P

fi THE 

### ATTORNEY GENERAL OF TEXAS Amary 26,1988

Honorable David II.Cain Chairman Committee on Transportation Tsxas House ofRepresentatives P. 0. Box 2910 Austin, Texas 78769

pear Representative Cain:
you request advice on the Opinion No. JM-847
Re: Whether legislator may receive payment from a state agency for serving as special commissioner in condsmnation proceedings (RQ-1262)

following question:
Ifamember of the legislature serves as a special commissioner in a condemnation proceeding under the Property Code, is that legislator entitled to remuneration by the State Department of Highways and Public Transportation? The lawof eminent domain isset out inchapter 21 of the Property Code. Ifthe state wishes to acquire real property forpublic use but cannot agree with the property owner on the amount ofdamages, the condemning entity may begin acondemnation proceeding. Property Code 521.012. Section 21.014 of the Property Code provides for the appointment of special .comsissioners to determine the value of the property:

(a) The judge of a court in which a condemnation petition is filed or to which an eminent domain case is assigned shall appoint three disinterested freeholders who reside in the county as special commissioners to assess the damages of the owner of thepropsrty bsing condemned. The judge appointing the special commissioners, shall give preference topersons agreed onby the parties. If a person fails to serve as a commissioner, the judgemay appoint a replacement.

p. 4097, Honorable David B. Cain -page 2 (JM-847)

(b) The special commiseionere shall swear to assess damages fairly, impartially, and according to the law. (c) Special oommissioners may compel the attendance 

### ofwitnesses and the production of testimony, administer oathe, and punish for contempt inthe same

### manneras a county jWw. The epeoial conieeionere hold ahearing atwhich the parties may 

### offer evidence relevant to the property ovner*e damages. Property Code 6621.015, 21.041. The cmieeionere then aeeue damages according to the evidence preeented at the hearing and file a written statement of their decision vith the court. Property Code 5521.042, 21.049. If a party objects to the special commissioners* findings inaccordance with section 21.018 of the Property Code, the court will try the case. Property Code 521.018. If there are no timely objections, the judge shall adopt the commissioners' findings as the judgment 

### ofthe court. property Code 521.061. A judgment inacondemnation proceeding isappealed according to the procedure applicable in

### othercivil cases. Property Code 521.063. The validity of commissioners0 proceedings depends on strict compliance with the authorizing statutes. citv of u v. Sea, 245 **S.W.** 749 (Tex.Civ. App. -Dallas 1922,writ ref'd). Proceedings before special commissioners are administrative rather than judicial.

adhoc basis to serve as fact finders, although indoing 80 they exercise povere not available topetit jurors. ,$@sAttorney General Opinion WW-422 (1958). Section 21.047(c) of the Property Code allows the compensation for special commissioners tobe taxed as court costs:

(0) **A** court that has juriediction 

### of an eminent domain proceeding may tax $10 or more as a reaeonable fee for each epecial commissioner aspart of the court costs of the proceeding.
Court costs incondemnation suits to secure rights ofway for state highways are paid from appropriations to the State Department ofHighvays and Public Transportation. -.

-

p.4098Honorable 

### DavidH. Cain -Page 2 ~4-847)

,-

;- **Attorney** General opinion WW-472 (1958). Thue, special

commissioners appointed in suite to condemn land for state highvaye are paid from 

### fundsappropriated to the State Department of Iiighvayeand Public Traneportation. &; **s Attorney**  General opinion WW-422 (1958).


### You **do** not 

### refu to specific provisions of lawwhich might be relevant toyour guestion. Wewill consider whether article III, section 18, orarticle XVI, section **40,** of the Texas Constitution vould prevent a legislator from receiving compensation from the State Department of Highways and Public Transportation for serving as a special commieeioner. Article XVI, section 40,

### of the Texas Conetitution prwidee inpart:

Nomember of the Legislature 

### ofthis State may hold any

### other office or position of profit under this State, 

### or the Unit;; States, except as a notary public qualified by law.
Tex. Const. art. XVI, S40 (lastsentence). If a special commieeioner occupies an office orposition of profit, a legislator may not serve in that capacity. Judicial decieione andprior opinione of this office state as an essential element ofan office that itsduties are continuing innature and not intermittent. m ~QQW y. Jm, 141 S.W.?d 698 (Tex.Civ. App. -Austin 1940, writ ref'd): see alsp J&&ar v. B-a Co- **224** S.W.2d **738** (Tax.Civ. APP. -Galveston 1949, writ ;efld) (quotingdefinition fromw v. Jw). The court in wouuh v. w, 55S.W. 120, 122 (Tax. 1900) quoted Mechem on Public Officers to define npublic office" as follows:

\Public office isthe right, authority, and duty created and conferred by law,m iar aiveneeifher bv U e of the crw D~YZT, an individual is invested with some portion of the sovereign functions of the government, tobe exercised **by** him **for** the benefit of thepublic.* (Emphasis added.)
55 S.W. at 122. m **F.** Mechem, -Treatise on the Law of cOm, 51 (1890).



