THE ATITORNEY GENERAL 

February 12, 1974 

The Honorable Eugene T. Jenson 

County Attorney 

Chambers County 

Anahuac, Texas 77514 

Dear Mr. Jenson: 

Opinion No. H- 226 

Re: Constitutionality of Senate 

Bill 807, 63rd Leg., 1973, 

concerning qualification of 

members of governing 

boards of certain conservation and reclamation 

districts 

You have asked for an opinion of this office concerning the constitutionality 

of sections added tom the Water Code by Senate Bill 807 (Acts 1973, 63rd Leg., 

ch. 635, p. 1748) relating to the qualifications for membership on governing 

boards of certain conservation and reclamation districts created under Article 

3, g 52, and Article 16. 5 59, of the Texas Constitution. 

The bill contains four similarly worded parts to be codified respectively 

as $ $50.024, 51.0721, 53.0631, and 54.1021, in those chapters of the Water 

Code, V.T.C.S., which govern water control and improvement districts, fresh 

water supply districts and municipal utility districts. Our reference to subsections of these four new sections will be singular but is intended to cover all 

of them. 

On June 16, 1973, this office issued Letter Advisory No. 53 to Governor 

Briscoe concerning the constitutionality of subsection (a)(5)(B) of each section 

to be added by Senate Bill 807. 7hat subsection would render ineligible a person 

who “is or has been within the two years immediately preceding his election or 

appointment to the board: ” 

l’(B) a party to a contract with or along with a 

developer of property in the~district relating to the 

district or to property within the district, other than 

a contract limited solely to the purpose of purchasing 

p. 1051 
The Honorable Eugene T. Jenson, page 2 (H-226) 

or conveying real property in the district for the 

purpose of either establishing a permanent residence 

or establishing a commercial business within the 

district. ” 

In that opinion. we concluded that the quoted subsection would probably 

be held unconstitutional under 4 3 of Article 1 of the Constitution of the State 

of Texas and under the Fourteenth Amendment to the Constitution of the 

United States, which both guarantee equal protection under state law. 

Letter Advisory No. 53 limited our review of Senate Bill 807 to the 

specific subsection referred to us by the Governor and stated that it should 

not be understood as passing upon the constitutionality of any other provision. 

Your request inquires about the constitutionality of “all other sections of 

Senate Bill 807. ” 

In conducting such a review, we must keep in mind that courts will seek 

to uphold legislation, and will strike it down as unconstitutional only if there 

is no other reasonable alternative. Cameron County v. Wilson, 326 S. W. 2d 

162 (Tex. 1959). 

Subsection (b) of each section states: 

“Within 60 days after the governing board determines 

a relationship or employment which constitutes a disqualification under Subsection (a) of this section, it 

shall replace the person serving a* a member of the 

governing board with a person who would not be disqualified. I’ 

As we construe them, the new sections do not authorize a specific removal 

procedure for a director but rather state as a policy that, upon the obvious 

occurrence of a disqualification of a director and the determination of the fact 

by the governing board, the office becomes vacant. Compare Pruitt v. Glen 

Rose Independent School District, No. 1, 84 S. W. 2d 1004 (Tex. 1935). 

p. 1052 
-\ 

The Honorable Eugene T. Jensen. page 3 (H-226) 

It must be borne in mind, however, that if the fact of vacancy of the 

office is reasonably disputed, the governing board lacks authority to 

adjudicate that fact. The remedy would be by writ of quo warranto. See 

Articles 5996, 5997, 6253 and 6257, V. T. C.S. ; McFarlin v. State, 272 

S. W. 2d 630 (Tex. Civ. App., Waco, 1954, err. ref’d. ,n. r. e. ). 

In Honey v. Graham, 39 Tex. 1 (Tex. 1873). the Supreme Court said: 

“The right to hold and exercise the functions of an 

office to which the individual may have been duly elected, 

may be regarded both as property and privilege, and 

therefore the incumbent can only be deprived of his office 

in the manner pointed out in . . . the constitution. It 

may be safely admitted that more than one case might 

occur where the governor would be authorized in 

assuming that an office was vacant; but no case can 

occur under our constitution wherein the governor 

would be authorized to adjudge an office forfeited. 

“Judgment belongs to the judiciary. A charge of 

forfeiture can only be made out on proof - proof sufficient 

to satisfy twelve unprejudiced minds. 

