### ATTORNEY GENERAL OF 

### TEXAS GREG ABBOTT

March 13,2006

Mr. E.G. Rod Pittman Chair, Texas Water Development Board Post Office Box 1323 1 Austin, Texas 7871 l-323 1 Opinion No. GA-04 11 Re: Possible conflict between two versions of sections 16.341 and 17.923 ofthe Water Code, as amended by House Bill 467 and Senate Bill 425, both adopted during the Seventy-ninth Legislature (RQ-0394-GA)
Dear Mr. Pittman: The Texas Water Development Board (the “Board”) asks us to resolve perceived conflicts between two versions of section 16.341 of the Water Code, pertaining to water supply and sewer services in economically distressed areas, and section 17.923 of the same code, which concerns financial assistance to economically distressed counties for water supply and sewer services.’ The two statutes were amended twice during the Seventy-ninth Legislature, first by Senate Bill 425 on May 25,2005 and subsequently by House Bill 467 on May 27, 2005.2 The Board suggests that the bills amended sections 16.341 and 17.923 in different, inconsistent ways and asks which version of these statutes state agencies and political subdivisions should follow. See Request Letter, supra note 1,at 1.Water Code chapter 16, subchapter J, for which section 16.341 defines terms, and chapter 17, subchapter K, ofwhich section 17.923 is apart, were adopted together in 1989 aspart ofalarge bill intended to provide for the improvement of water supply and sewer systems in the border colonias and other economically distressed areas in border counties. See TEX. WATER CODE ANN. $5 16.341-.356 (Vernon 2000 & Supp. 2005); id. $5 17.921-.936.3 A reading of chapter 16, subchapter J and chapter 17, subchapter K suggests that the two are intertwined. Section 16.343(a)

‘SeeLetter from J. Kevin Ward, Executive Administrator, on behalf ofE.G. Rod Pittman, Chair, Texas Water Development Board, to Honorable Greg Abbott, Attorney General of Texas (Sept. 14,2005) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter].

*SeeAct ofMay 25,2005,79th Leg., R.S., ch. 708, $4 15, 16,2005 Tex. Gen. Laws 1728-29 1724, (Senate Bill 425); Act of May 27,2005,79th Leg., R.S., ch. 927, $3 2, 15,2005 Tex. Gen. Laws 3166,3 166-67, 3171(House Bill 467).

‘

Adoptedby Act ofMay28, 1989,71stLeg., R.S., ch. 624, $92.13, .21, 1989 Tex. Gen. Laws2063,2067-72, 2078-82.Mr. E.G. Rod Pittman - Page 2 (GA-04 11)

requires the Board to adopt model rules to assure that water supply and sewer services inresidential areas ofpolitical subdivisions meet minimum standards for safety and sanitation. See id. $16.343(a) (Vernon Supp. 2005). Section 17.922 permits the Board to provide financial assistance to acounty to construct, acquire, orimprove water supply and sewer services, but only ifthe county has adopted the Board’s model rules, promulgated under section 16.343(a). See id.fj 17.922(a); id. 0 17.921(3) (defining “political subdivision”); id. 6 17.921(6) (defining “economically distressed areas account”); id. § 16.350(a) (Vernon 2000) (requiring acounty or municipality to adopt the Board’s model rules toparticipate inthe financial assistance program). Section 16.345(a) authorizes acounty to participate in the financial assistance program established under chapter 17, subchapter K. See id. 0 16.345(a). Acounty that receives financial assistance under section 17.922 may use the money to “construct, contract for construction, operate or contract” for the operation of water supply or sewer services or facilities. See id. 6 16.355. I. General Principles Under the Code Construction Act, if the same session of the legislature amends the same statute multiple times, each amendment without reference tothe other, we typically must harmonize the amendments “ifpossible, so that effect may be given to each.” See TEX.GOV’T CODEANN. $ 311.025(b) (Vernon 2005). “Ifthe amendments are irreconcilable,” however, the later enacted amendment prevails. Id. 0311.025(a)-(b). In determining astatute’s date of enactment, “the date of enactment isthe date on which the last legislative vote is taken on the bill enacting the statute.” Id. 6 311.025(d); see also id. 5 311.025(e) (providing for cases in which the journals or other legislative records fail to disclose relative dates of enactment). Consequently, to the extent the sections are in irreconcilable conflict, the later enacted provisions-those adopted on May 27,2005 by the adoption ofHouse Bill 467-generally prevail. See id. 9311.025(a)-(b). Mere difference does not constitute an irreconcilable conflict. See Garcia v. State, 669 S.W.2d 169, 171 (Tex. App.-Dallas 1984, pet. ref d); Tex. Att’y Gen. Op. No. GA-0369 (2005) at4. “Irreconcilable conflict involves adirect conflict such that ‘itisimpossible to comply with both provisions at the same time.“’ Tex. Att’y Gen. Op. No. GA-0369 (2005) at 4 (quoting Tex. Att’y Gen. LO-98-124, at4). II. Water Code Section 16.341(l), Definiw the Term “Affected County” We consider first the amendments to section 16.341 ‘sdefinition of “affected county.” Many provisions in chapter 16, subchapter Japply to apolitical subdivision, which is defined to include an affected county. See TEX.WATERCODEANN. 6 16.341(3) (Vernon Supp. 2005).4 Thus, the definition of“affected county” in section 16.34 1is important in restricting the class ofcounties that can participate in the program established by chapter 16, subchapter J.

