# 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 ofSenate Bill 807, 63rd Leg., 1973, concerning qualification of members ofgoverning boards ofcertain 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 thequalifications for membership ongoverning boards ofcertain conservation and reclamation districts created under Article 3, g52, and Article 16. 559, ofthe 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 ofthe 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 ofthese four new sections will be singular but is intended to 

### cover all of them. OnJune 16, 1973, this office issued Letter Advisory No. 53to Governor Briscoe concerning the constitutionality of subsection (a)(5)(B) ofeach section to be added by Senate Bill 807. 7hatsubsection would render ineligible a person who “is or has been within the twoyears immediately preceding his election or appointment to the board: ” l’(B) a party toa 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. 1051The Honorable Eugene T. Jenson, page 2 (H-226)

or conveying real property inthe district for the purpose ofeither establishing apermanent residence or establishing a commercial business within the district. ” Inthat opinion. we concluded that the quoted subsection would probably beheld unconstitutional under 43ofArticle 1ofthe Constitution ofthe State of Texas and under the Fourteenth Amendment tothe Constitution ofthe United States, which both guarantee equal protection under state law. Letter Advisory No. 53limited our review ofSenate Bill 807 tothe specific subsection referred to us by the Governor and stated that it should notbe understood as passing upon the constitutionality ofany 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, andwill 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) ofeach section states: “Within 60 days after the governing board determines a relationship or employment which constitutes a disqualification under Subsection (a) ofthis section, it shall replace the person serving a* amember of the governing board with a person who would notbe 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 ofa disqualification ofa director and the determination ofthe 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)

Itmust be borne inmind, however, that ifthe fact ofvacancy ofthe office is reasonably disputed, the governing board lacks authority to adjudicate that fact. The remedy would be bywrit ofquo 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.). InHoney v. Graham, 39 Tex. 1(Tex. 1873). the Supreme Court said: “The right tohold and exercise the functions ofan office towhich the individual may have been duly elected, may be regarded both as property and privilege, and therefore the incumbent can only be deprived ofhis office inthe 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 toadjudge an office forfeited.

“Judgment belongs to thejudiciary. A charge of forfeiture can only be made out onproof - proof sufficient to satisfy twelve unprejudiced minds. “To forfeit his right to an office. the incumbent must have done something sufficient inlaw to deprive him ofthe office; andthe constitution and laws secure to the person so accused the right oftraverse - the right of trial - and nopower onearth can lawfully deprive him of these rights. ” (39 Tex. at 11 - 12) We are ofthe 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 adirector who acknowledged the vacancy ofhis office orwhose office has been declared vacant by proper judicial order.

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

Subsection (a) ofeach section declares aperson disqualified to serve onthe board ofa district in five situations, one ofwhich was the subject of Letter Advisory No. 53, supra. Ifthis provision were to be interpreted so as to disqualify those already elected to aboard onAugust 27, 1973, when Senate Bill 807 became effective, we think itwould be considered unconstitutional bythe courts as violative ofArticle 1. 16. ofthe Texas Constitution, which disqualifies retroactive legislation adversely affecting vested rights. See Deacon v. City ofEuless, 405 S.W. 2d 59 (Tex. 1966); compare Childress County V. Sachse, 310S.W. 2d414 (Tex. Civ. App. , Amarillo, 1958, writ ref., n.r. e., 312S.W. 2d 380). But it should not be assumed that the Legislature intended an unconstitutional result. 53 Tex. Jur. 2d. Statutes, 182. TheAct 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 aperson is disqualified if “he is related within the third degree ofaffinity or consanguinity toa developer ofproperty inthe district, any other member ofthe governing board ofthe district, or the manager, engineer, or attorney for the district. ” The term “developer” is defined. The wisdom ofalegislative 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 ifpresented with the questions. We have no doubt that a reasonable basis can exist for guarding the governing boards ofpublic bodies from nepotic influences, particularly where one family member is likely to dominate the will ofanother. Although a disqualification extending through the third degree ofaffinity goes far, we cannot say that itwould beheld by the courts to be unreasonable as a matter oflaw. 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 ofany developer ofproperty inthe district or any director, manager, engineer, or attorney for the district.” (Emphasis added)