“To forfeit his right to an office. the incumbent 

must have done something sufficient in law to deprive 

him of the office; and the constitution and laws secure to 

the person so accused the right of traverse - the right of 

trial - and no power on earth can lawfully deprive him of 

these rights. ” (39 Tex. at 11 - 12) 

We are of the opinion, therefore, that so long as Subsection (b) is 

not interpreted as authorizing a governing board to conduct a removal 

proceeding and to adjudge an office vacant over objection, it may constitutionally authorize the board to replace a director who acknowledged 

the vacancy of his office or whose office has been declared vacant by 

proper judicial order. 

p. 1053 
: 

4 

0, The Honorable Eugene T. Jenson. page 4 (H-226) 

Subsection (a) of each section declares a person disqualified to serve 

on the board of a district in five situations, one of which was the subject of 

Letter Advisory No. 53, supra. If this provision were to be interpreted so 

as to disqualify those already elected to a board on August 27, 1973, when 

Senate Bill 807 became effective, we think it would be considered unconstitutional by the courts as violative of Article 1. 16. of the Texas Constitution, 

which disqualifies retroactive legislation adversely affecting vested rights. 

See Deacon v. City of Euless, 405 S. W. 2d 59 (Tex. 1966); compare Childress 

County V. Sachse, 310 S. W. 2d 414 (Tex. Civ. App. , Amarillo, 1958, writ ref., 

n. r. e., 312 S. W. 2d 380). 

But it should not be assumed that the Legislature intended an unconstitutional result. 53 Tex. Jur. 2d. Statutes, 182. The Act is subject to the 

reasonable construction that it applies prospectively only so that it affects 

directors either elected or appointed to office after its effective date or, 

though elected earlier, change their status and become disqualified after 

that date. 

Subsection (a)(2) provides that a person is disqualified if “he is related 

within the third degree of affinity or consanguinity to a developer of property 

in the district, any other member of the governing board of the district, or 

the manager, engineer, or attorney for the district. ” The term “developer” 

is defined. 

The wisdom of a legislative enactment is for the Legislature. Our only 

concern with the disqualifications of subsection (a) is with their legality. As 

we did in Letter Advisory No. 53, we here seek to determine the course the 

courts would probably take if presented with the questions. 

We have no doubt that a reasonable basis can exist for guarding the 

governing boards of public bodies from nepotic influences, particularly where 

one family member is likely to dominate the will of another. Although a disqualification extending through the third degree of affinity goes far, we cannot 

say that it would be held by the courts to be unreasonable as a matter of law. 

Subsection (a)(2) provides a disqualification for anyone who is an employee, 

or was “within the two years immediately preceding his election or appointment 

to the board an employee of any developer of property in the district or any director, manager, engineer, or attorney for the district.” (Emphasis added) 

p. 1054 
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'I . 

.'. 

. . 

The Honorable Eugene T. Jehson, page 5 (H-226) 

We are of the opinion that insofar as this disqualification depends 

upon present status, it probably will be upheld by the courts. Although 

the strong presumption normally accorded legislative acts is weakened 

where basic political rights are involved, [Compare Kramer v. Union 

Free School Dist. No. 15, 395 U.S. 621 (1969); Bullock v. Carter, 405 

U.S. 134 (1972): Williams v. Rhodes. 393 U.S. 23 (1968)l nevertheless, 

in our opinion the disqualification is not on its face insupportable as a 

matter of law. 

We have concluded, however, that three other disqualified-class 

descriptions, in addition to the one considered by Letter Advisory No. 53, 

cut such a wide swath as to run afoul of Equal Protection provisions of 

the state and federal conetitutlons. Texas Constitution, Article 1. 5 3, 

U. S. Constitution, Amendment 14.. As we discussed in Letter Advisory 

No. 53, “Equal protection requires that a legislative classification 

should be reasonable for the purpose of the legislation, and must not be 

arbitrary. ” Bjorgo v. Bjorgo. 492 S. W. 2d 143 (Tex. 1966); Buchanan 

v. State, 480 S. W. 2d 207 (Tex. Crim. 1972); McDonald V. Board of 

Election Commissioners of Chicago, 394 U.S. 802 (1969); Reed v. Reed, 

404 U.S. 71 (1971). 

We feel that the courts would find the subsection (a)(2) disqualification to 

offices of those who might have been employees of a developer of property in 

the district, or of a director, manager, engineer or attorney of the district 

within two years immediately preceding his election or appointrnent,to be 

unreasonably broad for the purpose of the legislation and to be arbitrary. 

This conclusion is consistent with our reasoning in Letter Advisory No. 53. 

The Legislature did not simply disqualify the present dual status of 

employee-director. It made ineligible as directors those who law been 

so employed within a two year period. In Letter Advisory No. 53, commenting upon the similar restriction of subsection (a)(5)(B), we said: 

“Assuming the purpose of the . . . statute to be to 

eliminate conflicts of interest between developers. on the 

one hand, and boards of directors of water districts on the 

other, we can see no reasonable relationship between the 

classification of [the subsection] and that purpose. ” 

p. 1055 
,- \, The Honorable Eugene T. Jenson, page 6 (H-226) 

We do not believe that there is a reasonable basis for holding that 

a person, as for example, a secretary who worked for an attorney two 

years ago, should be disqualified from serving as a director of a district merely because the attorney now represents the district, in the 

absence of a factual showing of some continuing relationship or influence 

which would affect her ability to serve. And compare Cleveland Board 

of Education v. La Fleur, u. s. -, 42 LW 4186, (January 21, 1974). 

