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 Bill No. 726 

Relating to powers of 

the Interstate Compact 

Commlssloner. 

Your recent letter addressed to this office requests 

our consideration of the constitutional problems raised in 

connection with 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 Implementing one of the four lnteretate river 

compacts to which Texas la a party. 

If the bill were enacted and held valid a result would 

be that, on the effective date 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 (Article 7466g, Vernon's Civil 

Statutes), would represent Texas on all commissions or administrations created under 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 compacts would 

be relieved of his duties and authority. The Interstate Compact Commissioner would also represent Texas 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 consideration will thus be confined to the constitutional problems 

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. 

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

Constitutional Problems 

We are of the opinion that H.B. No. 726, as submitted, 

is unconstitutional at least to the extent that It would provide a six year term for an office In contravention of Article 

16, Section 30, Constitution of the State of Texas, which provides "The duration of all offices not fixed by this Constitution shall never exceed two years.' 

In reaching this conclusion we have determined that the 

bill would provide for an "office" 

cle 16. Section 30. 

within the meaning of ArtlThe characteristics of a !'oubllc office" 

are discussed at-length in Attorney General OpInIonNo. c-528 

(WS), at pages 2509 et seq., citing Kimbrough v. Harnett, 

93 Tex. 301, 55 S.W. 120 (1900), wherein the court quoted with 

approval Mechem on Public Officers as follows: 

"A public office Is the right, authority, 

and duty created and conferred by law, 

by which for a given period, either fixed 

by law or enduring at the pleasure of the 

creating power, an Individual 1s Invested 

with some portion of the sovereign functions of the government, to be exercised 

by him for the benefit of the public." 

Your attention is also invited to Ooinlon No. 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 the meaning of the 

term "office'. 

We are of the opinion that H.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 constitutional problem under H.B. 726 also arises in 

connection with appointment of personnel. 

Section 2 of H.B. 726 repeals the section of each statute under which the Rio Grande, Pecos, Canadian, and Sabine 

compacts were ratified and Implemented. Outright ,repeal of 

these sections terminates the authority expressly provided in 

certain of these sections for making Investigations, appolntlng engineering, legal, and clerical aid, and for incurring 

other expenses. This authority Is not expressly given to the 

Interstate Compact Commissioner under H.B. 726. 

- 1839 - 
. 

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

In view of the prohibitions of Article 3, Section 44, 

of the Conetttution of Texas against employment of any one 

In the name of the state unless authorized by pre-existing 

law, we are of the opinion that statutory provlslon must be 

made for such personnel, as well as for related expenses. 

Arguably the authority Is Implied under language In Section 

4 transferring funds to be expended for the purposes authorlzed In appropriations made to the Individual commissioners, 

but we think this is not sufficient to comply with Article 

3, Section 44 of our Constitution. 

The problem could be met by suitably amending 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 varlou 8 compacts which authorizes 

the Commlsslons to employ personnel, and of language In the 

eections proposed to be repealed that qualifies the power of 

the Texas commissloner to obligate the state for expenditures 

made jointly wlth other states. 

The question is raised as to whether H.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 Legislature and the effect of the bill IS 

clearly that there 1s created, or continued, only the one 

office of Interstate Compact Commissioner, and that the person holding that office has the additional duty of representing this state on the designated commlaalons and admlnistratlons. This is permissible under Texas Turnpike Authority 

v, Shepperd, 154 Tex. 357, 279 S.W,2d 302 (1955), and authorlties cited therein. 

In view of the foregoing decision, a statute providing 

for the appointment by the governor of an Interstate Compact 

Commissioner and expressly providing 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 Compact Administration , without additional compensation, 

would be more in the format of the compacts, would be consistent with the provision made in some of the compacts for representatives of other states, and would bring the statute 

more certainly under the rule of Texas Turnpike Authority V. 

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 “The State Engineer of New Mexico shall 

be ex-officio the Rio Grande Compact Commissioner for New 

Mexico”. Note also that Article VII(c) of the Sabine Compact provides that “One of the Louisiana members shall be 

ex-officio the Director of the Louisiana Department 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 terms where 

applicable. 

Text of the Compacts 

Each compact creates a “commission” or an “administration”, and prescribes the manner of selecting representatives from member states. 

Article XII of the Rio Grande Compact provides that 

the Rio Grande Compact Commissioner for Texas shall be appointed by the Governor of Texas. 

Article V of the Pecos Compact provides that “The 

Commlsslon~shall be composed of one Commissioner representing 

each of the states.. .‘I, and Article IX of the Canadian Compact provides that “The Commission shall be composed of three 

(3) Commissioners, one (1) from each of the signatory states...‘, 

In each designated or appointed in accordance with the laws 

of the State. 

Article VII(b) of the Sablne Compact provides that the 

Administration shall consist of two members 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 in H.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 requirements of all compacts as to the method of 

appointment. We have pointed out that some of the compacts 

rovide for representatives who 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 the provisions of Chapters 19 and 

192, Acts of the 57th Legislature, R.S., 1961, the compact 

and the Texas atatute were amended to provide six year terms 

for Texas members. 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 compliance with the 

Constitution of the State of Texas, 

creates an emergency. . . . . . ” 

We observe,therefore,that a Texas statute creating the 

office of Interstate Compact Commissioner with’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 Compact Administration would still not conform 

to the requirements of the compact as amended. A constltutional amendment or a compact amendment would remedy the probJ&m.. 

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

Federal Statutes 

All interstate river compact s must be approved by the 

Congress of the United States, and If It is found necessary 

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 Article VIIfc I 

6 Stat. 34, consenting to the amended 

of the Sablne Compact under which six 

year terms were provided for Texas members. 

Texas Statutes Ratifying the Compacts 

H.B. 726 would repeal entirely Section 2 of the statute ratifying and implementing each compact. We have suggested that provisions providing for employment of 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 following provisions 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 

effective date of H.B. 726 Is February 1, 1970, 

hence no provision for transfer of funds may be 

effective until 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 Article VII(c) of the 

Sabine Compact for six year terms for Texas members, 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 unconstitutional to 

the the extent that It would provide a six 

year term for an office in contravention of 

Article 16, Section 30, Constitution of the 

State of Texas. 

There is also under the bill a constitutional 

problem in connection with the appointment of 

employees not authorized by pre-existing law. 

Article 3, Sectlon 44, Constitution of the 

State of Texas. 

The Sablne compact provides that Texas members shall have a term of six years. Therefore, a Texas statute providing for representation by 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 the United States. 

H.B. 726 Is not effective to transfer funds 

until February 1, 1970. 

/7 

General of Texas 

Prepared by 

James S. Swearlngen 

Assistant Attorney 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 

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