### p.4099Honorable David H. Cain -Page 4 (JM-847)

Opinione of this office have conetrued the term "office or position ofprofits es itappeared in former article XVI, section 33, of the Texas Constitution, vhich prohibited the state accounting officere from paying the salary of any -

agent, officer or appointee, who holds at the same time any other office or position ofhonor, trust orprofit, under this State or the **United** States. . . . S.J.R. No. 7,Acte 1926, 39th beg., at 680. **Attorney** General Opinion O-2798 (1940) considered whether a criminal district attorney could be compensated for repreeenting the state inaoivil suit at the request of **the Attorney**  **General ’** **s** Office. The criminal district attorney was an officer subject to the prohibitions of former article XVI, section 33. The opinion concluded, however, that his employment asan attorney inone case did notmake him theholder of another woffice orposition ofhonor, trust orprof1t.e The opinion stated:

If that were the caee, every practicing attorney would hold asmany ~poeitions . . . 

### underthe State' ashe had clients with pending suite. This is not themeaning of theword *poeition~ inthis connection. **Attorney** General Opinion O-2798 (1940). s -aton v. v, 708 S.W.ld 493 (Tex. APP. -Houston [lst Diet.] 1986,writ ref'd n.r.e.). **Attorney** General Opinion V-371 (1947) concluded that a state employee could receive a jury 

### feefor serving as a juror while on state payroll. The opinion pointed out that neither agrand juror nor apetit juror holds an office within themeaning of the conetitutional provisions prohibiting theholding of **two officu.**  **Nor** did a juror hold awposition ofhonor, trust 

### or profit, under this State," within former article XVI, section 33, of the Texas Conetitution. It cited the folloving rule from caeu of other states that

[a] Qoeition~ isanalogoue to an 'office*, inthat the duties that pertain to it are -and. . . . (Emphasis added by **Attorney** General opinion.) --.

p.4100Honorable David H. Cain -Page 6 (J&847)

/--

-

P **Attorney** general Opinion V-371 (1947), g&&lg mard of

, 168 **A.** 162, 163 (N.J.Sup. 1933); -th **of** Toya w, 82 **A.** 528, 529 (N.J. Sup. 1912). The opinion stated as follove:

Service as a **juror** totally la&e the elements ofpermanency and continuity which are l eeential cheracterietice of an *office or poeition~ as those terme **are** used inSection 33, ofMicle 16,Texas Constitution. **Attorney** general Opinion V-371 (1947). **Attorney** general Opinion O-4313 (1942) concluded that 

### aumber ofthe State hoard of Education **could** also serve **on** the Alien Enemy Hearing hoard, which heard cases involving alien enemies 

### apprehendedby the Department of Juetice and recommended to theUnited States Attorney General that they be released, paroled, or interned. The opinion concluded thatmemberehip on the board did not involve *holding . . .any office ofprofit or trust under theUnited States.n m Tax. Conet. art. XVI, 512. Nor did itconstitute a epoeition ofhonor, trust orprofitm 

### underarticle XVI, uction 33,

### of the Texas Constitution. The **term** 

### l

position* implied, **%mong** others, w, compeneation, m.e **Attorney** general Opinion O-4313 (emphasis added). The absence **or** relative **absence** of these essentials **meant** thatmembership on the board did not conetitute a *position* within article XVI, section 33. Special commissioners are appointed by the court **for one**  case. They do not serve for a fixed term. Their service lacks the elements of permanency and continuity which are essential toholding an nofficem or Wposition of profit." **A** legislator*s service as a special commissioner inacondemnation suit is **not** prohibited by article XVI, section 40, **of** the Texas Constitution. Article III, eection 18, of the Texas Constitution prwide8:
Sec. 18. No **Senator** or Repruentative

shall, during the term **for** which he vae elected, be eligible to (1)any civil office orprofit under this State which shall have been created, or the emoluments ofwhich may have been increased, during such term. . . nor shall any **member** of the Legislature be

p.4101Honorable David H. Cain -Page 6 (JM-847)

interuted, either directly or indirectly, inany wntraot vitb the State, or any county theruf, authorieed by any lavpassed during the term for vhich he vaelleoted.
We have already determined that a special commissioner does not hold an office. **See aLpp**  **Attorney** General Opinion WW-415 (1981) (%ivil office* is synonymous with spublic office*). Thus, the first prwieion of article III, section 18, of the Texas Constitution, quoted above, does not probibit a legislator from serving as a special commimsioner ina condemnation proceeding. The final prwieion of article III, section 18, quoted abowe, prohibits anypereon from entering into a contract with the state or county authorized by a statute parFd.y ;nlegielature ofvhich that **person** vae amember.

