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June 30, 1947
Hon. James F. Houlihan Opinion No. V-263
County Auditor
Orange County Re: Authority of Commis-
Orange, Texas sioners' Courts to
participate in the ad-
ministrative affairs
of Levee Improvement
Districts.
Dear Sir:
We refer to your letter of May 26, 1947, in
which you submit the following:
"This request is made solely for the
purpose of asking your opinion as to wheth-
er or not the Supervisors legally appointed
by the Commissioners* Court of Orange Coun-
ty, Texas, and duly qualified to serve, are
the governing or administrative body of said
district and charged with the supervision
and administration of its affairs, or wheth-
er the Commissioners' Court of Orange County,
Texas, or any member thereof, may dictate or
outlfne the manner that these said Supervisors
shall carry on, supervise, or administer the
affairs of the district, and whether said
Commissioners' Court of Orange County, Texas,
may compel said Supervisors of said district
to do or cause to be done such construction,
maintenance, or other work that in the opin-
ion of the Supervisors would not be for the
best interest of the district and which would
be contrary to the program outlined for the
district by them. Our specific questions are
as follows:
"1. Does the Commissioners' Court of
Orange County, Texas, have the authority to
compel the Supervisors of the district to
hire or discharge any employee of the dis-
trict whom the Supervisors of the District
have the legal right to hire or employ?
Hon. James F. Houlihan - Page 2 V-283
"2. Does the Commissioners' Court of
Orange County, Texas, have the authority to
order and compel the Supervisors of the dis-
trict to use the machinery, equipment, and
employees of the district, paid for, oper-
ated and oompensated for, out of funds re-
ceived from the levy of taxes for district
purposes, in doing work in or upon the roads
and bridges of Orange County, Texas, which
has no connection with the purposes for
which the district was created and the taxes
levied, assessed, and collected?
“3. Does the Commissioners' Court of
Orange County, Texas, have the authority to
order and compel the Supervisors of the dis-
trict to Pile monthly with said Court an i-
temized and detailed report of all receipts
and disbursements of said district, said re-
port to be in addition to the monthly report
now being made to the said Commissioners1
Court by the County Treasurer of Orange Coun-
ty, Texas, acting as the Ex-officio Treas-
urer of said district, which monthly report
has been made regularly by said Treasurer
and approved each month by said Commission-
ers' Court?
“4. Does the Commissioners' Court of
Orange County, Texas, have the authority to
remove from office any or all of the Super-
visors of said district for refusal to com-
ply with the demands or orders of said Com-
missioners' Court or any member thereof to
do or cause to be done any of the things
outlined in our questions outlined herein
and numbered 1 through 41"
Establishment of Levee Improvement (Conserva-
tion and Reclamation) Districts is authorized in Se&ion
59 of Article XVI of the Constitution of Texas. The per-
tinent parts of that seation are its sub-divisions (a)
and (b), which specify the purposes for which such dfs-
tricts may be utilized. Those sections read:
"(a) The conservation and development ol
all of the natural resources of this State in-
cluding the control, storing, preservation end
Hon. James F. Houlihan - Page 3 V-283
distribution of its storm and flood waters,
the waters of its rivers and streams,for ir-
rigation, power and all other useful purposes,
the reolamation and irrigation of its aria,
semi-arid and other lands needing irrigation,
the reclamation and drainage of its over-flowed
lands, and other lands needing drainage, the
conservation and development of its forests,
water and hydro-electric power, the navigation
of its inland and coastal waters, and the pres-
ervation and conservstion of all such natural
resources of the State are each and all hereby
declered public rights and duties; and the Leg-
islature shall pass all such laws as may be ap-
propriate thereto.
v(b) There may be created within the
State'of Texas,or the State may be divided in-
to, such number of conservation and reclamation
districts as may be determined to be essential
to the accomplishment of the purposes of this
amendment to the constitution,.which distriats
shall be governmental agenoies and bodies pol-
itic and corporate with such powers of govern-
ment and with the authority to exercise such
rights, privileges and functions concerning the
subject matter of this amendment as may be oon-
ferred by law."
