Dear Mr. Carter: Compact Commissioner You have asked whether House Bill 1567 of the 63rd Legislature (Laws 1973, ch. 656, p. 1782), setting the term of office of the Red River Compact is constitutiona,l. Section 2 of that Act would amend $45.002 of the Water Code,. V.. T. C.S., to read:

“The commissioner first appointed under this Act holds office until February 1, 1975 and until his successor is appointed and qualified. Thereafter, or his successor holds office successive terms of four years from February I, 1975. ” Article 16, § 30, of the Texas Constitution provides that “[t]he duration of all offices not fixed by this Constitution sha.LL never exceed two years. . . .‘I 30a of Article 16 permits certain exceptions not applicable here, The Red River Compact is appointed by the Governor, with the advice and consent of the Senate:

“to represent this state in conferences with duly appointed of other affected st.ates and a United States representative appointed by the president, to negotiate a compact with each of the affected the use, control, and disposition and its tributaries.” ($45.001, Water Code, V. T. C. S., as amended by House Bill 1567, supra) *2 ,- He does not have the authority to bind the state as:

“[a]ny agreement which may be entered into between on behalf of this state and the of the other affected and the representative of the United States shalt be reduced to writing and submitted to the governor of No such agreement has any binding effect this State. upon this state or its legal representatives until it has been ratified by the Legislature of this state and approved by the governor, ratified by the legislatures of the other affected states, and consented to by the Congress of the United States. ” ($45.007, Water Code, V. T. C. S.)

We believe the Red Ri,ver Compact holds an office within the purview of Art,icle 16, $ 30, of the Texas Constitution. See generally Letter Advisory No. 63 (1973). Although he cannot bind the state to an agreement, he is the statutorily created exclu- sive conduit by which the state may negotiate a compact control and disposition and its tributaries.

Use, As such we are of the opinion that he exercises a portion of the sovereignty of the state.

An additional reason, although not in itself determinative, finding that the commissioner occupies an office under Article 16, $ 30, of the Constitution is the Legislature’s reference to his term of office, ($45.002, Water as amended by H. B. 1567, supra), and to the requirement Code, V.T.C.S., that he take the constitutional oath of office ($45. 003, Water Code, V. T. C.S.). See, Robertson v. Ellis County, 84 S. W. 1097 (Tex. Civ.App., 1905, no writ).

A memorandum submitted by your office suggested the possible relevancy (1971). We agree with the author of that of Attorney General Opinion M-814 memorandum that the reasoning of Attorney General Opinion M-814 is inappli- cable to the present quest.ion. That opinion was based on a surrender of state Here there has been no ratifi- sovereignty through ratification of a compact. As A,ttorney General Opinion M-814 is clearly inapplicable to the Red cation. *3 ‘ River Compact we need not consider the validity of the reasoning on which it is based.

It is therefore our opinion that the Red River Compact Commissioner is limited by the Constitution to a term of two years. The constitutional invalidity of the provision of the bill setting the commissioner’s at four yea.rs does not affect the remainder of the statute. Acts 1973, 63rd Leg., ch. 45, p. 69.

You have also asked whether House BiU 1567 may be considered as “passed” as required by item 14 on page III-156 of the General Appropriations Act fiscal years 1974 and 1975 which set the commissioner’s salary at $12,000 but provided that “[s]uch salary rate is made contingent upon passage of House Bill No. 1567.” 3 of House Bill 1567 amended 5 45.004, Water Code, V. T. C. S., which had establi.shed the commissioner’s salary as $6,600 per year. Under House Bill 1567 the commissioner’s salary is to be deter- mined by the Legislature in the appropriation bill. Our decision regarding 5 2 of the bill affects neither the passage of the bill nor the validity of § 3. Accord- ingly, it is our opinion that the requirement set out in the appropriations bill has been met and that the commissioner may receive a salary of $12,000 per year.

SUMMARY Legislation providing term of office the Red River Compact is unconsti- tutional; however, the remainder of the statute is not affected by the invalidity of the section establishing longer term, and the legi.slation may be considered “passed” where other legislation is contingent upon that fact.

I/ of Texas p” 762 *4 I . page 4 (H-165)

APPRO‘VED:

DAVID M. KENDALL,

Opinion Committee