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DAN MORALES 

ATTORNEY GENERAL 

November 6, 1998 

The Honorable Sherry L. Robinson 

Criminal District Attorney 

Waller County 

836 Austin Street, Suite 105 

Hempstead, Texas 77445 

Opinion No. DM-484 

Re: Whether Water Code section 53.063(2), 

requiring a fresh-water-supply district supervisor 

to own land in the district, and a parallel provision 

in the Brookshire-Katy Drainage District’s 

enabling act violate the Equal Protection Clause 

of the United States Constitution, and related 

question (RQ-983) 

Dear Ms. Robinson: 

Water Code section 53.063, which sets out qualifications for election to a tiesh-water-supply 

district board of supervisors, precludes an individual who does not own land in the district from 

serving as a supervisor. Likewise, the Brookshire-Katy Drainage District’s enabling act forbids an 

individual who does not own land in the district to sit on the district’s governing board. We 

understand you to ask about the constitutionality ofthe land-ownership requirements in Water Code 

section 53.063 and in the Brookshire-Katy Drainage District’s enabling act. We conclude that a 

court would evaluate the land-ownership requirements using the rational-basis standard. We are 

unable to ultimately dispose ofthe issue you raise, however, because we are uncertain as to the state 

purpose the land-ownership requirements are intended to farther. Consequently, we cannot evaluate 

the legitimacy of the state purpose. In addition, whether the Brookshire-Katy Drainage District (the 

“drainage district”) has a special limited purpose and whether its activities disproportionately affect 

landowners-which questions must be answered to determine whether the land-ownership 

requirements rationally further a legitimate state purpose-require the resolution of fact questions, 

which cannot be answered in the opinion process. 

You also question whether the legislature has repealed Water Code section 53.063. We 

conclude that it has not. 

We begin our discussion by examining the drainage district’s enabling legislation and other 

statutes applicable to the drainage district, including Water Code section 53.063. The legislature 

created the drainage district in 1961 under Texas Constitution article XVI, section 59.’ The district’s 

enabling act establishes the district’s “solepurpose”: to reclaim and drain, as necessary, lands within 

‘See Act of May 4, 1961,57th Leg., R.S., ch. 203, 1961 Tex. Gen. Laws 402,402-05 
The Honorable Sherry L. Robinson - Page 2 (DM-4E4) 

the district.2 The legislature explicitly found that the achievement ofthis purpose would benefit “all 

of the lands and other property included within the District” and that all lands and property likewise 

would benefit from “the improvements that the District will purchase, construct, or otherwise 

acquire.“) To accomplish these public benefits: the enabling act endows the district generally with 

all of the powers and duties of a fresh-water-supply district created under article XVI, section 59 of 

the Texas Constitution.s Moreover, the enabling act specifically authorizes the drainage district to 

levy and collect taxes in accordance with general laws pertaining to fresh-water-supply districts.” 

The Brookshire-Katy Drainage District’s enabling act creates a board of five elected 

supervisors to manage and control the drainage district’ and establishes three eligibility 

requirements: 

1. A candidate for supervisor must be more than twenty-one years of 

age. 

2. A candidate for supervisor must own land subject to taxation in the 

drainage district. 

3. A candidate for supervisor must reside in the area of the drainage 

district from which he or she seeks election.* 

In addition to its enabling act, the drainage district is subject, among other things, to Water 

Code chapters 49 and 53. Chapter 49, containing provisions generally applicable to all general-law 

districts: authorizes the drainage district, among other things, to adopt “all necessary charges, fees, 

“See id. 5 2,196l Tex. Gen. Laws 402,403 

‘Id. $5 6,7, 1961 Tex. Gen. Laws 402,405. 

4See id. 4 6,196l Tex. Gen. Laws 402,405 

‘fd. $5 2,3,1961 Tex. Gen. Laws 402,403,404 

6See id. 5 5,196l Tex. Gen. Laws 402,405, as amended by Act of May 4,1967,6Oth Leg., R.S., ch. 220,s 1, 

1967 Tex. Gen. Laws 513,514. 

‘See id. § 3, 1961 Tex. Gen. Laws 402,404. 

?%e id. 

9Water Code chapter 49 applies to any district created under Texas Constitution article XVI, section 59, except 

for cetiain navigation districts, port authorities, or conservation and reclamation districts. Water Code 5 49.OOl(a)( 1). 

The drainage district is not excepted from chapter 49. 

