The opinion
The Honorable Joe D. Carter, Chairman Opinion No. H- 165
Texas Water Rights Commission
P. 0. Box 13207 Re: The constitutionality
Austin, Texas 78711 of Legislation setting
a four-year term of
office for the Red River
Dear Mr. Carter: Compact Commissioner
You have asked whether House Bill 1567 of the 63rd Legislature (Laws
1973, ch. 656, p. 1782), setting the term of office of the Red River Compact
Commissioner, is constitutiona,l. Section 2 of that Act would amend $45.002
of the Water Code,. V.. T. C.S., to read:
“The commissioner first appointed under this
Act holds office until February 1, 1975 and until his
successor is appointed and qualified. Thereafter,
the commissioner or his successor holds office for
successive terms of four years from February I, 1975. ”
Article 16, § 30, of the Texas Constitution provides that “[t]he duration
of all offices not fixed by this Constitution sha.LL never exceed two years. . . .‘I
Section 30a of Article 16 permits certain exceptions not applicable here,
The Red River Compact Commissioner is appointed by the Governor,
with the advice and consent of the Senate:
“to represent this state in conferences with duly
appointed compact commissioners of other affected
st.ates and a United States representative appointed
by the president, to negotiate a compact with each of
the affected states respecting the use, control, and
disposition of the water of the Red River and its
tributaries.” ($45.001, Water Code, V. T. C. S., as
amended by House Bill 1567, supra)
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The Honorable Joe D. Carter, page 2 (H-165)
He does not have the authority to bind the state as:
“[a]ny agreement which may be entered into between
the commissioner on behalf of this state and the
compact commissioners of the other affected states
and the representative of the United States shalt be
reduced to writing and submitted to the governor of
this State. No such agreement has any binding effect
upon this state or its legal representatives until it
has been ratified by the Legislature of this state and
approved by the governor, ratified by the legislatures
of the other affected states, and consented to by the
Congress of the United States. ” ($45.007, Water Code,
V. T. C. S.)
We believe the Red Ri,ver Compact Commissioner holds an office
within the purview of Art,icle 16, $ 30, of the Texas Constitution. See
generally Attorney General Letter Advisory No. 63 (1973). Although he
cannot bind the state to an agreement, he is the statutorily created exclu-
sive conduit by which the state may negotiate a compact respecting the
Use, control and disposition of the water of the Red River and its tributaries.
As such we are of the opinion that he exercises a portion of the sovereignty
of the state.
An additional reason, although not in itself determinative, for finding
that the commissioner occupies an office under Article 16, $ 30, of the
Constitution is the Legislature’s reference to his term of office, ($45.002, Water
Code, V.T.C.S., as amended by H. B. 1567, supra), and to the requirement
that he take the constitutional oath of office ($45. 003, Water Code, V. T. C.S.).
See, Robertson v. Ellis County, 84 S. W. 1097 (Tex. Civ.App., 1905, no writ).
A memorandum submitted by your office suggested the possible relevancy
of Attorney General Opinion M-814 (1971). We agree with the author of that
memorandum that the reasoning of Attorney General Opinion M-814 is inappli-
cable to the present quest.ion. That opinion was based on a surrender of state
sovereignty through ratification of a compact. Here there has been no ratifi-
cation. As A,ttorney General Opinion M-814 is clearly inapplicable to the Red
p. 761
. ‘
.
The Honorable Joe D. Carter, page 3 (H-165)
River Compact Commissioner, we need not consider the validity of the
reasoning on which it is based.
It is therefore our opinion that the Red River Compact Commissioner
is limited by the Constitution to a term of two years. The constitutional
invalidity of the provision of the bill setting the commissioner’s term of
office at four yea.rs does not affect the remainder of the statute. Acts 1973,
63rd Leg., ch. 45, p. 69.
You have also asked whether House BiU 1567 may be considered as
“passed” as required by item 14 on page III-156 of the General Appropriations
Act for fiscal years 1974 and 1975 which set the commissioner’s salary at
$12,000 but provided that “[s]uch salary rate is made contingent upon passage
of House Bill No. 1567.” Section 3 of House Bill 1567 amended 5 45.004, Water
Code, V. T. C. S., which had establi.shed the commissioner’s salary as $6,600
per year. Under House Bill 1567 the commissioner’s salary is to be deter-
mined by the Legislature in the appropriation bill. Our decision regarding 52
of the bill affects neither the passage of the bill nor the validity of § 3. Accord-
ingly, it is our opinion that the requirement set out in the appropriations bill
has been met and that the commissioner may receive a salary of $12,000 per
year.
SUMMARY
Legislation providing a four-year term of office
for the Red River Compact Commissioner is unconsti-
tutional; however, the remainder of the statute is not
affected by the invalidity of the section establishing the
longer term, and the legi.slation may be considered
“passed” where other legislation is contingent upon
that fact.
I/ Attorney General of Texas
p” 762
I .
. .
The Honorable Joe D. Carter, page 4 (H-165)
APPRO‘VED:
DAVID M. KENDALL, Chairman
Opinion Committee
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