Chapter 6 of Title 128 of Vernon's Civil Stat-
utes constitutes the enabling act which puts Section 59
of Article XVI of the Constitution in effect and dele-
gates to Commissioners' Courts the power to create such
districts.
Article 7972 in that Chapter reads:
*'Theremay be created within this State
conservation and reclamation districts to be-
known as Levee Improvement Districts, for the
purpose of constructing and maintaining levees
and other improvements on, along and contigu-
ous to rivers, creeks, and streams, for the pnr-
pose of reclaiming lands from overflow from
such streams, for the purpose of the control
and distribution of the waters and streams by
straightening and otherwise improving the same,
and for the proper drainage and other improve-
I .
Hon. James F. Houlihan - Page 4 V-283
ment of such lands, all as contemplated by Sec-
tion 59, Article 16, of the Constitution of
this State, for the conservation and develop-
ment of the natural resources of this State,
which said districts shall have and may exer-
cise all the rights, powers and privileges
given by this Act and in accordance with its
limitations and provisions.~l
Regardless of whether such districts are cre-
ated by direot Legislature Act or by Commissioners'
Courts under delegated power in accord with the provi-
sions of said Chapter 6 of Title 128, such districts
exist as separate corporate entities, as governmental
agencies, distinct and independent of the county in
which they are located, subject to legislative direc-
tion within the authority given by Section 59 of Arti-
cle XVI of the State Constitution.
Harris County Elood Control District vs. Mann,
135 Tex., 239, 140 S.W. (2d) 1098, is a proceeding in
the Supreme Court to compel the approval of bonds of the
district. That district was created by direct Act of
the Legislature. The Commissioners' Court was named in
the Act as the administrative agency of the district.
The syllabi in 135 Tex. 239-240 correctly states the
holding of that case, as follows:
"A oonservation reclamation district, duly
created by the Legislature, is a governmental
agency, separate and distinct within itself, and
the mere coincident that its boundaries are i-
dentical with those of the county in which it
is located does not make it dependent or in any-
wise connected with the corporate or political
entity of the county."
"A conservation or reclamation district
created by the Legislature being a govern-
mental agency, body politic, and corporate,
separate, distinct and independent from the
county in which it is located, no part of the
funds of said county ten be pledged or used to
pay the bonds of the conservation district,”
"A flood control district, created under
Article 16, Section 59, of the State Constitu-
tion, authorizing the creation of conservation
Hon. James F. Houlihan - Page 5 v-283
and reclamation districts, is a State govern-
mental agency, independent within itself, and
cannot be classed as a local and special law
within the meaning of Article 3, Section 56,
of the Constitution."
Ellis County Levee Improvement District was
created by the Commissioners1 Court of EllisCounty un-
der authority delegated by the Legislature to such
courts. The Supreme Court sustained such delegation
of legislative ower in Rutledge vs. State, 117 Tex.
342, 7 S.W. (2dP 1071, 292 S.W. 164. In that regard
the Court said:
" . . . There runs, therefore, through the
statutes and the constitutional provision, the
general purpose to provide'some method of re-
claiming lands from overflows'or overflow con-
ditions. Since the creation of districts to
accomplish this purpose is thus authorized by
the State Oonstitution, it follows that the'
districts to be created must be brought into
existence oonsistent with the law of due pro-
cess as declared in both the State and Federal
Constitutions. Since the districts authorized
are local imnrovement districts. it follows
that they must be created either by direct act
of the Legislature, by which that body selects
the territory and spreads the burdenof taxa-
tion. or~by some legislative agency, such as
the Commissioners Court: and if by the latter
method, then only after notice, hearing, and
determination of benefits and therefore of
boundaries." (Emphasis added)
It is elementary that the authority and power
of Commissioners' Courts is limited to such as is given
by the Constitution or lawfully delegated to such courts
by the Legislature. Orange County Conservation and Re-
clamation District having been created by the Commission-
ers' Court of Orange County by authority of such dele-
gated power contained in Chapter 6 of Title 128 of Ver-
non's Civil Statutes, its authority concerning that dis-
trict is confined to the power delegated to such Courts
as contained in that law. Article 7998 of said Statutes
authorized Commissionerst Courts to appoint District Su-
pervisors of such districts, who shall subscribe to an
oath of office and enter into bond payable to such dis-
Hon. James F. Houlihan - Page 6 v-283
tTiCt. Their terms of office are fixed at two years,
and until their SUCCeSSOTS are appointed and qualified,
"unless sooner removed by a majority vote of the court
of jurisdiction.n Upon the qualification of such Dis-
trict Supervisors, they become the sole administrative
agency of such districts and all of the administrative
authority of the CommissioneTs',Court in that regard
comes to an end, subject only to its power to remove
such Supervisors. Chapter 6, Title 128, V. C. S.