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The Honorable Sherry L. Robinson - Page 3 (DM-484) 

or rentals, in addition to taxes, for providing or making available any district facility or service.“1° 

Chapter 53 pertains more particularly to fresh-water-supply districts.” Under chapter 53, a freshwater-supply district may “conserve, transport, and distribute fresh water from any sources for 

domestic and commercial purposes.“” Included within this broad authority are specific powers to 

prescribe the terms on which a district will furnish water; to fix the rate users will pay to purchase 

water from the district; and to regulate the distribution and use of water.13 Chapter 53 further 

authorizes a fresh-water-supply district to acquire and repair sanitary sewer systems using revenues 

from the sale ofbonds or other obligations, maintenance taxes, or operating revenues.14 Moreover, 

chapter 53 permits a district to issue bonds to secure indebtednessI and, once it has done so, to “levy 

taxes on all property in the district, whether real, personal, or mixed.“‘6 

Like the drainage district’s enabling act, Water Code section 53.063 establishes qualifications 

for supervisors of a fresh-water-supply district: 

1. He or she must be twenty-one years of age or older at the time of the 

election. 

2. He or she must own land within the district. 

3. He or she must reside in the district. 

Certainly, to the extent the drainage district’s enabling act sets eligibility standards that are 

inconsistent with those in section 53.063, the enabling act’s standards pre~ail.‘~ Weneednot resolve 

any inconsistencies here, though, because both section 3 ofthe enabling act and Water Code section 

“Id. 5 49.212. 

“See id. g 53.001(l). 

“Id. 5 53.101. 

“See id. 9 53.107(a). 

YSee id. $ 53.151(a); see also id. 5 49.107(a) (requiring maintenance-tax election). 

‘%e id. 5 53.171(a). 

161d. 5 53.188. 

“See Act of May 4, 1961,57th Leg., R.S., ch. 203, 5 2, 1961 Tex. Gen. Laws 402,403. 

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53.063(2) require a candidate for election as a supervisor to own land within the district.‘s The landownership requirement is the only requirement you question. 

As a preliminary matter, you question whether section 53.063 has been repealed; a repeal, 

you suggest, would moot your primary question: whether the land-ownership requirement violates 

federal equal protection mandates. We are uncertain as to how this would moot your primary 

question because the land-ownership requirement is also in the drainage district’s enabling act. 

Nevertheless, we will respond. 

We conclude that Water Code section 53.063 has not been repealed. The drainage district’s 

superintendent avers that the statute book’s pocket part lists section 53.0631, not section 53.063, as 

repealed. Nevertheless, the superintendent has been unable to find any record of section 53.0631, 

and he therefore inquires whether thepocketpart’s listingofsection 53.063 1 is a typographical error. 

Certainly, where the publisher has made an error in printing a statute, we should disregard it.19 But 

the pocket part is not in error. We have found no legislation repealing Water Code section 53.063. 

Moreover, we have found that the legislature enacted section 53.0631 in 1973,20 amended it in 

1975:’ and repealed it in 1989, ** Section 53.0631 set out several grounds for disqualifying a 

supervisor;23 its substance now is found in Water Code section 50.026F4 

We proceed to consider your primary question. You suggest that the land-ownership 

requirement violates the Equal Protection Clause of the Fourteenth Amendment to the United States 

Constitution by distinguishing among individuals who are otherwise eligible for election to the board 

of supervisors solely on the basis of whether the individuals own land in the district.25 The Equal 

Protection Clause prohibits a state from denying “to any person within its jurisdiction the equal 

‘*We note that the drainage district’s enabling act limits ballot access to an individual who owns land “subject 

to taxation” in the district, while Water Code section 53.063(2) limits ballot access to any individual owning land in the 

district, regardless of the land’s taxability. We do not need to resolve any inconsistency created by this difference in 

language to answer the questions you have posed. 

‘gSee 67 TEX. JUR. 30Statum 5 117, at 700 (1989). 

?See Act of May 24, 1973, 63d Leg., R.S., ch. 635, sec. 3, § 53.0631, 1973 Tex. Gen. Laws 1748, 1750-51. 

“‘See Act of May 14, 1975,64th Leg., R.S., ch. 248,§ 3,1975 Tex. Gen. Laws 600,602.03. 

‘2See Act of May 28, 1989,71st Leg., R.S., ch. 328,s 12,1989 Tex. Gen. Laws 1292, 1295, 

2’See Act of May 24, 1973,63d Leg., RX, ch. 635, sec. 3,s 53.0631,1973 Tex. Gen. Laws 1748, 1750-51. 

