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 

a four-year term of 

office for the Red River 

Compact Commissioner 

You have asked whether House Bill 1567 of the 63rd Legislature (Laws 

1973, ch. 656, p. 1782), setting the term of office of the Red River Compact 

Commissioner, is constitutiona,l. Section 2 of that 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, of the Texas Constitution provides that “[t]he duration 

of all offices not fixed by this Constitution sha.LL never exceed two years. . . .‘I 

Section 30a of Article 16 permits certain exceptions not applicable here, 

The Red River Compact Commissioner is appointed by the Governor, 

with the advice and consent of the Senate: 

“to represent this state in conferences with duly 

appointed compact commissioners of other affected 

st.ates and a United States representative appointed 

by the president, to negotiate a compact with each of 

the affected states respecting the use, control, and 

disposition of the water of the Red River and its 

tributaries.” ($45.001, Water Code, V. T. C. S., as 

amended by House Bill 1567, supra) 

p. 760 
. 

,- 

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 of this state and the 

compact commissioners of the other affected states 

and the representative of the 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 

of the 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 of Art,icle 16, $ 30, of the 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 a compact respecting the 

Use, control and disposition of the water of the Red River and its tributaries. 

As such we are of the opinion that he exercises a portion of the 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 to his term of office, ($45.002, Water 

Code, V.T.C.S., as amended by H. B. 1567, supra), and to the requirement 

that he take the constitutional oath of office ($45. 003, Water Code, V. T. C.S.). 

See, Robertson v. Ellis County, 84 S. W. 1097 (Tex. Civ.App., 1905, no writ). 

A memorandum submitted by your office suggested the possible relevancy 

of Attorney General Opinion M-814 (1971). We agree with the author of that 

memorandum that the reasoning of Attorney General Opinion M-814 is inapplicable to the present quest.ion. That opinion was based on a surrender of state 

sovereignty through ratification of a compact. Here there has been no ratification. As A,ttorney General Opinion M-814 is clearly inapplicable to the Red 

p. 761 
. ‘ 

. 

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

River Compact Commissioner, we need not consider the validity of the 

reasoning on which it is based. 

It is therefore our opinion that the Red River Compact Commissioner 

is limited by the Constitution to a term of two years. The constitutional 

invalidity of the 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 14 on page III-156 of the 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 3 of House Bill 1567 amended 5 45.004, 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 5 2 

of the bill affects neither the passage of the 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 a four-year term of office 

for the Red River Compact Commissioner is unconstitutional; however, the remainder of the statute is not 

affected by the invalidity of the 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 

p” 762 
I . 

. . 

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

APPRO‘VED: 

DAVID M. KENDALL, Chairman 

Opinion Committee 

p. 763