# The Attorney General of Texas

December 3, 1981 MARK WHITE Attorney General

Supreme Court Building P. 0. Box 12548 Austin. TX. 78711 512/475-2501 Telex 910/874-1387 Telecopier 5121475.0266

1607 Main St., Suite 1400 Dallas. TX. 75201 214174243944

4824 Alberta Ave., Suite 160 El Paso, TX. 79905 9151533.3484

1220 Dallas Ave., Suite 202 Houston, TX. 77002 7131850-0868

806 Broadway, Suite 312 Lubbock, TX. 79401 8061747-5238

4309 N. Tenth, Suite 6 McAllen, TX. 78501 512/682-4547

200 Main Plaza. Suite 400 San Antonio, TX. 78205 512/225-4191

An Equal Opportunity/ Affirmative Action Employw Mr. A. C. Spencer ExecutiveDirector Texas State Soil andWater ConservationBoard P. 0. Box 658 Temple,Texas 76501

DearMr. Spencer:

You ask: OpinionNo. ~~-403

Re: Constructionof constitutional dual office exemption for directors of SOil and water conservationdistricts

1. Does the constitution of the state of Texas... and Texas law permit a director of a local soil and water conservation district to serve on the State Soil and Water Conservation Board at the same time?

2. Is it legal for a local soil and water conservation district director to qualify and
serve in theTexas Legislatureat the same time?
Soil andwater conservationdistrictsare created as governmental subdivisionsof the state pursuant to article XVI, section 59 of the Texas Constitution and article 165a-4, V.T.C.S., the State Soil Conservation Law. They are public bodies corporate and politic. V.T.C.S. art. 165a-4, §3(1). Their directors (formerly called "supervisors") are elected locally, except that the two initial directors of a district are appointed by the Soil and Water Conservation Board, a state agency created by the same legislative act. Id. §§5,6. - Persons occupyingany of the offices aboutwhich you ask, legislators,members of the Soil and Water Conservation Board, and district directors, hold civil offices of emolument. See Tex. Const. art. III, 924;V.T.C.S. art. 165-4a, §§4D, 6(h). cf. Attorney GeneralOpinionV-1445 (1952).
Section 40 of article XVI of the Texas Constitution generally prohibits one person fromholding at the same timemore than one civil office of emolument. It has been amended several times to provide for exceptions,however, and in 1972 it was amended to make an exception for officersof state soil andwater conservationdistricts.

p. 1367- .
Mr. A. C. Spencer - Page 2 (Mw-403)

Section 40 of articleXVI original~ly provided:

No person shall hold or exercise, at the same time, more than one civil office of emolument, except that of justice of the peace, county commissioner, notary public, and postmaster, unless otherwise speciallyprovidedherein.

Tex. Const. art. XVI, 840 (1876). This straightforward and easy-to-understand provision applied only to a, not military, officers but the provision has been complicated in the last half century. In 1926, the sectionwas amended to exceptmilitary offices from the prohibitionagainst holdingmore than one civil office. The 1972 amendment placed exceptions for directors and other officers of soil and water conservation districts in the proviso applicable to military officers. At the same time a number of other changes were made and other exceptionswere created,but none of the others tracked the "military"proviso. See S.J.R. No. 29, Acts 1971, 62nd Leg., at -. 4133.
ArticleXVI, sectjon 40 now reads inpertinentpart:

No person shallhold or exerciseat the same time,
more than one civil office of emolument, except that of... retired enlisted men of the United States Army, Air Force, Navy, Marine Corps, and Coast Guard, and the officers and directors of soil and water conservation districts, unless otherwise specially provided herein. Provided, that nothing in this Constitution shall be construed to prohibit an officer or enlisted man of the National Guard... and retired enlistedmen of theUnited StatesArmy,Air Force,Navy,Marine Corps, and Coast Guard, and officers of the State soil and water conservation districts, from holding at the same time any other office or position of honor, trust or profit, under this State or the United States, or fromvoting at any election, general, special or primary in this State when otherwise qualified.... No member of the Legislature of this State may hold any other office or position of profit under this State, or the United States, except as a notary public if qualifiedby law.

The insertion of the new exemptions for directors of soil and water conservationdistricts so as to be coupledwith and parallel to the exemptions for persons occupyingmilitary positions is important because the exemption for military persons is more far-reaching than other section 40 exemptions. It provides that "nothing in this Constitutionshallbe construed to prohibit" certainmilitary officers
or enlisted men from holding at the same time any other office or

p. 1368Mr. A. C. Spencer - Page 3 (m-403)

position of honor, trust or profit under this state or the United states. (Emphasis added). This language has been given a literal interpretationby the Texas Supreme Court. See Cramer v. Sheppard, 167 S.W.2d 147 (Tex. 1942); Carpenter v. Sheppard, 145 S.W.Zd 562 (Tex. 1940). Althoughnone of the reasons recitedby these courts for favoring military officerswith such an overridingconstitutionalprovisionare applicable to directors of soil and water conservationdistricts,we cannot ignore the extremely broad construction the supreme court has previously given the particular language of section 40, nor the placement of soil and water district officers with respect thereto. We are therefore obliged to advise you that directors of soil and water conservationdistrictsmay legally occupy at the same time any other civil office of emolument without violating the constitution, and that no provision contained in the constitution at the time the 1972 amendment was adopted which restricts dual officeholding is applicable to them. See, e.g., Tex. Const. art. II, §l (separation of powers), art. III, §§18,19 (legislators); art. XVI, $548 (incompatibility),65 (candidacyfor office).

The 1972 amendment also added the last sentence of section 40, reading: "No member of the Legislature of this State may hold any other office or position of profit under this State, or the United states, except as a notary public if qualified by law." (Emphasis added). It is possible to read the phrase, "other office or position," in a way that avoids another section40 internalconflict. In order to make the last sentence of the sectionharmonizewith the constructionpreviouslygiven by the supreme court to the "nothing in this Constitution"clause, it shouldbe read as referring tomilitary office or soil and water conservationdistrictoffice,

The supreme court has not retreated from the views expressed in Cramer v. Sheppard, supra, and Carpenter v. Sheppard, supra. with respect to the "military" exemptions, and we cannot presume it would
now rule that legislatorswho accept positions in the National Guard vacate their legislativeposts. Since the constitutionrequiresus to apply to officers of soil and water conservationdistricts the same constitutionalexemptionsapplicableto officersof the stateNational Guard,we conclude thatdirectorsof local soil andwater conservation districtsmay legally serve on the State Soil and Water Conservation Board. We also conclude that directors of local soil and water districtsmay legally qualify and serve in the Texas Legislature, at the same time.

SUMMARY

Local soil and water conservation district directorsmay legally serve on the State Soil and Water Conservation Board at the same time. Such directors may legally qualify and serve in the Texas Legislatureat the same time.

p. 1369Mr. A. C. Spencer - Page 4 (NW-403)

Very trulyyours,

WHITE Attorney General of Texas

JOHNW. FAINTER,JR. FirstAssistantAttorneyGeneral

RICHARD E. GRAY III ExecutiveAssistantAttorneyGeneral
Preparedby BruceYoungblood AssistantAttorneyGeneral

APPROVED: OPINION COMMITTEE

SusanL. Garrison,Chairman James Allison Jon Bible Rick Gilpin Jim Moellinger BruceYoungblood

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