‘“See Act of May 28, 1989,71st Leg., R.S., ch. 328, 5 1, 1989 Tex. Gen. Laws 1291, 1292-93 

25See .&be1 v. Williams, 457 U.S. 55,60 (1982) 

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protection of the laws,“26 but it does not absolutely forbid all legislative classitications.27 Rather, a 

legislative classification must either rationally serve a legitimate state purposeZS or, if the 

classification infringes a fundamental right or creates an inherently suspect classification, serve a 

compelling state interest.29 

A court would scrutinize the land-ownership requirement you question using the rationality 

standard. Because candidacy is not a fundamental right, 3o this restriction on ballot access is not 

entitled to heightened scrutiny. In addition, neither landowners nor non-landowners ever have been 

held to be a suspect class of individuals. 

We are unable to predict, however, whether a court would determine that the land-ownership 

requirement serves a legitimate state interest. In the first place, we are uncertain as to the state 

interest served by the land-ownership requirement. “‘In determining whether or not state law 

violates the Equal Protection Clause, a court must consider the facts and circumstances behind the 

law, the interests which the State claims to be protecting, and the interest of those who are 

disadvantaged by the classification.“‘” We looked in the statute’s history for evidence of the 

interests the legislature designed the statute to protect. We found that the legislature originally 

enacted the substance of section 53.063 in 1 919.32 At that time, ofcourse, some restrictions on ballot 

access may have been designed to exclude, on racial grounds, some people from governmental 

positions. 33 On the other hand, the legislature might have imposed the land-ownership requirement 

because it believed that landowners comprised the class that would be primarily affected by the 

activities of a fresh-water-supply district. In any event, the age of the enactment precludes us from 

ascertaining the legislature’s purpose, and no purpose has been proposed to us. Moreover, whether 

the land-ownership requirement rationally relates to the ostensible purpose is a question requiring 

fact determinations, which we are not equipped to resolve in the opinion process.‘4 In the second 

“U.S. CONST. amend. XIV, 5 1. 

“See Attorney General Opinion JM-289 (1984) at 2, 

28See id. at 2-3. 

‘?%e id. at 2. 

‘%‘ee Clements v. Fashing, 457 U.S. 957, 963 (1982) (Rehnquist, J.) (plurality opinion) (citing BuNock v. 

Cam-,405 U.S. 134, 143 (1972)). 

“Salyer Land Co. v. Tulare Lake Basin Water Storage Dist., 410 U.S. 719,725 (1973) (quoting Williams Y. 

Rhodes, 393 U.S. 23,30 (1968)). 

‘2See Act of July 19, 1919,36th Leg., 2d C.S., ch. 48, 5 15, 1919 Tex. Gen. Laws 107, 111 

“Cf Turner v. Fouche, 396 U.S. 346 (1970). 

‘4See,e.g.,AttomeyGeneralOpinionsDM-98(l992)at3;H-56(l973)at3;M-l87(1968)at3;0-29ll(l94O) 

(continued...) 

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The Honorable Sherry L. Robinson - Page 6 (DM-484) 

place, a court probably could not determine the constitutionality of the classification without 

determining whether the drainage district’s purpose is so limited, and the drainage district’s activities 

so disproportionately affect landowners, as to justify the restriction on ballot access. This 

determination, too, requires fact-based analyses for its resolution, and it is not, therefore, amenable 

to the opinion process.‘5 

The United States Supreme Court has upheld restrictions on the tmnchise where the 

governing body to be elected oversees a district with a specialized, narrow purpose, the activities of 

which the Court found to disproportionately affect landowners. In Salyer Land Company Y. Tulare 

Lake Basin Water Storage District, 36 for example, the Court concluded that a statute permitting only 

landowners to vote in water storage district general elections reasonably furthered a legitimate state 

purpose and did not, therefore, violate the Equal Protection Clause?’ Although the Court conceded 

that non-landowners had an interest in the water storage district’s activities, the Court did not deem 

that interest sufficient to overcome the presumption that the statute is reasonable.38 More 

importantly, the Court determined that, because of the water storage district’s “special limited 

purpose” and the fact that the district’s activities disproportionately affect landowners as a group, 

non-landowners were not entitled to a vote in the election of the district’s governing board.39 First, 

according to the Court, the water storage district exists primarily to acquire, store, and distribute 

water for farming in the Tulare Lake Basin. 40 The district’s “incidental” powers, such as acquiring 

and operating necessary works for the storage and distribution ofwater; generating and distributing 

hydroelectric power; and fixing charges for the use of the water, 4’ did not, apparently, expand the 

district’s purpose beyond what the Court called the district’s “special limited purpose.” Second, the 

Court found that the statutory scheme precludes economically burdening a non-landowner qua 

district resident; rather, “[a]11 of the costs of district projects are assessed against land in 

proportion to the benefits received.“42 

“(...continued) 

at 2. 