,708 S.W.Zd 493 (Tex.App. -Houston [letDiet.] 1986,vrit ref'd n.r.e.), held that a legislator vho represented an indigent defendant under a court appointment did not have an wintereat" ina econtractw vithin article III, section 18, of the Texas Constitution, even though compensation was payable directly tohimby the state. The court said that -j the kind of interest which article III, section 18, vas intended to prohibit was evemplified by the negotiated **contract** at issue inw v. w Counfy 57 S.W. 338 (Tex.Civ. App. 1900, nowrit). 708 S.W.2h at 496 (diecueeing w). In&,jJ&& **a** legislator contracted vith a county topublish a delinquent tax list. The statute providing **for** publication of the list had been adopted and amended while Lillard was a legislator. Article III, section 18, of the constitution therefore made the contract invalid. 57 **S.W.** at 340. The judicial appointment in ---be%% m vae unlike the agreement inm. . . 496. TheN court stated es follovs:

An appointment isunlike acontract in many regards. **For** example, there is no mutuality of obligation. The relationehip created by the order isunilatual innature becauee it **due** not crute a right to continued employment as counsel, or to

p.4102Honorable David H. Calm- Page 7 UlG847)

,-

**P** compuuation **for** work **done** out-of-court, or for investigative Sue in **excue** of **$500.1** 

## Al peoial c~ieeionu isappointed to serve for a particular **cau,** and has no entitlement to continued eervice inthat capacity. His compensation isdetermined 

### zozr wurt afterhe has completed thework of acommisBecauee anappointment as special commissioner issimilar in important reepeote to the appointment asattorney for an indigent defendant, the decision in controls the present case. A epecial commissioner does not have a contract vith the state or county merely becauee hemay receive reasonable compensation taxed as court costs against the State Department 

### ofHighvaye and Public Traneportation. &S 708 **S.W.2d** at **496. A**  legielator*e appointment as couneel was not an interest in a contract as contemplated by article III, section 18,of the wnetitution. IQL 

### Weconclude that neither article III, section 18,nor article XVI, section 40, of the Texas Constitution prohibite a legislator from receiving compensation from the State Department of Highways and Public Transportation for serving as a special commiseioner ina condemnation case.
We point out that uction 8 of article 6252-9b, V.T.C.S., inoludu the following 

### prwieions:

**SW. 8.**  (a) No state officer or state employee should accept or solicit any gift, favor,or service thatmight reasonably tend to influence him in the discharge of his official duties **or** that he knows or should knov isbeing **offered** himvith the intent to influence his official conduct.

1. Articles 26.05 and 26.055 of the Code of Criminal Procedure, which provide for the compensation of attorneys appointed to represent indigent **defendants** in criminal caeee, vere amended by the 70th Legislature. Acts 1987, **70th Leg.,**  **ch. 979,**  **f3;** oh. 1049, 552. The attorney isto be reimbursed for reaeonable expeneee for inveetigation incurred with prior courtapprwal and for reasonable and neoeeeary time spent out of court inthe case, supported by anydocumentation the court requires. Code Crim. Proc. art. **26.05.**

p.4103Honorable David Ii.Cain -Page 8 W-847) ,

(b) No state 

### officer **or** state employee should accept employment 

### or engage in any businese orprofessional activity which he might reasonably expect would require or induce him **to** disclose confidential information acquired by reason of his official position. (a) No state officer 

### or state employee should accept other employment or compensationwhich could reasonably 

### beexpected to impair his independence of judgment in the performance ofhis official duties. 

### Whetherservice as a special commissioner inaparticular case isconsistent with these standards isa question of factwhich is ultimately for the legielature to decide. Attorney General Opinion H-688 (1975).
SUMMARY Neither article III, section 18, nor article XVI, section 40, of the Texas Constitution bare a legislator from serving as a special commiseioner in an eminent domain proceeding and receiving compensation fromthe State Department ofHighways and Public Transportation forthat service.

JIM 

### MATTOX Attorney General of Texas
**MARY KELLER**  First Assistant **Attorney** General

mu wxREARY Executive Assistant **Attorney** General
JUDGEZOLLIESTEAKLEY Special Assistant **Attorney** General
RICK GILPIN Chairman, Opinion Committee Prepared by Susan L.Garrison Assistant Attorney General

p.4104