Can a Texas municipal judge also serve as a director of the Gulf Coast Waste Disposal Authority?

Texas AG Opinion JC-0095: Dual Office, the Gulf Coast Waste Disposal Authority, and Article XVI, Section 40

Plain-English summary

State Senator J.E. "Buster" Brown asked the Attorney General to reconsider Letter Opinion 98-124, which had concluded that a Houston municipal judge was barred by article XVI, section 40 of the Texas Constitution from also serving as a director of the Gulf Coast Waste Disposal Authority (the GCWDA). The senator raised two new arguments. The Attorney General again concluded that holding both positions was impermissible and affirmed the earlier opinion.

Article XVI, section 40 bars a person from holding more than one civil office of emolument at the same time, with an exception for the officers and directors of soil and water conservation districts. The senator first argued that the GCWDA qualified for that exception. The GCWDA, however, is a conservation and reclamation district and political subdivision created by special act under article XVI, section 59, to run a regional water quality management program for Chambers, Galveston, and Harris counties.

The opinion worked through conflicting prior advisories. Letter Advisory No. 31 (1973) had suggested that "soil and water conservation district" might include a river authority. But Letter Advisory No. 150 (1978) adopted a narrow reading, holding that a drainage district was not within the exception because soil and water conservation districts are created under a specific statute (now chapter 201 of the Agriculture Code), and the phrase has a settled legal meaning. Chapter 201 confirmed that meaning: such districts grew out of the 1939 State Soil Conservation Act, are formed on petition to the State Soil and Water Conservation Board, and exist to conserve soil and prevent erosion. The GCWDA was not created under chapter 201, so it was not a soil and water conservation district. The opinion found Letter Advisory No. 150's narrow reading persuasive, noted that later opinions had agreed (river authorities and certain water districts are not within the exception) and that the Legislature had met ten times since 1978 without disturbing it, and expressly overruled Letter Advisory No. 31.

The senator next argued that, even if the GCWDA was not within the exception, the benefit proviso of article XVI, section 40 allowed the dual service. That proviso lets a nonelective state officer hold another nonelective office that benefits the state or is required by law, with no conflict with the original office. The opinion explained, consistent with Opinion DM-428 (1996) and Letter Opinion 97-027 (Brazos River Authority), that while the Legislature is the appropriate body to decide generally whether holding multiple offices benefits the state, applying the benefit question to a particular person requires a factual determination the Attorney General cannot make in the opinion process. Although the opinion did not doubt that the individual benefited the state in both roles, it was not for the office to find that holding both offices satisfied the constitutional requirement. So, absent a legislative or other appropriate determination, the person could not serve at once as municipal judge and GCWDA director.

Currency note

This opinion was issued in 1999. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Is the Gulf Coast Waste Disposal Authority a soil and water conservation district?
No. The opinion concluded the Authority was created by special act as a conservation and reclamation district, not under chapter 201 of the Agriculture Code, so it does not fall within the article XVI, section 40 exception.

Could the municipal judge keep both offices under the "benefit" proviso?
Not on the AG's say-so. The opinion held that whether holding both offices benefits the state in a particular case is a fact question the Attorney General cannot resolve in the opinion process; it would take a legislative or other appropriate determination.

What happened to the older advisory the judge relied on?
The opinion expressly overruled Letter Advisory No. 31 (1973), which had suggested a river authority might count as a soil and water conservation district.

What is a soil and water conservation district, then?
Under chapter 201 of the Agriculture Code, it is a district formed on petition to the State Soil and Water Conservation Board to conserve soil and related resources and prevent soil erosion, tracing back to the 1939 State Soil Conservation Act.

Background and statutory framework

Article XVI, section 40 prohibits holding more than one civil office of emolument, excepting officers and directors of soil and water conservation districts, and its benefit proviso allows a nonelective state officer to hold another beneficial or legally required nonelective office absent a conflict. The GCWDA was created under article XVI, section 59 as a conservation and reclamation district.

The meaning of "soil and water conservation district" was settled by chapter 201 of the Agriculture Code (originally article 165a-4 of the Revised Civil Statutes, the 1939 State Soil Conservation Act, renamed in 1965). Sections 201.001, 201.041, 201.101 through 201.108, and 201.121 through 201.133 set out the districts' conservation purpose, petition-based creation, and powers. The opinion relied on Letter Advisory No. 150 (1978), which quoted Turullols v. San Felipe Country Club and Alexander v. State for the canon that a word with settled legal meaning is presumed used in that sense, and it noted agreement in later opinions including JM-172 (1984) and LO-90-18. For the benefit proviso, it followed DM-428 (1996) and Letter Opinion 97-027. A footnote observed that, in response to DM-428, the Legislature had authorized holding more than one municipal judgeship in Government Code section 574.001(b).

