Lowther v. Fernandez

TIJERINA, Justice,

dissenting.

I respectfully dissent. In my view the City Public Service Board of the City of San Antonio is not a “political subdivision” of the State. At issue is an interpretation of section 11.22 of the Texas Education Code Annotated (Vernon 1972) providing in pertinent part, as follows:

No person shall be eligible for election to or serve on the board if he holds an office with the State of Texas or any political subdivision thereof, or holds employment with or receives any compensation for services from the State or any political subdivision thereof (except retirement benefits paid by the State of Texas or the Federal Government), or engages in organized public education activity.

Article 14.01 of the Election Code as amended and effective September 1, 1983, defines “Public Office” as any office created by or under authority of the laws of this state, that is filled by the voters. (Emphasis added). Does this amended statute now require all public officials serving a political subdivision of the State to be elected by the people? True, the City Public Service Board is a creature of the City of San Antonio ... but ... the fact remains that the City Public Service Board was created as an independent body, a self-governing body administered by a self-perpetuating *889 board of trustees re-appointing their successors in office. There is no statute which imposes upon the City Public Service Board or the trustees thereof any State duty nor do they perform any governmental function for the State. Willacy County Water Control and Improvement District No. 1 v. Abendroth, 142 Tex. 320 , 177 S.W.2d 936 (1944). In Abendroth , the Supreme Court stated:

Irrigation districts, navigation districts, levee and improvement districts, and like political subdivisions created under Section 59a of Article XVI of the Constitution, and statutes enacted thereunder carrying out the purposes of such constitutional provision, are not classed with municipal corporations, but are held to be political subdivisions of the State, performing governmental functions, and standing upon the same footing as counties and other political subdivisions established by law. [Citations omitted.]

Id. 177 S.W.2d at 937 . Thus, it would appear that a political subdivision is created only under the Constitution or by statutory law. The question that begs to be reconsidered was discussed by the dissent in Crownhill Homes, Inc. v. City of San Antonio, 433 S.W.2d 448, 481 (Tex.Civ.App.—Corpus Christi 1968, writ ref'd n.r. e.), as follows:

But there is general agreement that the distribution of water by a municipality to its inhabitants for domestic and commercial uses is a private or proprietary function which in its exercise is subject to the rules applicable to private corporations.

To be distinguished would be the City Water Board where the board members are all appointed by the city council of the City of San Antonio. But, in the instant case the City Public Service Board is administered by a board of trustee, independent of the city council and without having to comply with section 14.01 of the Election Code. The majority’s conclusion that an employee of the City Public Service Board is an employee of the City of San Antonio is again a matter that can be disputed for certainly the employees of City Public Service Board have not yet qualified for retirement benefits from the City of San Antonio. The source for payment of wages to city employees come from property taxes assessed by the city, whereas the employees of the City Public Service Board are paid from funds generated through the sales and services of utilities. Any constitutional or statutory provision which restricts the right to hold public office should be strictly construed against ineligibility. Willis v. Potts, 377 S.W.2d 622, 623 (Tex.1964).

I would affirm the judgment of the trial court.