4See,e.g.,TEX.WATERCODEANN.$16.343(a) (VernonSupp.2005)(requiring theBoardtoadoptmodelrules to assure that minimum safety and sanitation standards are met “in residential areas of political subdivisions”); id. $ 16.345(a) (Vernon 2000) (authorizing apolitical subdivision to participate in aprogram under chapter 17, subchapter K); id. 8 16.347(b) (authorizing a political subdivision that has applied for financial assistance under chapter 17, subchapter K to “impose a distressed areas water financing fee”).Mr. E.G. Rod Pittman - Page 3 (GA-041 1)

Prior to its amendment in 2005, the definition ofthe term “affected county” was limited to counties (1) with below average per capita income and above average unemployment or (2) that are adjacent to the international border.5 Senate Bill 425 amended the definition of “affected county” to enlarge the category of counties to include certain counties located within 100 miles of an international border:

(1) “Affected county” means acounty: (A) that has a per capita income that averaged 25 percent below the state average forthe most recent three consecutive years for which statistics are available and anunemployment rate that averaged 25 percent above the state average for the most recent three consecutive years for which statistics are available; [or] (B) that is adjacent to an international border; or (C) that is located in whole or inpart within 100 miles ofan international border and contains the majority of the area of a municipality with apopulation ofmore than 250,000. Act ofMay 25,2005,79th Leg., R.S., ch. 708,s 15,2005 Tex. Gen. Laws 1724,1728-29 (Senate Bill 425, now codz?ed at Water Code section 16.341(l)) (strikeout indicates deleted language; emphasis indicates new language). House Bill 467 also amended the definition of“affected county,” but did so in part by deleting all geographic criteria:

(1) “Affected county” means acounty[: [f243] that has an economically distressed area which has a median household income that is not greater than 75percent ofthe

. . median state household income. [[

Act ofMay 27,2005,79th Leg., R.S., ch. 927,s 2,2005 Tex. Gen. Laws 3166,3 166-67 (House Bill 467, now codified atWater Code section 16.341( 1))(strikeout indicates deleted language; emphasis indicates new language). Water Code section 17.92 1defines theterm “economically distressed area” used in House Bill 467 without reference to the area’s geographic location:

‘See Act ofMay 28, 1989,71st Leg., R.S., ch. 624, 92.13, 1989 Tex. Gen. Laws 2063,2067.Mr. E.G. Rod Pittman - Page 4 (GA-041 1)

