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
Untitled Texas Attorney General Opinion
Combined Opinion