Case Information

*1 Ausmnr na. TEXAS May 12, 1948 Hon. C. H. Cavness Opinion No, V-569 State Auditor

Austin, Texas Re: Eligibility of eaployees

of various conservation and +eclamatlon districts to be members of the Bm- ployees Retirement Sjs- ten of Texas.

Dear Hr. Cavness:

Your request for an opinion on the above sub- ject is as follows:

'We shall greatly appreciate your 0 ln- ion as to whether the employees of each P separ- ately) of the following are eligible f6r mom- bersbip in,the Bmplojees Retirement System of Texas:

Bexar County Metropolitan Uater Dls- trlct

Brazoti River Conservation and Recla- mation District

Central Colorado Riier Authority Coma1 County WaterRecreational Dis- trict Ho. 1

Colorado'County Flood Control Ms- trlct

Dallas County Flood Control District Dallas County Park Cities Water Con-~ trol and Improvement District Ho.2 Fayette County Flood Control District ffuadalupe-Blanc0 River Authority Guadalupe River Authority Gulf Water Supply District Harris County Flood Control District Jackson County Flood Control District Lavaca County Flood ControL District Lower Colorado River Authority Lover Conch0 River Water and So11 Conservation Authority Lower Rio Grande Flood Control Dls- *2 Han, C. H, Cavness, page 2

Leon River Flood Control District Lower Heches Valley Authority Nueces River Conservation and Re- clamation Dlatrict Panhandle Water Conservation Anth- ority ority

Pease River Flood Control District Pease River Flood Control District Sabine-I’ieches Conservation District Sabine-I’ieches Conservation District San Jacinto River Consemotion and San Jacinto River Consemotion and Reclaution.Distrlot San Antonio Canal a& Conser- vancy Distrf ct Sulpllnzi Rlvep Conservation and Re- clamation Dlstriot Upper Colorado River Authority Upper kadalupe River Authorltj Upper Red River Flood Control and IrrigatLon District Vslleg Conservation and Reclamation District

Webb County Conservatkon and Recla- mation District, Artiole XVI, Section 59, Subdlvlsloh~ (a) and (b), Cormstltution of Texas, provide as follows”.

“Set, 59. (a) The oonservation and development of all of the natural resotirces of this State, Including the omtrol, stor- igg, preservation and dlstributlon of its storm and flood vaters, the waters~ of Its rivers and atream, fer irri&atlon, power and all other useful purposes, the reclau- tion and Irrigation of Its arid, seri-arid and other lands needing irrigatien, the Fe- clamatlon arid drainage of its over-Slowed lands, and other lands needing drainage, the conservation and development of Its forests, vater sad hydro-electric power, the navlga- tlon of Its Inland and coastal waters, and the presemation natural resoumes of the State are each and and conservation of all such all hereby declared public right8 and’duties; and the Legislature shall paas all such laws as mey be appropriate thereto,

‘(b) There may be oreated within the State of Texas, er the State may be divided *3 Into, such number of conservation aud reola- matlon districts as may be determined to be essential to the accomplishment of the pur- poses of thfs amendment to the constitution, which districts shall be governmental agen- cies and bodies politic and corporate with such powers of government and with the auth- ority to exercise such rights, privileges and functions concerning the subject matter of this amendment as may be conferred by law.’

Article 8194, V. C, S., reads as follows% “Conservation and reclamation districts may be created and organized in any manner that water improvement, drainage, or levee Improvement districts are authorized by the laws of this State to be created, and <or the several purposes therein provided,

The Vernon Law Book Compa has assembled In the last part of Chapter 8, Title 12 “i; , Vernon’s Anuotat- ed Civil Statutes and folloving &ticle 8$37f, under a heading entitled ‘Water Supply and Control the Acts of the Legislature and reclamation districts, creating the above listed &nservation

Authority for all of then ;:4~ from Article XVI, Section 59, Constitution of

, and the various Acts creating them borrow certain l.g.gge from this constitutional provision by reciting

. 0 a such district shall be and is hereby declare ed to be a ggvernmental agency and body politic and cor- porate o . 0 As the conservation and reolanation dls- tricts under scrutiny In this opinion are all~authorized by the same constitutional authority and au exanination of each of the separate Acts creating them discloses a similarity in language describing their legal entity and general powers, we shall consider all thirty-one districts collectively.

‘Drainage districts created under the provisions of Title 128, ch. 7, Art. 8097, V, A. C. B., enacted” under authority of Art.

XVI, Sec. 59(a), Constitution of Texas, are political subdivisions of the State of the same nature and stand upon exactly the same footing as counties or precincts, or any of the other political of the State.” Jones v. Jefferson County Drainage District, 139 S,W.(2d) 861, citing numerous cases for *4 the above statement.

“Irrigation districts, navigation districts, levee and improvement dis- tricts, and like political subdivisions created under Sec. 59(a), Art, XVI, Con- stitution of Texas, and statutes enact- ed thereunder carrying out the purposes of such constitutional provisions, are not classed with municipal corporations, but are held fo be political

of the State performing governmental func- tions, and standing upon the same footing as counties and other pol$tical subdlvl- sions established by law. Willacg Coun- ty Water Control and Improvement P)istrict Roe 1. vI Abendroth, 177 3,W.(2d) 936, 937, citing numerous cases.