(1) “Economically distressed area” means an area in which: (A) water supply or sewer services are inadequate to meet minimal needs ofresidential users as defined by [Board] rules; (B) financial resources areinadequate toprovide water supply or sewer services that will satisfy those needs; and (C) anestablished residential subdivision was located onJune 1,2005, as determined by the [Board]. TEX.WATER CODEANN. 8 17.921(l) (Vernon Supp. 2005); see also id. 6 16.341(2) (defining “economically distressed area” tohave the meaning section 17.92 1assigns); id. $17.001(l) (Vernon 2000) (defining “Board”). The two versions ofsection 16.34 1‘sdefinition ofthe phrase “affected county” differ inthree respects. First, Senate Bill 425 retains the economic requirement from the pre-2005 definition, so that an affected county has “aper capita income that averaged 25 percent below the state average *
. .and an unemployment rate that averaged 25 percent above the state average . . . .” Act ofMay 25,2005,79th Leg., RX, ch. 708,s 15,2005 Tex. Gen. Laws 1724,1728-29 (Senate Bill 425, ylow codified at Water Code section 16.341(1)(A)). House Bill 467, on the other hand, changes the economic requirement to a county with “an economically distressed area [as defined by section 17.92l] which has amedian household income that isnot greater than 75percent ofthe median state household income.” Act ofMay 27,2005,79th Leg., R.S., ch. 927,s 2,2005 Tex. Gen. Laws 3166, 3166-67 (House Bill 467, lzowcodified atWater Code section 16.34 l(1)). Second, House Bill 467 eliminates the requirement that a county’s unemployment rate be ascertained. See id. And third, Senate Bill 425 includes counties adjacent to aninternational border and certain counties within 100 miles ofan international border without regard to economic and unemployment factors. See Act of May 25, 2005,79th Leg., R.S., ch. 708, $ 15,2005 Tex. Gen. Laws 1724, 1729 (Senate Bill 425, ylowcodzjied at Water Code section 16.341(l)(B)-(C)). By contrast, House Bill 467 requires an analysis ofeconomic factors with respect to all counties. See Act ofMay 27,2005,79th Leg., R.S., ch. 927, 62,2005 Tex, Gen. Laws 3166,3 166-67 (House Bill 467, y2owcodzjied at Water Code section 16.341(l)). We believe the two versions of section 16.341’s definition of affected county are in irreconcilable conflict. The required economic analyses of income-“a per capita income that averaged 25 percent below the state average” as compared to “a median household income that is not greater than 75 percent of the median state household income”-use different figures in their calculations: per capita income as opposed to household income, and the state average as opposed tothe median state household income. Moreover, one definition requires that the unemployment rate be factored in, while the other does not. And with respect tothe class ofcounties that are authorized to receive financial assistance for water supply and sewer services, a county that is (1) adjacent to an international border or (2) located within 100miles of such aborder and containing the majority of the area of amunicipality with apopulation greater than 250,000 automatically qualifies as anMr. E.G. Rod Pittman - Page 5 (GA-04 11)

affected county without an analysis ofeconomic factors under Senate Bill 425 but not under House Bill 467.6 Because these two definitions cannot be harmonized, the later enacted provision prevails. See TEX.GOV’TCODEANN.$3 11.025(b) (Vernon 2005) (directing that alater enacted amendment prevails over irreconcilable amendments). The final legislative vote on Senate Bill 425 was taken on May 25,2005, while the final legislative vote on House Bill 467 was taken on May 27, 2005.7 Consequently, section 16.341( 1)as adopted by House Bill 467 on May 27, 2005, with no unemployment requirement and no geographic requirement, prevails over the amendment adopted on May 25, 2005 in Senate Bill 425. The prevailing version of section 16.341(l) defines the term
“affected county” as “a county that has an economically distressed area which has a median household income that is not greater than 75percent ofthe median state household income.” TEX. WATER CODE ANN.5 16.341(l) (Vernon Supp. 2005).’ Thus, counties located adjacent to orwithin 100 miles of an international border are not automatically qualified as an affected county. III. Water Code Section 17.923 The Board also asks about apparently inconsistent amendments to section 17.923 made by Senate Bill 425 and House Bill 467. See Request Letter, supra note 1,at 1. Prior to its amendment in 2005, section 17.923 limited the set of counties that could receive financial assistance under section 17.922 to counties that:



### (1) **
.have aper capita income that averaged 25percent below the state average forthe most recent three consecutive years for which statistics are available and an unemployment rate that averaged 25 percent above the state average for the most recent three consecutive years for which statistics are available; or (2) . . . [are] located adjacent to an international border.’

