Could one person serve both as an Angelina and Neches River Authority director and a member of Lufkin's planning and zoning commission?

Texas AG Opinion JM-704: River Authority and Zoning Commission Offices

Plain-English summary

A state senator asked whether one person could serve both as a director of the Angelina and Neches River Authority and as a member of the Lufkin City Planning and Zoning Commission.

The Attorney General concluded that article XVI, section 40 of the Texas Constitution barred simultaneous service when the river-authority director had performed services carrying statutory compensation. That provision prohibited one person from holding more than one civil office of emolument at the same time.

The river-authority directorship remained an office of emolument even though the board reportedly had never paid its members. State law authorized up to $10 per day for approved service. Compensation attached to the office was enough to give the office that character, whether or not the incumbent accepted or received it. Whether a particular director had performed compensable services was a fact question.

The Lufkin planning and zoning position also was a civil office of emolument. The city paid $5 for each regular meeting, up to two meetings a month. Its members exercised public authority under the zoning statutes by making required reports and recommendations before the city could act. If Lufkin had also delegated the statutory power that made a three-fourths council vote necessary to override a denial recommendation, the commission exercised an even clearer sovereign function.

Currency note

This opinion was issued in 1987. 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

What was a civil office of emolument?

The opinion treated it as a public office exercising sovereign governmental functions with compensation attached to the position.

Did the river authority have to actually pay its directors?

No. The statutory right to compensation was an incident of the office. Nonpayment did not turn the position into an uncompensated office.

Why was the Lufkin commission position compensated?

The city code paid members $5 for each regular meeting, with a limit of two paid meetings per month. The opinion cited a case holding that $10 per meeting was sufficient emolument.

Why were planning and zoning commissioners public officers rather than employees?

They exercised statutory governmental functions for the public with substantial independence, including required recommendations and control over when the city could proceed with zoning action.

Was the dual-office bar automatic for every river-authority director?

The opinion made the result depend on whether the director performed services entitling the director to statutory compensation. That was a factual question.

Background and constitutional framework

Article XVI, section 40 prohibited holding two civil offices of emolument simultaneously, subject to exceptions not relevant to the request. Attorney General Opinion JM-594 had already classified an Angelina and Neches River Authority director as such an officer because the governing statute conferred official duties and compensation.

The opinion applied the office test from Aldine Independent School District v. Standley: whether the individual exercised a sovereign function for the public largely independently of others' control. Markwell v. Galveston County and Bastrop County v. Hearn supported treating compensation as attached to the office itself.

Articles 1011e and 1011f governed municipal zoning commissions. They required recommendations, hearings, and a final report before city action. Article 1011e also allowed a city to require a three-fourths council vote to override a commission recommendation denying a proposed zoning change.

Even if Lufkin had not delegated that stronger authority, the opinion found the commission's mandatory role sufficient for public-office status. It also cited Storm Bros., Inc. v. Town of Balcones Heights, which treated zoning commissioners as officers when considering defective appointments.

Citations and references

Statutory and constitutional authorities:

• Texas Constitution article XVI, section 40 (dual civil offices of emolument)
• Acts 1935, 44th Legislature, chapter 97, section 8 (river-authority director compensation)
• Articles 1011a through 1011j, V.T.C.S. (municipal zoning)
• Articles 1011e and 1011f, V.T.C.S. (zoning changes and commissions)

Cases:

• Aldine Independent School District v. Standley, 280 S.W.2d 578, 583 (Tex. 1955)
• Markwell v. Galveston County, 186 S.W.2d 273 (Tex. Civ. App.-Galveston 1945, writ ref'd)
• Bastrop County v. Hearn, 8 S.W. 302 (Tex. 1888)
• Willis v. Potts, 377 S.W.2d 622 (Tex. 1964)
• Dunbar v. Brazoria County, 224 S.W.2d 738 (Tex. Civ. App.-Galveston 1949, writ ref'd)
• Storm Bros., Inc. v. Town of Balcones Heights, 239 S.W.2d 842 (Tex. Civ. App.-El Paso 1950, writ ref'd n.r.e.)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0704
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1987/jm0704.pdf

Original opinion text

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

THE ATTORNEY GENERAL
OF TEXAS

May 20, 1987

Honorable Roy Blake
Chairman
Administration Committee
Texas State Senate
P. O. Box 12068
Austin, Texas 78711

Opinion No. JM-704

Re: Whether an individual may simultaneously serve as a director of a river authority and a member of a city planning and 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 office of emolument, except. . . . (Exceptions not applicable).

Attorney General Opinion JM-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, § 8, at 241.

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 compensation. Compensation attached to an office is an incident to the title to office. Markwell v. Galveston County, 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 generally 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 1011a through 1011j, V.T.C.S., the general zoning enabling act. See Attorney General Opinion JM-117 (1983); see also V.T.C.S. art. 1175(26). Article 1011f, 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.

(b) If a Zoning Commission is appointed, it shall recommend the boundaries of the various original districts and appropriate regulations to be enforced therein. Such 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 any public hearing required to be held by the Zoning Commission, 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 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. Civ. 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. City of 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 procedurally incorrect. Storm Bros., Inc. v. Town of Balcones Heights, 239 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.

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.

JIM MATTOX
Attorney General of Texas

JACK HIGHTOWER
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Susan L. Garrison
Assistant Attorney General