Citations

Constitutional and statutory provisions:

• Tex. Const. art. XVI, § 40, § 59
• Tex. Agric. Code Ann. § 201.001, § 201.041, §§ 201.101-.108, §§ 201.121-.133
• Tex. Gov't Code Ann. § 574.001(b)

Cases:

• Turullols v. San Felipe Country Club, 458 S.W.2d 206 (Tex. Civ. App.-San Antonio 1970, writ ref'd n.r.e.)
• Alexander v. State, 204 S.W. 644 (Tex. Crim. App. 1918)

Attorney General opinions and advisories referenced: LO-98-124; LA-31 (1973) (overruled); LA-150 (1978); JM-172 (1984); LO-90-18; DM-428 (1996); LO-97-027; M-480 (1986).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0095
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1999/jc0095.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL STATE OF TEXAS

JOHN CORNYN

August 11, 1999

The Honorable J.E. "Buster" Brown
Chair, Natural Resources Committee
Texas State Senate
P.O. Box 12068
Austin, Texas 78711-2068

Opinion No. JC-0095

Re: Whether the Gulf Coast Waste Disposal Authority is a soil and water conservation district for purposes of article XVI, section 40 of the Texas Constitution, and related question: Reconsideration of Attorney General Letter Opinion No. 98-124 (RQ-0015)

Dear Senator Brown:

You have requested our reconsideration of Attorney General Letter Opinion No. 98-124, which held, inter alia, that a municipal judge of the City of Houston was barred by article XVI, section 40, of the Texas Constitution from simultaneously holding the office of director of the Gulf Coast Waste Disposal Authority ["the GCWDA"]. You raise two issues that were not addressed in the earlier opinion. For the reasons indicated below, we again must conclude that the simultaneous holding of those two positions is impermissible, and accordingly, we affirm the conclusion of Letter Opinion 98-124.

Article XVI, section 40, provides, in relevant part:

No person shall hold or exercise at the same time, more than one civil office of emolument, except . . . the officers and directors of soil and water conservation districts . . . .

TEX. CONST. art. XVI, § 40. You suggest, first, that a member of the Board of Directors of the GCWDA is excepted from the constitutional prohibition because it is a "soil and water conservation district." See Letter from Honorable J. E. "Buster" Brown, Texas State Senator, to Honorable John Cornyn, Texas Attorney General (Jan. 19, 1999) (on file with Opinion Committee) [hereinafter "Request Letter"]. The GCWDA is "a conservation and reclamation district and a political subdivision created by the Texas Legislature pursuant to article XVI, section 59 of the Texas Constitution." Tex. Att'y Gen. LO-98-124, at 1. The purpose of the GCWDA is to develop and effectuate a regional water quality management program for Chambers, Galveston, and Harris counties. See id.

In Letter Advisory No. 31, upon which the individual municipal judge in question has relied, the Attorney General considered whether an assistant executive director of a state agency was eligible to serve simultaneously as a director of a river authority. The opinion appears to suggest, without explicitly so finding, that the term "soil and water conservation district" includes a river authority:

If the [r]iver authority to which you refer may be classified as a soil and water conservation district, and it seems that river districts are generally classed as soil and water conservation districts under Title 128, V.T.C.S., then a position as its director is exempt from the prohibition by Section 40, Article 16, of dual employment.

Tex. Att'y Gen. LA-31 (1973) at 2 (emphasis added). In a subsequent opinion, however, this office, without referring to Letter Advisory No. 31, adopted a narrow reading of the term:

We do not believe that a director of a drainage district falls within the article 16, section 40 exception relating to directors of soil and water conservation districts. Drainage districts are created pursuant to chapter 56 of the Texas Water Code. Soil and water conservation districts, on the other hand, are created under article 165a-4, V.T.C.S. [now chapter 201, Texas Agriculture Code]. The Legislature is presumed to have chosen the language of its statutes, and particularly the language of the Constitution, with care and deliberation, and when a word has a settled meaning or legal significance, it is presumed to have been used in that sense. Turullols v. San Felipe Country Club, 458 S.W.2d 206, 209 (Tex. Civ. App.-San Antonio 1970, writ ref'd n.r.e.); see Alexander v. State, 204 S.W. 644, 647 (Tex. Crim. App. 1918). While there are general terms such as "conservation and reclamation districts" which could embrace both drainage districts and soil and water conservation districts, the Legislature did not use a generic term. The phrase it did use, "soil and water conservation districts," has a settled legal meaning and does not include drainage districts.

Tex. Att'y Gen. LA-150 (1978) at 2 (citation omitted). Letter Advisory No. 150 did not elaborate on the "settled legal meaning" of the term "soil and water conservation district." Id. Chapter 201 of the Agriculture Code, however, does so.