%2ompare Act ofMay 25200579th Leg., RX, ch. 708, 9 15,2005 Tex. Gen. Laws 1724, 1728-29 (Senate Bill 425, now codzj2ed at Water Code section 16.341(1)(B), (C)), with Act of May 27,2005, 79th Leg., R.S., ch. 927, $2,2005 Tex. Gem Laws 3166,3 166-67 (House Bill 467, now codiJied at Water Code section 16.341( 1)).

‘See Act of May 25,2005, 79th Leg., R.S., ch. 708, 9s 15, 16,2005 Tex. Gen. Laws 1724, 1728-29 (Senate Bill 425); Act of May 27,2005,79th Leg., R.S., ch. 927, $5 2, 15,2005 Tex. Gen. Laws 3166,3 166-67,3 171 (House Bill 467); see also TEX. GOV’T CODEANN. 9 311.025(d) (Vernon 2005) (providing that “the date of enactment is the date on which the last legislative vote is taken on the bill enacting the statute”).

‘ Amended by Act ofMay 27,2005,79th Leg., R.S., ch. 927, 82,2005 Tex. Gen. Laws 3166,3 166-67 (House Bill 467).

‘Act of May 28, 1989, 71st Leg., ch. R.S., 624, Q2.21, sec. 17.883, 2063, 1989 Tex. Gen. Laws 2078, renumbered by Act of June 6, 1990, 71st Leg., 6th C.S., ch. 12, 52(36), sec. 17.923, 1990 Tex. Gen. Laws 88, 90.Mr. E.G. Rod Pittman - Page 6 (GA-041 1)

Senate Bill 425 added a third consideration, thereby including counties that are “located in whole or in part within 100 miles of an international border and contain the majority of the area of a municipality with apopulation of more than 250,000.” Act of May 25,2005, 79th Leg., R.S., ch. 708, $ 16,2005 Tex. Gen. Laws 1724, 1729 (Senate Bill 425, y2owcodzjied at Water Code section 17.923). By contrast, House Bill 467 repealed section 17.923 in its entirety. See Act of May 27, 2005,79th Leg., R.S., ch. 927, 6 15,2005 Tex. Gen. Laws 3166, 3171 (House Bill 467 repealing section 17.923). We note that the publisher West Group construes House Bill 467 to have repealed section 17.923 asitexisted before the 2005 legislative session but not the additional, third consideration that Senate Bill 425 added. Thus, as published in the West supplement, “[t]o be eligible for financial assistance under this subchapter, acounty
. ..must be located in whole or in part within 100miles of an international border and contain the majority ofthe area of amunicipality with apopulation ofmore than 250,000.” TEX.WATERCODEANN. 8 17.923(3) (Vernon Supp. 2005). The electronic sources, Westlaw and LEXIS, publish section 17.923 in the same way.” (Westlaw and LEXIS current through the end ofthe 2005 second called session ofthe Seventy-ninth Legislature). In our opinion, the two bills are irreconcilable vis-a-vis section 17.923. The repealer was obviously intended to eliminate all requirements ofeligibility for financial assistance under section 17.922 and is therefore inconsistent with the requirements articulated in Senate Bill 425. In an analogous 1988 case, State v.Preslar, the Texas Supreme Court suggested that alater enacted statute that purports to repeal earlier enacted amendments tothe same statute in fact repeals the earlier amendments only if “all the circumstances surrounding” the two statutes’ adoption indicate that the legislature intended to repeal the statute. State v. Preslar, 751 S.W.2d 477, 482 (Tex. 1988). In Preslar the court determined on the basis of all the evidence that a later enacted repealer of Government Code section 74.053(b) did not, in fact, repeal conflicting earlier enacted amendments. See id. The court did not, in so finding, strictly follow the Code Construction Act’s injunction that the later enacted provision prevails over an irreconcilable, earlier enacted provision. See TEX.GOV’TCODE ANN.5311.025(a)-(b) (Vernon 2005). Following Preslar, we look not only at the relative dates of enactment of the amendment and the repealer but also atthe totality ofthe circumstances surrounding the adoption ofthe two provisions. The circumstances surrounding the adoption of Senate Bill 425 and House Bill 467, along with other evidence, indicate that the complete repeal of section 17.923 is most consistent with the legislature’s intent. It appears from written legislative materials that the enlargement of the class of counties eligible for financial assistance under chapter 17to counties “located
. . .within 100 miles of an international border and contain[ing] the majority ofthe area of amunicipality with a

