Untitled Texas Attorney General Opinion

Senator Joe Christie, Chairman Opinion No.M-814 State Senate Nominations Cotiittee State Capitol Re: Amending term of Austin, Texas 78711 office of Rio Grande Compact Commissioner from Dear Senator Christie: two to six years. Your request for our opinion concerning proposed legis- lation~ propounds one question: "Can the term of office of the Rio Grande Compact Commissioner lawfully be extended from two years to six years?" The Rio Grande Compact entered into between the States of Colorado, New Mexico and Texas, and the United States was ratified by Texas on March 18, 1938 (Acts 1939, 46th Leg., Spec. L., p. 531). Complementary Laws: U.S.-Public No. 96, May 31, 1939, Ch. 155, 53 Stat. 785; Colorado-Laws 1939, Ch. 146; New Mexico-Law 1939, Ch. 33, p. 59. The Compact is codified as Article 7466e-1, Vernon's Civil Statutes. Article XII of the Compact provides that the Texas Com- missioner shall be appointed by the Governor of Texas. The State Engineers for the other two States serve as respective Compact Commissioners. No limitation of term is provided in the original Compact. Section 2 of Article 7466e-1, Vernon's Civil Statutes, provides that the Texas Commissioner shall hold office for two years and until his successor is appointed and qualified. You have further advised us that the purpose of the pro- posed legislation is to give more continuity and stability to the Texas representative on the Rio Grande Compact for the best interests of the people of Texas, and that in the case of the Texas Commissioner, that he also administers an area of the Rio Grande in New Mexico above El Paso up to and including Elephant Butte. -3947- f. I Sen. Joe Christie, Chairman, page 2 (M-814) As precedent, in 1961, the Legislature of Texas amended the terms of office on the Sabine River Compact from two to six years. Acts 1961, 57th Leg., p. 31, Ch. 19, Sec. 1 and 2, and at p. 381, Ch. 192, Sec. 1, Art. 7466i. In that Com- pact, the basic document required amendment because the two year term was originally written into Article VII thereof. The basic question is: Does the Rio Grande Compact Commissioner for Texas come within the restriction of Article XVI, Section 30 of the Texas Constitution? It is our opinion that he does not, because of the legal effect of the Rio Grande Compact. Whenever, by the agreement of two or more concerned States with the consent of Congress, an interstate compact is created, it has the same effect as a treaty be- tween sovereign powers. Boundaries established by compact become binding upon all citizens of the signatory states. Poole v. Fleeger, 11 Pet. 185, 209 (1837); Rhode Island V. Massachusetts, 12 Pet. 657, 725 (1838). Private water rights become affected without judicial determinations on an interstate stream by compact. Hinderlider v. La Plats co., 304 U.S. 92, 104, 106 (1938). Congress has authority to compel compliance with such compact. Virginia v. West Virginia, 246 U.S. 565, 601 (1918). Final construction of a party state's Constitution rests in the U. S. Supreme Court. Dyer v. Sims, 341 U.S. 22 (1951). Comvactins states in effect surrender a portion of their sobereignty. Henderson v. Deleware River Joint Toll Bridge Comm., et al, 66 A 2d 843 (Sup. Ct. Pa. 1949); Deleware River and Bay Authority v. Carello, 222 A 2d 794 (Del. 1966): 34 Yale Law Journal 685, "The Compact Clause of the Constitution." Therefore, state constitu- tional restriction on terms of intrastate officials would not control terms of interstate officials. However, certain intrastate officers have been held not to be within the class covered by Section 30 of Article XVI, e.g. an attorney at law. Ex Parte Williams, 20 S.W. 580 (Tex. Crim. App. 1892); members of the Civil Judicial Council and presiding Judges of an Administrative District. Atty. Genl. Opin. Nos. M-305 (1968) and M-505 (1969). -3948- . . Sen. Joe Christie, Chairman, page 3 (M-814) The Rio Grande Compact Commissioner, representing Texas on an interstate stream, and further administering the stream within and without the State of Texas, is not the type of state official within the prohibition of Article XVI, Section 30, Texas Constitution, and therefore, the Texas Legislature may provide for his term in excess of two years. Article XVI, Section 30a. Article 7466e-1, Vernon's Civil Statutes, as well as Section 41.004, Title 3, Chapter 41 of S.B. 260 and H.B. 343, should be appropriately amended to accomplish this purpose. SUMMARY The term of office of the Texas Rio Grande Compact Commissioner may be extended beyond two years. Sections 30 and 30a of Article XVI, Texas Consti- tution, do not cover this type of office. Yours very truly, CRAWFORD C. MARTIN Attorney General of Texas First Assistant Prepared by Vince Taylor Assistant Attorney General APPROVED: OPINION COMMITTEE Kerns Taylor, Chairman W. E. Allen, Co-Chairman -3949- Sen . Joe Christie, Chairman, page 4. (M-814) Jim Swearingen Malcom Smith Roger Tyler J. C. Davis MEADE F. GRIFFIN Staff Legal Assistant ALFRED WALKER Executive Assistant -3950-