“See,e.g.,AttomeyGenera10pinionsDM-98(1992)at3;H-56(1973)at3;M-187(1968)at3;0-2911(1940) 

at2. 

‘6410 U.S. 719 (1973). 

3’See id. at 734-35 

‘?See id. at 732. 

‘?Yee id. at 728 

“See id. 

“See id. at 723-24. 

42Id. at 729. 

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Likewise, in Ball v. James43 the Court upheld an Arizona statute that limited the franchise 

in elections for directors of an agricultural improvement and power district to landowners.44 The 

Court concluded that the land-ownership requirement reasonably relates to its statutory obj ectives.45 

As in Salyer, the Ball decision hinges on the Court’s determination that the public entity at issue, 

the Salt River Project Agricultural Improvement and Power District, has a “peculiarly narrow 

function”: to store, deliver, and conserve water.46 Significantly, water is distributed according to 

land ownership. Q The district’s sale of electricity to subsidize its water operations is, the parties 

stipulated, incidental to this primary function4* In addition, although the district may condemn land, 

sell tax-exempt bonds, and levy taxes on real property, 49 the district’s actions, the Court said, 

disproportionately affect landowners. 5o The district could not, for example, levy an ad valorem tax 

or a sales tax to which all, landowners and non-landowners alike, would be subject;5* rather, “the 

voting landowners are the only residents of the District whose lands are subject to liens to secure 

District bonds. Only these landowners are subject to the acreage-based taxing power of the District, 

and voting landowners are the only residents who have ever committed capital to the District through 

stock assessments charged by the [District].“52 

On the other hand, the United States Supreme Court has struck down as unconstitutional 

statutes that deem non-landowners ineligible to serve in certain offices. In Turner v. Fouches3 the 

Court held invalid a Georgia law requiring that members of a county board of education be 

43451 U.S. 355 (1981) 

Y%e id. at 371 (plurality opinion); see also id. at 372 (Powell, J., concurring); accordAssociatedEnters., Inc. 

v. Toltec WatershedImp. Dist.,4lOU.S. 743,744(1973) (p er curiam) (upholding Wyoming statute that authorizes only 

landowners to vote to create water district; finding Wyoming watershed district “is a governmental unit of special or 

limited purpose whose activities have a disproportionate effect on landowners within the district.“). 

“See Ball v. James, 451 U.S. at 371. 

‘5See id. at 351 

47See id. at 361. 

48See id. at 368-69 

‘?%e id. at 360. 

“See id. at 370. 

“See id. at 366. 

=Vd. at 370, 

“396 U.S. 346 (1970). 

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freeholders. The Court said, “The State may not deny to some the privilege of holding 

public office that it extends to others on the basis of distinctions that violate federal constitutional 

guarantees.“55 While the Court often defers to lawmakers in determining whether a particular statute 

meets the rationality standard, it determined in Turner that “the Georgia free-holder requirement 

must fall even when measured by the traditional test for a denial of equal protection . .“56 The 

Court thus deemed insufficient Georgia’s argument in support of the freeholder requirement: that 

because the statute did not specify a minimum real-property holding, anyone who “aspires to county 

school-board membership ‘would be able to obtain a conveyance of the single square inch of land 

he would require to become a ‘freeholder.“‘s7 In short, the Court concluded that Georgia could not 

rationally presume that a citizen who did not own land would be an irresponsible member of a 

county board of education. ‘* Additionally, the Court would not permit the state to presume that a 

non-landowner lacks attachment to the community and its educational values.59 

Likewise, in Quinn v. Millsap60 the Court struck as violative of equal protection a Missouri 

law requiring an appointee to a particular office to own real property!’ The Missouri Constitution 

permitted the governments of the City of St. Louis and St. Louis County to reorganize ifthe city and 

county electorate approved a reorganization plan drafted by a “board of freeholders.” The State 

ofMissouri offered three rationales for the real-property requirement. 6’ First, the State claimed that 

a real-property owner knows “‘fust[]hand. the value of good schools, sewer systems[,J and the 

other problems and amenities ofurban life.“‘“4 Second, the State asserted that a real-property owner 

“See id. at 364. 

551d. at 362.63 

‘*Id. at 362. In Turner the Court considered whether a Georgia scheme for appointing members to a county 

board of education unconstitutionally discriminated against individuals on the basis of their race. See id. at 350. Racebased classifications generally are subject to stricter scmtiny than the rational-basis standard. See id. at 362. The Turner 

Court did not apply a heightened standard, nevertheless, because the scheme at issue did not even satisfy the lesser 

standard. See id. 