Thr Au&is Court of Civil Appeals in Lower Colorado River Authorit v. Chemical Bank and Trust Company, 185 SsR,(2d) $4, laser affirmed by the Su- Loleer Colorado Author- preme Court, derrribed,the ity fn these tsrplst

"while designated and classiited as a governmental agency and body politic and corporate, the Authority’s functions and activities partake in large measure, the nature and characteristics within legIs* of a large Industrial lative restrictions, enterprise rather than of a strictly gova It has no power to ernmental function.

levy taxes, enact laws nor ordinances, a8 a city has: and its efficient functioning depends in large measure on the sound judgm ment and good business management of Its Board of Directors. They have large con- trol over the operation of its properties, and the Income to be derived therefrom, which constitute the only sopce of revenue to meet its obligations. D .

“Department” and “employee” as used In the En- ployees Retirement Act are defined In Section 1 thereof as f ollovst

“B. “Department’ shall mean any department, commission, institution or *5 Hon. C. H. Cavness, page 5

agency of the State Government.

“C. ‘Employee t &all mean any re- gularly appointed officer or employee in a department of the State who Is employ- ed on a basis or In a position normal y requiring not less than nine hundred t 900) hours per year, but shall not include mem- bers of the State Legislature or any in- cumbent of an office normally filled by vote of the people; nor persons on piece- work basis; nor operators of equipment or drivers of teams whose wages are lnclud- ed in rental rate paid the owners of said equipment or team; nor any person who is covered by the Teacher Retirement System of the State of Texas or any retirement system supported with State funds other than the Texas Employees Retirement Sys- tem. v o!al@lasls ours)

!i’he Lower Colorado Authority has beer held to be an agency of the State. L,C,R.A, vs M&raw, 83 S.W.(2d) 629 (19 5). L.C R.A. v. Chemical Bank and TPuat co., 190 S.W. 2dj 48 11945). And the employees 7 havebeen held State employee8 for of that body politic certain purposes. Hovever, notwithstanding the broad deflnltionfl lxi the &gloyeeg Retireme@ System Act of the words department and employee, we believe that the Act as a whole, this and similar agencies construing and their employees were not intended to be covered by the Retirement Act for the reasona that the 50th Legis- lature contemplated only those ‘employeea of the State” whose duties relate to state-wide activities vith no intervening corporate entityor body between the State In the case of conservation and re- and the employee, clamation districts the district is the employer much the same as counties are the employers of its employees and have control of their duties. The district con- trols the vorklng hours of its employees and la respon- sible for the compensation dub its employees.

The following quotation taken from Dlllman v. State, 125 P, 367, 378, Is appropriate in dravlng the State officers and officers distinction between strictly of political created,by the State, and is in line with the distinction we draw here between State employees vlthin the meaning of the Retirement Act and employees of the conservation and reclamation districts *6 named in your request? It may be said that a

'In general, State officer Is one whose duties and powers are coextensive with the state, while a county offloer is one whose dut- ies and powers are coextensive with the county * State officers are those whose duties concern the state at large, or the general public, although exercised within definite limits, and to whom are delegated the exerolae of a portion of the sovereign power of the state. They are In a general sense those whose duties and powers are coextensive with the state, or are not llmlted to any political aub- division of the state, and are thus dls- tlngulshed fram municipal officers strict- ly, whose rUnCtiOn8 relate exclusively to the particular municlpalitg, and from county, city, officers.n town, and school district

In former opinion No, O-6928 this offloe fol+ lowed the holding of the court In Uallaoy County water Control and Improvement District EJoa 1 v. Abendroth, SUN pra, and L, C. R. A, v, Chemical Dank and Trust Corpsny, supra, by declaring that the Lower Colorado River Author- ity employees were employees of a state agency ana poll* tics1 subdivision of the State and were within a statue tory exception to the Texas .Dnemployment Compensation Act. This exception excluded "service performed in the employ of this State, or any political subdivision there- of, or any lnstrumentallty of this State or its polltl- cal subdlvlslons,U

In discussing the effect of a member of the Legislature accepting employment with a River Authority tNs ofrlce In former opinion 180, O--6578 treated River Authority employment as employment by the State within the prohibition of Sec. 33) Art, XVI, Constitution of Texas, denying payment of compensation from the State Treasury to a person "who holds at the same time any other office or posfttlon of honor, trust oP profit, un- der this State. 0 D

In former Opinion 180. V-462 this ofrloe was of the opinion that a director of the Lower Iieches Valley Authority was a civil officer of this State and can serve at the same time as a director of Texas A, k M, *7 Ron. C. H. Cevness, page 7

College although he must do so without oompensatlon from the State for either office,

We adhere to these former opinions and point them out for the sake of avoiding any confusion with the reasoning and conclusion of this opinion, We distinguish employee" as used in between the definitions of "state these opinions and those who are within the meaning of the Employees Retirement Act.

We note here that from reading Lower Colorado River Authority v0 Chemical Bank and Trust Co., supra, the L. C, R, A, apparently has its own retirement sys- tem. In any event, the employees of this particular district would be precluded from membership in the sgs- tern afforded by H. B, 168, by reason of Section l.c., of Ii, B. 168 which defines 'employee". of the opinion that the

We are, therefore, employees of the conservation ana reclamation districts named in your request are not eligible POP membership in the Employees Retirement System of Texas,

The employees of the conservation and reclamation dlstrlots created by Acts of the Legislature codified under Chapter 8, Title 128, V, C, S,, are not eligible for membership in the Employees Retlre- ment System of Texas under the provisions of the present Act, Art. 6228a, V, CO 5,

Yours very truly, APPROVRD:

$i!i%iiQL