The State Soil Conservation Act was first enacted in 1939 as article 165a-4 of the Revised Civil Statutes. See Act of April 11, 1939, 46th Leg., R.S., ch. 3, 1939 Tex. Gen. Laws 7. It provided for a State Soil Conservation Board and five district boards. See id. § 4, at 10-14. In 1965, the name "soil conservation district" was changed to "soil and water conservation district." Act of April 29, 1965, 59th Leg., R.S., ch. 176, 1965 Tex. Gen. Laws 370. The purpose of the enactment, as its name suggests, was and is to preserve and conserve the soil and related resources of the state for the control and prevention of soil erosion, and thereby preserve natural resources, control floods, protect dams, reservoirs, and navigability of rivers and harbors, among others. See TEX. AGRIC. CODE ANN. § 201.001 (Vernon 1982 & Supp. 1999). Soil and water conservation districts are created on petition to the State Soil and Water Conservation Board by eligible voters in a given territory. See id. § 201.041 (Vernon 1982). These districts have the authority to undertake measures to conserve soil and prevent soil erosion, including the authority to adopt ordinances regulating land use on land within the district in the interest of conserving soil and soil resources and preventing and controlling soil erosion. See id. §§ 201.101-.108 (Vernon 1982 & Supp. 1999); §§ 201.121-.133 (Vernon 1982).

In our opinion, the GCWDA is not a soil and water conservation district created under chapter 201 of the Agriculture Code. Rather, as has been noted, that entity is created by special act of the legislature to focus on the development of a regional water quality plan for certain counties. See Tex. Att'y Gen. LO-98-124. Letter Advisory No. 150 provides a well reasoned and persuasive legal analysis in concluding that the term "soil and water conservation district," for purposes of article XVI, section 40, should be narrowly construed to apply only to those entities actually designated as such by the legislature. See Tex. Att'y Gen. LA-150 (1978) at 2. Opinions subsequent to Letter Advisory No. 150 have affirmed the specialized meaning of the term "soil and water conservation district." See, e.g., Tex. Att'y Gen. Op. No. JM-172 (1984) at 3 (river authorities do not constitute "soil and water conservation districts" within the meaning of article XVI, section 40); Tex. Att'y Gen. LO-90-18 (Red River County Water District is not a "state soil and water conservation district"). Additionally, the legislature has met in regular session ten times since 1978 without casting doubt on the conclusion of that opinion. While it is easy to discern the basis for confusion stemming from the two opinions, we are obliged to determine that the GCWDA is not a soil and water conservation district under the meaning of article XVI, section 40, and that consequently, a member of the GCWDA is not thereby excepted from the constitutional prohibition. To the extent that Letter Advisory No. 31 may be read to conclude otherwise, we confirm its earlier demise and expressly overrule the opinion.¹

You also contend that, even if the GCWDA is not a soil and water conservation district, its officers are not precluded from simultaneously holding the offices of municipal judge and GCWDA director, by virtue of the benefit proviso of article XVI, section 40. That proviso states:

It is further provided that a nonelective State officer may hold other nonelective offices under the State or the United States, if the other office is of benefit to the State of Texas or is required by the State or Federal law, and there is no conflict with the original office for which he receives salary or compensation.

TEX. CONST. art. XVI, § 40. This office addressed the benefit proviso in a 1996 opinion that considered whether an individual was permitted by article XVI, section 40, to simultaneously hold more than one municipal judgeship. See Tex. Att'y Gen. Op. No. DM-428 (1996). The opinion concluded that, while the legislature is the appropriate body to determine, as a general matter, whether, and under what circumstances, the holding of multiple offices is of benefit to the state, the resolution of the benefit question in a particular instance requires a factual determination which this office cannot undertake in the opinion process.² See id. at 3-4. Subsequently, in Letter Opinion No. 97-027, this office considered whether an individual could simultaneously hold the positions of assistant municipal judge and director of the Brazos River Authority. That opinion determined that "a member of the board of directors of the Brazos River Authority may not simultaneously serve as a municipal judge unless a court finds that the holding of the second office is 'of benefit to the State of Texas.'" Tex. Att'y Gen. LO-97-027, at 2.

In our view, the circumstances you describe present a similar dilemma. While we have no doubt that the individual in question provides a clear benefit to the state in both of his positions, it is not for us to make the determination that the holding of both offices satisfies the constitutional requirement. We conclude that, absent a legislative or other appropriate determination that a person who is a municipal judge benefits the state by holding a second office, an individual may not simultaneously serve as a municipal judge and as a director of the Gulf Coast Waste Disposal Authority. Attorney General Letter Advisory No. 31 (1973) is overruled.

SUMMARY

The Gulf Coast Waste Disposal Authority is not a soil and water conservation district under the provisions of article XVI, section 40, of the Texas Constitution. Whether the simultaneous holding of the offices of municipal judge and director of the Gulf Coast Waste Disposal Authority is of benefit to the State of Texas presents questions of fact which cannot be resolved in the opinion process. Attorney General Letter Advisory No. 31 (1973) is overruled.

Yours very truly,

JOHN CORNYN
Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General - Opinion Committee

¹ Letter Advisory No. 31 (1973) was incorrect in distinguishing between a "public office" and a "civil office"; see Tex. Att'y Gen. Op. No. M-480 (1986). The term "civil office" is used in the Texas Constitution in contrast to the term "military office." See also BLACK'S LAW DICTIONARY 224 (5th ed. 1979) (A civil office is "[a] non-military public office; one which pertains to the exercise of the powers or authority of government.").

² In response to Attorney General Opinion DM-428, the legislature authorized the holding of more than one municipal judgeship. See TEX. GOV'T CODE ANN. § 574.001(b) (Vernon Supp. 1999).