5’Id. at 363. 

“Id. at 363-64, 

“See id. at 364. 

60491 U.S. 95 (1989). 

6’See id. at 108 

Y%e id. at 96 

“See id. at 107 

wSee id. (quoting Brief for Appellees 41), 

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“‘has a tangible stake in the long[-]tenn future”’ of the area in which the owner lives.65 Third, the 

State argued that the land-ownership requirement was justified because the board of freeholders 

considers issues that may relate to land. 66 The Quinn Court concluded, however, that its decision 

in Turner disposed of the first two of the proffered justitications:67 

As to the first, the [Turner] Court explained that an ability to understand the 

issues concerning one’s community does not depend on ownership of real 

property. . The Court in Turner also squarely rejected appellees’ second 

argument by recognizing that persons can be attached to their community 

without owning real property.68 

Similarly, the Quinn Court concluded that Turner and its progeny disposed of the third proffered 

justification: “[Tlhe mere fact that the board of freeholders considers land-use issues cannot sufftce 

to sustain a land-ownership requirement in this case.“@ Furthermore, according to the Court, the 

effect of the board’s work would not be limited to landowners, but would extend to all citizens of 

the city and county. ‘O Consequently, the Court stated, the State of Missouri could not “entirely 

exclude from eligibility for appointment to this board” all individuals who do not own real 

property.” 

We believe a court evaluating the land-ownership requirements in Water Code section 

53.063(2) and the drainage district’s enabling act would have to consider whether the purpose ofthe 

drainage district is “sufficiently specialized and narrow and whether its activities bear on landowners 

so disproportionately as to distinguish” the drainage district from those public entities whose more 

general governmental functions warrant application of the Turner/Quinn analysis.” If a court 

determines that the drainage district does not serve a sufficiently narrow purpose and that the 

drainage district’s activities affect landowners and non-landowners proportionately, we believe it 

6sSee id. (quoting Brief for Appellees 41). 

%e id. at 108 

-Id. at 108 (quoting Turner, 396 U.S. at 363-64). 

69See id. at 108-09, 

‘“See id. at 109 

“See id. 

%ee Ba2!. 45 1 U.S. at 362. We found no cases applying the analysis enunciated in Salyer and Ball, voting 

rights cases, to a ballot-access situation like this. But we believe that a court evaluating the land-ownership requirement 

in Water Code section 53.063(2) and the district’s enabling act would have to consider their applicability. In Quinn, 

a ballot-access case, the Court hinted that the Salyer/Ba2l analysis might apply in an appropriate ballot-access case. See 

Quinn, 491 U.S. at 105. 

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would be likely to follow Turner and Quinn and conclude that the land-ownership requirements 

violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution 

because they do not rationally serve a legitimate state purpose. If, on the other hand, a court 

determines that the drainage district’s purpose is sufficiently narrow and the district’s activities 

disproportionately affect landowners, we believe the court would conclude, consistently with the 

Salyer Land Co/Ball cases, that the land-ownership requirements pass constitutional muster. We 

note, in this regard, that the United States Court ofAppeals for the Fifth Circuit has indicated that the 

land-ownership requirement in Water Code section 53.063’s sister statute pertaining to water control 

and improvement districts, Water Code section 5 1.072, may raise an equal-protection issue: “We 

are unable to say that [an] assertion of the unconstitutionality of section 5 1.072 of the . Water 

Code requiring that a candidate for water district director be a freeholder, is insubstantial . .“‘j 

Unfortunately for us, the Fifth Circuit did not resolve the question, and we have not found any other 

judicial decision considering the issue. 

‘3Fonseca Y. Hidalgo County Water Imp. Dist. No. 2,496 F.2d 109,112 (5th Cir. 1974). 

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SUMMARY 

Water Code section 53.063 has not been repealed. 

Ifthe requirements in Water Code section 53.063(2) and the enabling act 

for the Brookshire-Katy Drainage District prohibiting a non-landowner from 

holding a position on the drainage district’s governing board rationally serve 

a legitimate state purpose, a court would likely conclude that the 

requirements do not violate the Equal Protection Clause of the Fourteenth 

Amendment to the United States Constitution. 

DAN MORALES 

Attorney General of Texas 

JORGE VEGA 

First Assistant Attorney General 

SARAH J. SHIRLEY 

Chair, Opinion Committee 

Prepared by Kymberly K. Oltrogge 

Assistant Attorney General 

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