P 

fi 

THE ATTORNEY GENERAL 

OF TEXAS 

Amary 26, 1988 

Honorable David II. Cain 

Chairman 

Committee on Transportation 

Tsxas House of Representatives 

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: 

If a member 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 law of eminent domain is set out in chapter 21 of 

the Property Code. If the state wishes to acquire real 

property for public use but cannot agree with the property 

owner on the amount of damages, the condemning entity may 

begin a condemnation 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 the propsrty bsing condemned. The judge 

appointing the special commissioners, shall 

give preference to persons agreed on by the 

parties. If a person fails to serve as a 

commissioner, the judge may 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 of witnesses and the production 

of testimony, administer oathe, and punish 

for contempt in the same manner as a county 

jWw. 

The epeoial conieeionere hold a hearing at which 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 in accordance 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 of the court. property Code 521.061. A judgment 

in a condemnation proceeding is appealed according to the 

procedure applicable in other civil 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. 

ad hoc basis to serve as fact finders, although in doing 

80 they exercise povere not available to petit jurors. 

,$@s Attorney General Opinion WW-422 (1958). 

Section 21.047(c) of the Property Code allows the 

compensation for special commissioners to be 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 as part of the court costs of 

the proceeding. 

Court costs in condemnation suits to secure rights of way 

for state highways are paid from appropriations to the 

State Department of Highvays and Public Transportation. 

-. 

- 

p. 4098 
Honorable David H. 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 funds appropriated to the State 

Department of Iiighvaye and Public Traneportation. &; 

s Attorney General opinion WW-422 (1958). 

You do not refu to specific provisions of law which 

might be relevant to your guestion. We will consider 

whether article III, section 18, or article 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 in part: 

No member of the Legislature of this 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 (last sentence). If a special 

commieeioner occupies an office or position of profit, a 

legislator may not serve in that capacity. 

Judicial decieione and prior opinione of this office 

state as an essential element of an office that its duties 

are continuing in nature 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) 

(quoting definition from w v. Jw). The court in 

wouuh v. w, 55 S.W. 120, 122 (Tax. 1900) quoted 

Mechem on Public Officers to define npublic office" as 

follows: 

\Public office is the right, authority, and 

duty created and conferred by law, m 

iar a iveneeifher bv U 

e of the crw 

D~YZT, an individual is invested with some 

portion of the sovereign functions of the 

government, to be exercised by him for the 

benefit of the public.* (Emphasis added.) 

55 S.W. at 122. m F. Mechem, -Treatise on the Law of 

c Om, 51 (1890). 

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

Opinione of this office have conetrued the term 

"office or position of profits es it appeared 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 

of honor, trust or profit, 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 in a oivil 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 as an attorney in one case 

did not make him the holder of another woffice or position 

of honor, trust or prof1t.e The opinion stated: 

If that were the caee, every practicing 

attorney would hold as many ~poeitions . . . 

under the State' as he had clients with 

pending suite. This is not the meaning of 

the word *poeition~ in this 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 fee for serving as a 

juror while on state payroll. The opinion pointed out 

that neither a grand juror nor a petit juror holds an 

office within the meaning of the conetitutional provisions 

prohibiting the holding of two officu. Nor did a juror 

hold a wposition of honor, 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~ is analogoue to an 'office*, 

in that the duties that pertain to it are 

-and. . . . (Emphasis 

added by Attorney General opinion.) 

--. 

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

/-- 

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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 of permanency and continuity which are 

l eeential cheracterietice of an *office or 

poeition~ as those terme are used in Section 

33, of Micle 16, Texas Constitution. 

Attorney general Opinion V-371 (1947). 

Attorney general Opinion O-4313 (1942) concluded that 

a umber of the State hoard of Education could also serve 

on the Alien Enemy Hearing hoard, which heard cases 

involving alien enemies apprehended by the Department of 

Juetice and recommended to the United States Attorney 

General that they be released, paroled, or interned. The 

opinion concluded that memberehip on the board did not 

involve *holding . . . any office of profit or trust under 

the United States.n m Tax. Conet. art. XVI, 512. Nor 

did it constitute a epoeition of honor, trust or profitm 

under article 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 that membership 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 to holding an nofficem or Wposition of 

profit." A legislator*s service as a special commissioner 

in a condemnation 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 

or profit under this State which shall have 

been created, or the emoluments of which may 

have been increased, during such term. . . 

nor shall any member of the Legislature be 

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

interuted, either directly or indirectly, 

inany wntraot vitb the State, or any 

county theruf, authorieed by any lav passed 

during the term for vhich he va e l leoted. 

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 in a condemnation proceeding. 

The final prwieion of article III, section 18, 

quoted abowe, prohibits any pereon from entering into a 

contract with the state or county authorized by a statute 

parFd.y ;nlegielature of vhich that person vae a member. 

, 708 S.W.Zd 493 

(Tex. App. - Houston [let Diet.] 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" in a econtractw vithin article III, section 18, 

of the Texas Constitution, even though compensation was 

payable directly to him by 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 in w v. w Counfy 57 S.W. 

338 (Tex. Civ. App. 1900, no writ). 708 S.W.2h at 496 

(diecueeing w). In &,jJ&& a legislator contracted 

vith a county to publish 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 

m vae unlike the agreement in m. ---be%% . . 

496. The N court stated es follovs: 

An appointment is unlike a contract in 

many regards. For example, there is no 

mutuality of obligation. The relationehip 

created by the order is unilatual in nature 

becauee it due not crute a right to 

continued employment as counsel, or to 

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

,- 

P 

compuuation for work done out-of-court, or 

for investigative Sue in excue of $500.1 

A l peoial c~ieeionu is appointed to serve for a 

particular cau, and has no entitlement to continued 

eervice in that capacity. His compensation is determined 

zozr wurt after he has completed the work of a commisBecauee an appointment as special commissioner 

is similar in important reepeote to the appointment 

as attorney 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 he may receive reasonable 

compensation taxed as court costs against the State 

Department of Highvaye 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 

We conclude 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 in a 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 that might reasonably tend 

to influence him in the discharge of his 

official duties or that he knows or should 

knov is being offered him vith 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 is to 

be reimbursed for reaeonable expeneee for inveetigation 

incurred with prior courtapprwal and for reasonable and 

neoeeeary time spent out of court in the case, supported 

by any documentation the court requires. Code Crim. Proc. 

art. 26.05. 

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

, 

(b) No state officer or state employee 

should accept employment or engage in any 

businese or professional 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 compensation which could reasonably be expected to 

impair his independence of judgment in the 

performance of his official duties. 

Whether service as a special commissioner in a particular 

case is consistent with these standards is a question of 

fact which 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 

from the State Department of Highways and 

Public Transportation for that 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