### THE ATTORSEY GEXERAL OF TEXAS

May 

### 20,1987

HonorableRoy Blake Chairman AdministrationCommittee Texas State Senate P. 0. Box 12068 Austin,Texas 78711 OpinionNo. a-704

Re: Whether an individual may simultaneouslyserve as a director of a river authority and a member of a city planning land zoning commission

Dear SenatorBlake:

You ask whether a member of the Lufkin City Planning and Zoning Commissionmay also serve as director of the Angelina andNeches River Authority.
ArticleXVI, section 40, of theTexas Constitutionprovides:

No person shall hold or exercise at the same time,more than one civil officesof emolument, except.

. . . (Exceptionsnot applicable).
Attorney General Opinion JR-594 (1986) concluded that a director of the Angelina andNeches River Authority occupies a civil office of emolument. The opinionpointed out theprovisions which conferred an officer's powers and duties on the board members. See generally Aldine Independent School District v. Standley. 280 S.W.2d 578 (Tex. 1955). The statute establishing the river authority,also provides that:

The directors shall receive as fees of office

the sum of not to exceed Ten ($10.00)Dollars per day for each day of servicenecessary to discharge their duties, provided such service is authorized by vote of theBoard of Directors.They shall file with the Secretary a verified statement showing the actual number of days of service eachmonth on the last day of the month, or as soon thereafter
as possible and before a warrant shall be issued therefor.

Acts 1935,44th Leg., ch. 97, 98. at 241.

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We have been informed that no board member has ever been compensated for service, despite the quoted provision. We nonetheless believe that the directors of the Angelina andNeches River Authority
are civil officers of emolument if they perform any of the services which entitle them to compmsaclon. Compensation attached to en office is an incident to the title to office. Markwell v. Galveston
=, 186 S.W.2d 273 (Tex.Civ. App. - Galveston 1945,writ ref'd). The incumbent of an office is entitled to emoluments during the term forwhich he is elected or appointed. BastropCountyv. Hearn, 8 S.W. 302 (Tex. 1888). The failure to pay authorized emoluments to an officer does not change the character of the office; it is still a civil office of emolument. See general11 Attorney General Opinion JM-333 (1985) (municipaljudge holds a civil office of emolument even thoughhe refuses to accept the compensationattached to it). Whether any director or directors of the river authority perform any of the serviceswhich entitle them to emoluments is a fact question.

In our opinion, a member of the Lufkin City Planning and Zoning Commission is also a civil officer of emolument. You state that the Lufkin City Code provides that the members of the City Planning and Zoning Commission "shall receive the sum of $5.00 for each regular meeting provided, that no member shall receive pay for more than two (2) meetings in one (1) month." Willis v. Potts, 377 S.W.2d 622 (Tex. 1964) ($10 per meeting is sufficient to make an office one of emolument).

The determining factordistinguishingan officer from an employee is "whether any sovereign function of government is conferred upon the individual to be exercised by him for the benefit of the public largely independent of the control of others." Aldine Independent School District v. Standley. 280 S.W.2d at 583 (quoting Dunbar v. BrazoriaCounty, 224 S.W.2d 738 (Tex.Civ.App. - Galveston 1949.writ ref'd)) (emphasis in original). See also Attorney General Opinion MW-415 (1981) (nodistinction existsbetween "civil office" as used in articleXVI, section 40, of the Texas Constitutionand "public office"
as used elsewhere in the constitution).

The zoning authority of all cities, includinghome rule cities, is set out in articles lOlla through 1Ollj. V.T.C.S., the general zoning enabling act. SeeAttorney General Opinion JM-117 (1983); 888 alsoV.T.C.S. art. 1175(26). Article lOllf,V.T.C.S., provides for a municipal zoningcommission:

(a) In order to avail itself of the powers conferred by this Act, the legislativebody of a home-rule .city shall, and the legislative body of a general law municipality may, appoint a commission, tobe known as the ZoningCommission.

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(b) If a Zoning Commission is appointed, It shall recommend the boundaries of the various original districts and appropriate regulations to be enforced therein. S&h Commission shall make
a preliminary report and hold public hearings thereon before submitting its final report, and such legislative body shall not hold its public hearings or take action until it has received the final report of such Commission; provided, however, that any city or,town.by ordinance, may provide for the holding of any public hearing of the legislative body, after published notice required by Section 4 of this Act, jointly with
anv nublic hearing reauired to be held bv the Zoning Commisslon,"butsuch legislativebody'shall not take action until it has received the final report of such Zoning Commission. Where a City Plan Commission already exists, it may be appointed as the Zoning Commission.