The same holds true for the classification of subsection (a)(4) which 

not only disqualifies those who serve simultaneously as an attorney, 

consultant. engineer, a manager, architect. or in some other professional 

capacity for the board or for a developer in connection with property 

within the district, but those who have previously served in such capacities within a two year period. We think the proscriptions against 

previous service and previous employment are invalid. 

Letter Advisory No. 53 was addressed only to subsection (a)(5)(B) of 

Senate Bill 807. We went no further than the requested opinion required. 

and the validity of other particular provisions, including that of subsection (a)(5)(B), was not placed before us for specific review. It suffers, 

however, from the same deficiency as the others discussed above, i. e., 

not only are persons presently contracting with the governing board of 

the district barred from office, but also those who contracted with it 

during the two years precedingtheir election or appointment (notwithstanding that such contracts may have long since terminated). In our 

opinion, disqualification for the office cannot be reasonably based upon 

prior contractual relationships over such an extended period without the 

existence of other factors indicating an inability to serve the district 

without bias. 

We have examined subsections (c) of the statutes, the penal provisions, 

to determine their constitutionality. They provide: 

“Any person who willfully violates the provisions 

of Subsection (a) of this section is guilty of a misdemeanor, 

and on conviction, shall be fined not less than $100 nor 

more than $1,000. ” 

We have difficulty with this provision because Subsection (a) does no more 

than describe those who are disqualified. Disqualification hinges, not necesp. 1056 
” / 

. . . . 

The Honorable Eugene T. Jensen. page 7 (H-226) 

sarily on the commission of an act, but often on the relationship of a director 

to another person or business entity, a relationship over which the director 

might have no control. 

“A [criminal] statute which either forbids or requires 

the doing of an act in terms so vague that men of 

common intelligence must necessarily guess at its 

meaning and differ as to its application, violates the 

first essential of due process.” 

Connally v. General Construction Co., 269 U.S. 385, 391 (1926). A statute 

which purports to impose criminal sanctions must be certain and definite 

in its proscriptions to comply with due process requirements. See Texas 

Liquor Control Board v. Attic Club, 457 S. W. 2d 41 (Tex. 1970); Attorney 

General Opinion H-15 (1973). 

However, the courts are required to adopt such a construction of penal 

statutes, if possible, to uphold their constitutionality. State v. Shoppers 

World, Inc., 380 S. W. 2d LO7 (Tex. 1964). 

In our opinion, Subsections (c) may and should be interpreted to provide that it is a penal offense to willfully, i. e., knowingly, occupy an office 

as director of a district and exercise the rights of a director when disqualified 

under subsection (a). We are not authorized to question the wisdom of the 

legislation. Putting that question aside, we cannot say that the statute, so 

construed, is too vague to give the constitutionally required notice. 

It has been suggested that the operation of Senate Bill 807 would 

unconstitutionally impair the obligations of contracts behveen the district 

and third parties if it required the vacation of office by the district’s board 

of directors and no’others owning property within the district could legally 

qualify for election or appointment. But such a situation would be no different from that which would occur if qualified persons refused to be candidates, 

or if, though elected or appointed, they refused to meet and act as directors. 

,. ‘: 

.: 

p. 1057 
r 

The Honorable Eugene T. Jenson, page 8 (H-226 

We do not see that the mere enactment of this legislation has impaired 

the obligations of any valid contracts. Compare Texas State Board of Barber 

Examiners v. Beaumont Barber College, Inc., 454 S. W. 2d 729 (Tex. 1970). 

Moreover, subsection (e) is specifically designed to protect innocent persons 

dealing with the board of directors of a district. 

As we pointed out in Letter Advisory No. 53, though Senate Bill 807 

contains no severability provision. Article 5429b-2, 3.12, V.T.C.S., the 

Code Construction Act, provides for severability of code provisions if feasible. 

We do not think the probable unconstitutionality of the prior status provisions 

of subsections (a)(2), (a)(5)(A), or (a)(5)(B), or, for that matter, the possible 

unconstitutionality of the penal provisions, if in fact subsequently found by 

a court, will invalidate the rest of the provisions. We think valid and workable statutes will remain. 

SUMMARY 

Additions to the Water Code by Senate Bill 807. 63rd 

Leg.. providing for the replacement of directors who 

vacate their office because of disqualification, are constitutional. The penal provisions, as construed and 

interpreted in this opinion are constitutional. Certain 

of the disqualifications, having no reasonable basis, 

are unconstitutional. 

Very truly yours, 

DAVID M. KENDALL, Chairman 

Opmion Committee 

p. 1058