Article 7989 of Vernon's Civil,Statute pro-
vides that the District Supervisors "shall elect a sec-
retary . . . and an engineer and such other employees
OT assistants as may from time to time be found neces-
sary to the necessary completion of the work and busi-
ness of the district."
The District Supervisors of Orange County
Conservation and Reclamation District'are to be offi-
cers qualified as provided by law; they hold office
for two years, and until their successors are appointed
and qualified; "unless sooner removed by a majority
vote of the court of jurisdiction." (Emphasis added).
The auoted underscored language merely means that such
District Supervisors may bg &moved for just and lawful
cause, and not as an arbitrary act, as Would be the
case when such removal is based on refusal of such Su-
pervisors to do unlawful things demanded of them.
In Ridgeway vs. Oity of FOTt Worth, 243 S.W.
740, (Error dismissed), the court said:
"The ordinance referred to cannot, we
think, be applied in the case of a removal
of the corporation counsel, under section 30,
Chapter 11, of the charter. The expression
in the charter provision just referred to
that the commissioners by majority vote for
the causesspecified may remove the corpor-
ation counsel "at their-discretion" should
not be given the effect of emoowerina the com-
mission&s, even for the causes speczfied, of
removing the corporation counsel at their un-
controlled will, as may be done under the or-
dinance in case of appointees other than cor-
poration counsel. The term "discretion" as
used means something more than this. It must
mean a legal discretion exercised in good
.
-.
Hon. James F. Houlihan - Page 7 V-283
faith, and not an arbitrary abuse of discretion.
See 18 R . C . L ., . 26, ~39.
The uses to which the property and funds of
such districts may be applied are specified in Section
59 of Article XVI of the Constitution, and Article
7972 of Vernon's Civil Statutes, which are copied in
this opinion. ,It is also provided in Article 8013 that
money derived from taxation for such district purposes
"shall be used for the maintenance, upkeep, repairs
,and additions to the levees and other improvements in
the district and for no other purposes except as herein
otherwise provided."
There is no law which authorizes the Commis-
sioners' Court of Orange County to require Conservation
and Reclamation District Supervisors to file itemized,
detailed monthly reports with the Commissioners' Court,
of receipts and disbursements of funds of the district.
The County Treasurer of the County is made treasurer of
such dfStTiCt and custodian of its funds. (Article
8019). That officer is required to make reports to the
Commissioners' Court. Art. 8020, V. C. S.
Me are of the opinion that the Commissioners1
Court of Orange County is not authorized to compel the
District Supervisors of Orange County Conservation and
Reclamation District to hire or discharge employees of
said district; or require the use of funds or property
of said district upon the roads and bridges in Orange
County; or require the District Supervisors of said
district to make monthly reports of receipt and dis-
bursements of funds of said district; or remove the
District Supervisors of said district except for some
lawful cause.
The Commissioners' Court of Orange County
is not authorized to compel the District Super-
visors of Orange County Conservation and Re-
clamation District to hire or discharge employ-
ees of such district; or use machinery, equip-
ment, and employees of the district upon the
roads and bridges of Orange County which have
no connection with the purposes of such dis-
trict; or compel such Supervisors to file mon-
_, f -
Hon. James F. Houlihan - Page 8 V-283
thly reports to such Court; or remove any such
Supervisor from office ekcept for just and law-
ful cause.
Yours very truly,
ATTORNEY GENERAL OF TEXAS
By /s/ 'A,T, Williams
W, T, Williams
Assistant
APPROVED
2LdJ
ATTORNEY GENERAL
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