THE ATTORSEY GEXERAL 

OF TEXAS 

May 20, 1987 

Honorable Roy Blake 

Chairman 

Administration Committee 

Texas State Senate 

P. 0. Box 12068 

Austin, Texas 78711 

Opinion No. a-704 

Re: Whether an individual may 

simultaneously serve as a director 

of a river authority and a member 

of a city planning land zoning 

commission 

Dear Senator Blake: 

You ask whether a member of the Lufkin City Planning and Zoning 

Commission may also serve as director of the Angelina and Neches River 

Authority. 

Article XVI, section 40, of the Texas Constitution provides: 

No person shall hold or exercise at the same 

time, more than one civil offices of emolument, 

except. . . . (Exceptions not applicable). 

Attorney General Opinion JR-594 (1986) concluded that a director 

of the Angelina and Neches River Authority occupies a civil office of 

emolument. The opinion pointed out the provisions 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 service necessary to discharge 

their duties, provided such service is authorized 

by vote of the Board of Directors. They shall file 

with the Secretary a verified statement showing 

the actual number of days of service each month 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. 

p. 3256 
Honorable Roy Blake - Page 2 (JM-704) 

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 and Neches 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 

for which he is elected or appointed. Bastrop County v. 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) (municipal judge holds a civil office of emolument even 

though he refuses to accept the compensation attached to it). Whether 

any director or directors of the river authority perform any of the 

services which 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 factor distinguishing an 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. 

Brazoria County, 224 S.W.2d 738 (Tex. Civ. App. - Galveston 1949. writ 

ref'd)) (emphasis in original). See also Attorney General Opinion 

MW-415 (1981) (no distinction exists between "civil office" as used in 

article XVI, section 40, of the Texas Constitution and "public office" 

as used elsewhere in the constitution). 

The zoning authority of all cities, including home rule cities, 

is set out in articles lOlla through 1Ollj. V.T.C.S., the general 

zoning enabling act. See Attorney General Opinion JM-117 (1983); 888 

also V.T.C.S. art. 1175(26). Article lOllf, V.T.C.S., provides for a 

municipal zoning commission: 

(a) In order to avail itself of the powers 

conferred by this Act, the legislative body of a 

home-rule .city shall, and the legislative body 

of a general law municipality may, appoint a 

commission, to be known as the Zoning Commission. 

p. 3257 
Honorable Roy Blake - Page 3 (~~-704) 

(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,"but such legislative body'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 legislative body in 

the case of a general law municipality that 

exercises zoning power without appointment of a 

Zoning Commission. (Emphasis added). 

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 [adopted by the city legislative body] 

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 20 per cent or more either of the 

area of the lots or land included in such proposed 

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 computing the percentage of land area, 

the area of streets and alleys shall be included 

in the computation. The legislative body of a 

municipality may also provide by ordinance that a 

p. 3258 
Eonorable Roy Blake - Page 4 (m-704) 

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 

governing body to delegate part of its legislative power 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 recommendation of the zoning commission can 

prevail over the will of a simple majority or two-thirds majority of 

the city's governing body. Thus, the zoning commission could control 

the power to amend, supplement, or change the city's zoning 

regulations, restrictions, and boundaries. If the governing body of 

Lufkin has delegated this power to the zoning commission, it has 

conferred upon the commission a sovereign function of government to be 

exercised largely independent of the control of others. Members of 

the commission would in that case be civil officers of emolument. 

If the Lufkin Zoning and Planning Commission does not exercise 

delegated legislative power under article 1011e. V.T.C.S., or other 

governmental power delegated by the city's governmental body, we 

believe the commission members are nonetheless public officers, based 

on powers granted by article 1011f. V.T.C.S. This is a close question. 

Some city planning or zoning commissions act only in an advisory 

capacity. Nichols v. Dallas, 347 S.W.2d 326 (Tex. Civ. App. - Dallas 

1961, writ ref'd n.r.e.). The city legislative body, 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 control over the time at which the city council may exercise 

its legislative power to establish and change zoning boundaries and 

regulations. In addition, a Texas court has treated the members of 

the zoning commission as officers in determining that they would be 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'd n.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 serve on the Lufkin City Zoning and Planning Commission. 

p. 3259 
Eonorable Roy Blake - Page 5 (JR-704) 

SUMMARY 

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, he serves in that position as a civil 

officer of emolument. Article XVI, section 40. of 

the Texas Constitution bars one person from holding 

these two offices at the same time. 

Very I truly youri 

JIM HATTOX 

Attorney General of Texas 

JACK HIGRTOWER 

First Assistant Attorney General 

MARY Rl?LLER 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAKLFP 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Susan L. Garrison 

Assistant Attorney General 

p. 3260