The Honorable Joe D. Carter, Chairman Texas Water Rights Commission P. 0. Box 13207 Austin, Texas 78711
Dear Mr. Carter: Opinion No. H- 165 Re: The constitutionality

of Legislation setting afour-year term of office for the Red River Compact Commissioner You have asked whether House Bill 1567 ofthe 63rd Legislature (Laws 1973, ch. 656, p. 1782), setting the term of office ofthe Red River Compact Commissioner, is constitutiona,l. Section 2ofthat Act would amend $45.002 of the Water Code,. V..T. C.S., to read:

“The commissioner first appointed under this Act holds office until February 1, 1975 and until his successor is appointed and qualified. Thereafter, the commissioner or his successor holds office for successive terms of four years from February I, 1975. ” Article 16, §30, ofthe Texas Constitution provides that “[t]he duration ofall offices not fixed by this Constitution sha.LLnever exceed two years. . . .‘I Section 30a ofArticle 16permits certain exceptions not applicable here,

The Red River Compact Commissioner is appointed by the Governor, with the advice and consent ofthe Senate:

“to represent this state in conferences with duly appointed compact commissioners of other affected st.ates and aUnited States representative appointed by the president, to negotiate a compact with each of the affected states respecting the use, control, and disposition ofthe water ofthe Red River and its tributaries.” ($45.001, Water Code, V. T. C.S., as amended by House Bill 1567, supra)

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The Honorable Joe D. Carter, page 2(H-165)

He does not have the authority to bind the state as:

“[a]ny agreement which may be entered into between the commissioner on behalf ofthis state and the compact commissioners ofthe other affected states and the representative ofthe United States shalt be reduced to writing and submitted to the governor of this State. No such agreement has any binding effect upon this state or its legal representatives until it has been ratified by the Legislature of this state and approved by the governor, ratified by the legislatures ofthe other affected states, and consented to by the Congress of the United States. ” ($45.007, Water Code, V. T. C.S.) We believe the Red Ri,ver Compact Commissioner holds an office within the purview ofArt,icle 16, $30,ofthe Texas Constitution. See generally Attorney General Letter Advisory No. 63 (1973). Although he cannot bind the state to an agreement, he is the statutorily created exclusive conduit by which the state may negotiate acompact respecting the Use, control and disposition of the water ofthe Red River and its tributaries. As such we are ofthe opinion that he exercises aportion ofthe sovereignty of the state.

An additional reason, although not in itself determinative, for finding that the commissioner occupies an office under Article 16, $30, of the Constitution is the Legislature’s reference tohis term of office, ($45.002, Water Code, V.T.C.S., as amended by H. B. 1567, supra), and tothe requirement that he take the constitutional oath of office ($45. 003, Water Code, V. T. C.S.). See, Robertson v. Ellis County, 84S.W. 1097 (Tex. Civ.App., 1905, no writ).

A memorandum submitted by your office suggested the possible relevancy ofAttorney General Opinion M-814 (1971). We agree with the author ofthat memorandum that the reasoning ofAttorney General Opinion M-814 is inapplicable to the present quest.ion. That opinion was based on a surrender of state sovereignty through ratification ofa compact. Here there has been no ratification. As A,ttorney General Opinion M-814 is clearly inapplicable to the Red

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The Honorable Joe D. Carter, page 3(H-165)

River Compact Commissioner, we need not consider the validity ofthe reasoning on which it is based.

Itis therefore our opinion that the Red River Compact Commissioner is limited by the Constitution to aterm of two years. The constitutional invalidity ofthe provision of the bill setting the commissioner’s term of office at four yea.rs does not affect the remainder of the statute. Acts 1973, 63rd Leg., ch. 45, p. 69.

You have also asked whether House BiU 1567 may be considered as
“passed” as required by item 14on page III-156 ofthe General Appropriations Act for fiscal years 1974 and 1975 which set the commissioner’s salary at $12,000 but provided that “[s]uch salary rate is made contingent upon passage of House Bill No. 1567.” Section 3of House Bill 1567 amended 545.004, Water Code, V. T. C.S., which had establi.shed the commissioner’s salary as $6,600 per year. Under House Bill 1567 the commissioner’s salary is to be determined by the Legislature in the appropriation bill. **Our** decision regarding 52 of the bill affects neither the passage ofthe bill nor the validity of §3.Accordingly, it is our opinion that the requirement set out in the appropriations bill has been met and that the commissioner may receive a salary of $12,000 per year. SUMMARY Legislation providing afour-year term of office for the Red River Compact Commissioner is unconstitutional; however, the remainder ofthe statute is not affected by the invalidity ofthe section establishing the longer term, and the legi.slation may be considered
“passed” where other legislation is contingent upon that fact. 

# I/ Attorney General of Texas

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The Honorable Joe D. Carter, page 4 (H-165)

APPRO‘VED:

DAVID M. KENDALL, Chairman Opinion Committee

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