. . . (c) Any other law that refers to a municipal Zoning Commission or Planning Commission shall be construed as referring to the legislativebody in the case of a general law municipality that exercises zoning power without appointment of a Zoning Commission. (Emphasisadded).

V.T.C.S. art. 1011f. The zoning commission reports its recommendations on the boundaries of zoning districts and regulations to be enforced there.
Article 1011e.V.T.C.S.. provides In part:

(a) Such regulations, restrictions, and boundaries [adoptedby the city legislativebody] may from time to time be amended, supplemented,. changed,modified, or repealed. In case,however, of a written protest against such change, signed by the owners of 20per cent ormore eitherof the area of the lots or land included in suchproposed change, or of the lots or land immediately adjoining the same and extending 200 feet therefrom, such amendment shall not become effective except by the favorable vote of three-fourths of all members of the legislative body of such municipality. In computingthepercentageof land area, the area of streets and alleys shall be included in the computation. The legislative body of a municipalitymay also provide by ordinance that a

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vote of three-fourths of all its members is required to overrule a recommendation of the zoning commission that a proposed amendment, supplement, or change be denied. (Emphasis added).

V.T.C.S. art. 1011e. The underlined language allows the city governingbody todelegatepart of its legislativepower to,the zoning commission. See generally City of San Antonio v. Lanier, 542 S.W. 2d 232 (Tex. Cl-f.App. - San Antonio 1976, writ ref'd n.r.e.) (case decided prior to--statutory amendment adding underlined language). Under this provision, the recommendationof the zoning commission can prevail over thewill of a simple majority or two-thirdsmajority of the city's governingbody. Thus, the zoning commissioncould control the power to amend, supplement, or change the city's zoning regulations, restrictions, and boundaries. If the governingbody of Lufkin has delegated this power to the zoning commission, it has conferredupon the commissiona sovereignfunctionof governmenttobe exercised largely independent of the control of others. Members of the commissionwould in that casebe civil officersof emolument.

If the Lufkin Zoning and Planning Commission does not exercise delegated legislativepower under article 1011e.V.T.C.S., or other governmental power delegated by the city's governmental body, we believe the commissionmembers are nonetheless public officers,based
on powers grantedby article 1011f.V.T.C.S. This is a close question. Some city planning or zoning commissions act only in an advisory capacity. Nicholsv. Dallas, 347 S.W.2d 326 (Tex.Civ. App. - Dallas 1961,writ ref'dn.r.e.). The city legislativebody,however,may not hold public hearings or take action until it has received the final report of the commission. V.T.C.S. art. 1011f. Thus. the commission has some controlover the time at which the city councilmay exercise its legislativepower to establish and change zoning boundaries and regulations. In addition, a Texas court has treated the members of the zoning commissionas officers in determining that theywouldbe de facto officers if their appointment were Drocedurallv incorrect. Storm Bros. v. Town of Balcones Heights, 236 S.W.2d 842 (Tex. Civ. APP. - El Paso 1950,writ ref'dn.r.e.).

We conclude that members of the Lufkin City Zoning and Planning Commission are civil officers of emolument. If a director of the Angelina and Neches River Authority has performed services which entitle him to receive compensation under the statute, he serves in that position as a civil officer of emolument and may not simultaneously serveon theLufkin City Zoning and PlanningCommission.

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SUMMARY

Members of theLufkin City Zoning and Planning Commission are civil officers of emolument. If a director of theAngelina andNeches RiverAuthority has performed serviceswhich entitlehim to receive compensation,he serves in thatposition as a civil officer of emolument. Article XVI, section 40. of theTexas Constitutionbars oneperson fromholding these two offices at the same time.
VeryItrulyyouri

JIM HATTOX AttorneyGeneral of Texas

JACKHIGRTOWER FirstAssistantAttorney General

MARY Rl?LLER ExecutiveAssistantAttorney General

JUDGE ZOLLIE STEAKLFP SpecialAssistant Attorney General

RICK GILPIN Chairman,Opinion Committee
Preparedby Susan L. Garrison AssistantAttorney General

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