual commissioners, but we think this is not sufficient to complywith Article 3, Section 44 of our Constitution.

The problem could be met by suitablyamending Sectlon 2 of each statute to preserve this authority, or by providing the authority in H.B. 726. In either event,notice should be taken of language In the varlou8 compactswhich authorizes the Commlsslons to employ personnel,and of language In the eectionsproposed to be repealed that qualifies the power of the Texas commissloner to obligate the state for expenditures made jointlywlth other states.

The question is raised as to whetherH.B. 726 contravenes the prohibition of Article 16, Section 40, Conetltution of the State of Texas,against holding more than one civil office. We answer this question in the negative. The intent of the Legislatureand the effect of the bill IS clearly that there 1s created, or continued,only the one office of InterstateCompact Commissioner,and that the person holding that office has the additional duty of representing this state on the designated commlaalonsand admlnistratlons. This is permissibleunder Texas Turnpike Authority v, Shepperd, 154 Tex. 357, 279 S.W,2d 302 (1955),and authorlties cited therein.

In view of the foregoingdecision, a statute providing for the appointment by the governor of an Interstate Compact Commissionerand expresslyproviding that the person who holds that office is also ex-officio the Rio arande.Compact Commissioner, the Pecos River Compact Commissioner, the Canadian River Compact Commissioner,and a member of the Sabine River CompactAdministration,without additional compensation, would be more in the format of the compacts,would be consistent with theprovisionmade in some of the compacts for representativesof other states, and would bring the statute more certainly under the rule of Texas Turnpike AuthorityV. Shepperd, supra.

-1840-.

Hon. John Wright, page 4 (M-372)

In this connection, see Article XII of the Rio Grande Compact,which provides that “The State Engineer of Colorado shall be ex-officio the Rio Qrande Compact Commissioner for Colorado”,and that “TheState Engineer of New Mexico shall be ex-officiothe Rio Grande Compact Commissioner for New Mexico”. Note also thatArticle VII(c) of the Sabine Compact provides that “One of the Louisianamembers shallbe ex-officio the Director of the LouisianaDepartment of Public Works‘I. With further reference to conforming to the compacts, notice should be taken of the fact that the Sabine Compact provides in Article VII for an “Administration”consisting **Of** “members”
. Our statute should adopt the same termswhere applicable.
Text of the Compacts

Each compact createsa “commission”or an “administration”, and prescribes themanner of selectingrepresentatives from member states. Article XII of the Rio Grande Compactprovides that the Rio Grande Compact Commissioner for Texas shall be appointed by the Governor of Texas. Article V of the Pecos Compactprovides that “The Commlsslon~shallbe composed of one Commissionerrepresenting each of the states...‘I, and Article IX of the Canadian Compact provides that “The Commission shall be composedof three (3) Commissioners,one (1) from each of the signatory states...‘, In each designated or appointed in accordancewith the laws of the State.

Article VII(b) of the Sablne Compactprovides that the Administration shall consist of twomembers from each state, and Article VII(c), as amended, provides that the Texas members shall be appointed by the governor for a term of six years. We are of the opinion that the provision in Section 1 of Article 7466g, Vernon’s Civil Statutes, ae set out inH.B. 726, to the effect that the Interstate Compact Commissioner, appointed by the governor, shall represent the State of Texas

-1841-Ron. John Wright, Page 5(M-372)

on the commissions there named, is sufficient to designate or appoint a representative to each such body, and complies with the requirementsof all compacts as to themethod of appointment. We have pointed out that some of the compacts rovide for representativeswho serve lnanex-officio capat&rA problem does arise, however, because of the provlslon in the Sabine Compact for six year terms for Texas memhers, The Sabine Compact as originally adopted provided for two year terms for Texas members, as did the statute ratlfylng the Compact. Under theprovisions of Chapters 19 and 192, Acts of the 57th Legislature,R.S., 1961, the compact and the Texas atatutewere amended to provide six year terms for Texasmembers. Section 5 of Chapter 19, the emergency clause, reads as follows:

“Sec. 5. The fact that annual appolntments are made by the Qovernor of the State of Texas pursuant to the Sablne River Compact which results In uncertainty by the State of Louisiana,and the fact that It Is to the best In; terest of the people of Texas to protect the rights of its citizens to have longevity In terms of office by Texas members of the Sabine River Compact Administration In compliancewith the Constitutionof the State of Texas, creates an emergency..... .” We observe,therefore,thata Texas statute creating the office of Interstate Compact Commissionerwith’a two year term and providing that the holder of the office is ex-officio a member, or shall represent the state as a member, of the Sabine River CompactAdministrationwould still not conform to the requirements of the compact as amended. A constltutional amendment or a compact amendmentwould remedy the probJ&m..

-1842-Hon. John Wright, page 6(~-372)

Federal Statutes All interstateriver compacts must be approved by the Congress of theUnited States, and If It is foundnecessary or desirable that signatory states amend a compact, then Congressional consent will be necessary. 1962, Pub.L. 87-418 See Act of March 16, form of ArticleVIIfc I6 Stat. 34, consenting to the amended of the Sablne Compactunder which six year termswere provided for Texas members.

Texas Statutes Ratifying the Compacts
H.B. 726 would repeal entirely Section 2 of the statute ratifyingand implementingeach compact. We have suggested that provisionsproviding for employmentof personnel be preserved or incorporated In H.B. 726. See Constitutional Problems, this opinion. Text of H. B. 726
In addition to provisions earlier discussed In this opinion, the followingprovisions should be noted: 1. Section 4 of Article 7466g provides that "Funds appropriated for the biennium beginning September 1, 1969,*....

are hereby transferrad to the Interstate Compact Commissioner.....

. The effectivedate of H.B. 726 Is February 1, 1970, hence no provision for transfer of funds may be effectiveuntil that date. If this Is not the Intended result this provision should be clarlfled. 2. On line 13,page 3, of the bill, the words "as amended" should be inserted following '1951'. Statutes of Other Signatory States
We find nothing In the statutes of other signatory states,other than the provision In ArticleVII(c) of the Sabine Compact for six year terms for Texasmembers, that would preclude the adoption of the arrangement contemplated under H.B. 726.

-1843-Ron. John Wright,page 7(M-372)

SUMMARY
H.B. 726 as submitted is unconstitutionalto the the extent that It would provide a six year term for an office in contraventionof Article 16, Section 30, Constitutionof the State of Texas. There is also under the bill a constitutional problem in connectionwith the appointmentof employeesnot authorized by pre-existing law. Article 3, Sectlon 44, Constitutionof the State of Texas. The Sablne compact provides that Texasmembers shall have a term of six years. Therefore, a Texas statuteproviding for representationby an official appointed for a two year term would not conform to the requirements of the compact. Any amendment to a compact requires the approval of the Congress of theUnited States.
H.B. 726 Is not effective to transfer funds until February 1, 1970. /7

General of Texas Prepared by James S. Swearlngen AssistantAttorney General APPROVED: OPINION COMMITTEE
Kerns Taylor, Chairman George Kelton,Vice-Chairman Roland Allen Pat Bailey Harold Kennedy Sally Phillips
W. V. GEPPERT Staff legal Assistant -1844-