“Without referring to the repeal of section 17.923 by House Bill 467, Westlaw notes that Senate Bill 425

“amended the section by adding subd. (3) and making other nonsubstantive changes.” LEXIS notes that House Bill 467 purported to repeal section 17.923 while Senate Bill 425 amended the same section. LEXIS continues: “The conflict between these provisions has not been reconciled.”Mr. E.G. Rod Pittman - Page 7 (GA-04 11)

population ofmore than 250,000”*1 was intended to include primarily Nueces County. See FISCAL NOTE, Tex. S.B. 425,79th Leg., R.S. (2005) (“Nueces County is currently the only county to which the specification applies
. . . ,“). House Bill 467 as enacted embodies, in large part, the remains of Senate Bill 964, which stalled in the House Calendars Committee.‘* Senate Bill 964, authored by Senator Lucia, was aproduct ofinterim meetings ofthe Texas Senate Committee on International Relations and Trade. See Lucia Letter, supra note 12, at 2; see also SENATE COMM. ON INTERNATIONAL RELATIONS ANDTRADE, INTERIM

REPORT 104-05 (Dec. 2004). The interim report indicates that sections 16.34 1and 17.923 required amendment inpart because counties that satisfied the existing required calculation of average per capita income and unemployment rates “varied year-by-year,” and the Board’s ability to identify “potential applicants” was therefore “hampered.” SENATE COMM. ON INTERNATIONAL RELATIONS AND TRADE,INTERIM REPORT105 (Dec. 2004). Changes inthe eligibility criteria were advisable also to “arriv[e] atgreater consistency between state and federal water/wastewater programs.” Id. The totality of the circumstances surrounding the two bills leads us to conclude that the repealer eliminated the whole ofsection 17.923, including subsection (3). Although House Bill 467 arguably did not repeal subsection (3), which was adopted by Senate Bill 425 and which would not take effect until September 1,2005, the bill repealed the introductory clause: “To be eligible for financial assistance under this subchapter, a county
. , . .“13 Without this sentence fragment, subsection (3) as adopted by Senate Bill 425 has no meaning. And given the historically close relationship between chapter 16, subchapter J and chapter 17, subchapter K, we believe it likely that the legislature intended the same eligibility standards to apply inboth contexts. For this reason, section 17.923 has been completely repealed; the version published by West Group and LEXIS is incorrect.

“See Act ofMay 25,2005,79th Leg., R.S., ch. 708, 5 16,2005 Tex. Gen. Laws 1724, 1729 (Senate Bill 425).

“See Letter from Honorable Eddie Lucia Jr., Chair, Committee on International Relations and Trade, Texas State Senate, to Nancy S.Fuller, Chair, Opinion Committee, Office ofthe Attorney General, at2 (Oct. 21,2005) (on file with the Opinion Committee) (recounting how “all the provisions of’ Senate Bill 964 were amended onto House Bill 467) [hereinafter Lucia Letter].

“Act of May 28, 1989, 71st Leg., R.S., ch. 624, § 2.21, sec. 17.883, 1989 Tex. Gen. Laws 2063, 2078, renumbered by Act of June 6, 1990, 71st Leg., 6th C.S., ch. 12, 4 2(36), sec. 17.923, 1990 Tex. Gen. Laws 88, 90, repealed by Act of May 27,2005,79th Leg., R.S., ch. 927, 0 15,2005 Tex. Gen. Laws 3166, 3171(House Bill 467).Mr. E.G. Rod Pittman - Page 8 (GA-04 11)

SUMMARY Water Code section 16.341( 1)asadopted on May 27,2005 by the passage of House Bill 467 prevails over the conflicting section 16.341(l) as adopted on May 25,2005 by the passage of Senate Bill 425. Water Code section 17.923 has been repealed in its entirety.

BARRY R. MCBEE First Assistant Attorney General ELLEN L. WITT Deputy Attorney General for Legal Counsel NANCY S. FULLER Chair, Opinion Committee Kymberly K. Oltrogge Assistant Attorney General, Opinion Committee