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 

7 131850-0868 

806 Broadway, Suite 312 

Lubbock, TX. 79401 

8061747-5238 

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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 

Executive Director 

Texas State Soil and Water 

Conservation Board 

P. 0. Box 658 

Temple, Texas 76501 

Dear Mr. Spencer: 

You ask: 

Opinion No. ~~-403 

Re: Construction of constitutional dual office exemption 

for directors of SOil and 

water conservation districts 

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 the Texas Legislature at the same time? 

Soil and water conservation districts are created as governmental 

subdivisions of 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 occupying any of the offices about which 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 

General Opinion V-1445 (1952). 

Section 40 of article XVI of the Texas Constitution generally 

prohibits one person from holding at the same time more 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 officers of state soil and water conservation districts. 

p. 1367 
- . 

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

Section 40 of article XVI 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 specially provided herein. 

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 section was amended to except military offices 

from the prohibition against holding more 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 exceptions were created, but none of the others tracked 

the "military" proviso. See S.J.R. No. 29, Acts 1971, 62nd Leg., at -. 

4133. 

Article XVI, sectjon 40 now reads in pertinent part: 

No person shall hold or exercise at 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 enlisted men 

of the United States Army, 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 from voting 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 

qualified by law. 

The insertion of the new exemptions for directors of soil and 

water conservation districts so as to be coupled with and parallel to 

the exemptions for persons occupying military positions is important 

because the exemption for military persons is more far-reaching than 

other section 40 exemptions. It provides that "nothing in this 

Constitution shall be construed to prohibit" certain military officers 

or enlisted men from holding at the same time any other office or 

p. 1368 
Mr. 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 

interpretation by 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). 

Although none of the reasons recited by these courts for favoring 

military officers with such an overriding constitutional provision are 

applicable to directors of soil and water conservation districts, 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 conservation districts may 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 (candidacy for 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 section 40 internal conflict. 

In order to make the last sentence of the section harmonize with the 

construction previously given by the supreme court to the "nothing in 

this Constitution" clause, it should be read as referring to military 

office or soil and water conservation district office, 

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 legislators who accept positions in the National Guard 

vacate their legislative posts. Since the constitution requires us to 

apply to officers of soil and water conservation districts the same 

constitutional exemptions applicable to officers of the state National 

Guard, we conclude that directors of local soil and water conservation 

districts may legally serve on the State Soil and Water Conservation 

Board. We also conclude that directors of local soil and water 

districts may legally qualify and serve in the Texas Legislature, at 

the same time. 

SUMMARY 

Local soil and water conservation district 

directors may legally serve on the State Soil and 

Water Conservation Board at the same time. Such 

directors may legally qualify and serve in the 

Texas Legislature at the same time. 

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

Very truly yours, 

WHITE 

Attorney General of Texas 

JOHN W. FAINTER, JR. 

First Assistant Attorney General 

RICHARD E. GRAY III 

Executive Assistant Attorney General 

Prepared by Bruce Youngblood 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Susan L. Garrison, Chairman 

James Allison 

Jon Bible 

Rick Gilpin 

Jim Moellinger 

Bruce Youngblood 

P. 1370