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

We are ofthe opinion thatinsofar as this disqualification depends upon present status, itprobably 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 onits face insupportable as a matter oflaw. We have concluded, however, that three other disqualified-class descriptions, in addition tothe one considered by Letter Advisory No. 53, cut such awide swath as to runafoul of Equal Protection provisions of the state and federal conetitutlons. Texas Constitution, Article 1. 53, U. S. Constitution, Amendment 14.. As we discussed in Letter Advisory No. 53, “Equal protection requires that alegislative classification should be reasonable for thepurpose ofthe legislation, and must notbe 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 ofChicago, 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 ofthose who might have been employees ofa developer ofproperty in the district, or ofa director, manager, engineer or attorney 

### ofthe district within two years immediately preceding his election or appointrnent,to be unreasonably broad for the purpose 

### ofthe legislation andto be arbitrary. This conclusion is consistent with our reasoning in Letter Advisory No. 53. The Legislature didnot simply disqualify the present dual status of employee-director. Itmade ineligible as directors those wholaw been so employed within atwo 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 ofinterest between developers. onthe one hand, andboards ofdirectors ofwater districts onthe 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 donot believe that there is a reasonable basis for holding that aperson, as for example, a secretary whoworked for an attorney two years ago, should be disqualified from serving as a director ofa district merely because the attorney now represents the district, inthe absence ofa factual showing of some continuing relationship or influence which would affect her ability to serve. And compare Cleveland Board ofEducation 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, butthose who have previously served in such capacities within atwo year period. We think the proscriptions against previous service andprevious employment are invalid. Letter Advisory No. 53was addressed only to subsection (a)(5)(B) of Senate Bill 807. We went nofurther than the requested opinion required. and the validity ofother 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). Inour opinion, disqualification for the office cannot be reasonably based upon prior contractual relationships over such an extended period without the existence ofother factors indicating aninability to serve the district without bias. We have examined subsections (c) ofthe statutes, the penal provisions, to determine their constitutionality. They provide:

“Any person who willfully violates the provisions ofSubsection (a) ofthis section is guilty ofamisdemeanor, 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” /

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

sarily on the commission ofan act, but often onthe relationship ofa director toanother person or business entity, a relationship over which the director might have no control.

“A [criminal] statute which either forbids or requires the doing ofan 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 ofdue process.” Connally v. General Construction Co., 

### 269 U.S. 385, 391 (1926). A statute which purports toimpose 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, ifpossible, to uphold their constitutionality. State v. Shoppers World, Inc., 

### 380S.W. 2d LO7(Tex. 1964). Inour opinion, Subsections (c) may and should be interpreted to provide that it is a penal offense towillfully, i.e., knowingly, occupy an office as director ofa district and exercise the rights ofa director when disqualified under subsection (a). We are not authorized toquestion 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. Ithas been suggested that the operation ofSenate Bill 807 would unconstitutionally impair the obligations ofcontracts behveen the district and third parties ifit required the vacation ofoffice by the district’s board ofdirectors 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. 1057r

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

We do not see that the mere enactment ofthis legislation has impaired the obligations ofany valid contracts. Compare Texas State Board ofBarber Examiners v. Beaumont Barber College, Inc., 454 S.W. 2d 729 (Tex. 1970). Moreover, subsection (e) is specifically designed toprotect innocent persons dealing with the board ofdirectors ofa 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 ofcode provisions iffeasible. We donot think the probable unconstitutionality ofthe prior status provisions of subsections (a)(2), (a)(5)(A), or (a)(5)(B), or, for that matter, the possible unconstitutionality ofthe penal provisions, ifinfact subsequently found by a court, will invalidate the rest ofthe provisions. We think valid andworkable statutes will remain. SUMMARY

Additions to the Water Code by Senate Bill 807. 63rd Leg.. providing for the replacement ofdirectors who vacate their office because ofdisqualification, are constitutional. The penal provisions, as construed and interpreted inthis opinion are constitutional. Certain ofthe disqualifications, having no reasonable basis, are unconstitutional. Very truly yours,

DAVID M. KENDALL, Chairman Opmion Committee

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