Untitled Texas Attorney General Opinion

THE ATTORNEY GENERAL OF TEXAS Amary 26, 1988 Honorable David II. Cain Opinion No. JM-847 Chairman Committee on Transportation Re: Whether legislator may Tsxas House of Representatives receive payment from a P. 0. Box 2910 state agency for serving Austin, Texas 78769 as special commissioner in condsmnation proceedings (RQ-1262) pear Representative Cain: you request advice on the following question: If a member of the legislature serves as a special commissioner in a condemnation P 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 commis- sioners to assess the damages of the owner of the propsrty bsing condemned. The judge fi 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 re- placement. 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 commis- sioners 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) 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 ele- ments of permanency and continuity which are leeential 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 lposition* 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. . . P 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 lleoted. 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) ,- compuuation for work done out-of-court, or for investigative Sue in excue of $500.1 P A lpeoial 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 commis- Becauee 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 compensa- tion 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