### DAN MORALES

ATTORNEY CLNERAL 

## @ffice of tip !ZWmtep Mate ofIICexafi
November 18, 1998 

## Q&nerd

The Honorable Ron Lewis Chair, County Affairs Committee Texas House ofRepresentatives P.O. Box 2910 Austin, Texas 78768-2910 Opinion No. DM-493 Re: Whether Water Code section 49.072, which provides that a water district director who becomes a candidate for another office is no longer qualified to serve as director, violates article XV, section 7 of the Texas Constitution, and related questions (RQ-1104)
Dear Representative Lewis: You ask whether Water Code section 49.072, which provides that awater district director who becomes acandidate for another office isno longer qualified to serve asdirector, violates article XV, section 7 of the Texas Constitution. You also ask whether the statute may be applied retroactively. Finally, you askwhether awater district director who becomes acandidate for another office continues to serve until a successor director becomes qualified to serve. We conclude that section 49.072 must be construed to incorporate any constitutional requirements for removing a director from office and is therefore not unconstitutional under article XV, section 7 or any other constitutional removal provision. In addition, we conclude that the legislature intended section 49.072 to apply only to awater district director who becomes acandidate after its effective date. To the extent section 49.072 operates to shorten the term of an incumbent officer, it is not an unconstitutional retroactive law. Finally, asexplained below, whether awater district director who “is no longer qualified to serve” under section 49.072 holds over in office by operation of article XVI, section 17 of the Texas Constitution depends upon whether the office is subject to constitutional removal requirements. Water Code section 49.072, enacted by the Seventy-fifth Legislature’ to become effective September 1, 1997: provides as follows:

(a) Aperson serving asdirector ofadistrict who becomes acandidate for another office is no longer qualified to serve as director.

‘Act of May 28, 1997,75th Leg., RX, ch. 1349,§ 75, 1997 Tex. Gen. Laws 5080.5097

‘See id. 5 79.The Honorable Ron Lewis - Page 2 (DM-493)

(b) In this section, “candidate” has the meaning assigned by Section 251.001, Election Code. For purposes of chapter 49, the term “district” isbroadly defined to mean

any district or authority created by authority ofeither Sections 52(b)(l) and (2), Article III, or Section 59, Article XVI, Texas Constitution, regardless of how created. The term “district” shall not include any navigation district or port authority created under general or special law or any conservation and reclamation district created pursuant to Chapter 62, Acts of the 52nd Legislature, 1951 (Article 8280-141, Vernon’s Texas Civil Statutes)? “Director” means “either a supervisor or director appointed or elected to the’14“governing body of adistrict.“s Section 49.072(b) refers to the definition of “candidate” set forth in section 251.001 ofthe Election Code: (1) “Candidate” means aperson who knowingly and willingly takes

affirmative action for the purpose ofgaining nomination orelection topublic office or for the purpose of satisfying financial obligations incurred by the person in connection with the campaign for nomination or election. Examples of affirmative action include: (A) the filing of a campaign treasurer appointment, except that the tiling does not constitute candidacy or an announcement of candidacy for purposes ofthe automatic resignation provisions ofArticle XVI, Section 65, or Article XI, Section 11, ofthe Texas Constitution; (B) the tiling of an application for aplace on aballot; (C) the filing of an application for nomination by convention; (D) the filing of a declaration of intent to become an independent candidate or adeclaration ofwrite-in candidacy;

‘Water Code 949.001(a)(l). 4/d. $49,001(a)(6). 'Id. 549.001(a)(3).

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(E) the making of apublic announcement of adefinite intent to run for public office in aparticular election, regardless of whether the specific office ismentioned in the announcement; (F) before apublic announcement ofintent, the making ofastatement ofdefinite intent torun forpublic office and the soliciting of support by letter or other mode of communication; (G) the soliciting or accepting of a campaign contribution or the making of acampaign expenditure; and (H) the seeking of the nomination of an executive committee of a political party to fill avacancy. [Footnote omitted.] Elec. Code 5 251.001(l). Pursuant to Water Code section 49.072, a water district director who engages in any of the conduct listed above “becomes a candidate” and “is no longer qualified to serve as adirector.” You first ask about the constitutionality of section 49.072 under article XV, section 7. You ask the following question:

Is 549.072 ofthe Texas Water Code unconstitutional on its face because it violates the exclusive removal requirementsmandatedby ArticleXV, Section 7ofthe Texas Constitution insofar as 549.072 appears to be self-executing and [to] automatically remove an otherwise qualified director, and does not provide for a trial or judicial removal of directors as required by the Constitution[?] We conclude that section 49.072 does not violate constitutional removal requirements, for the following reasons. Constitutional requirements for removal from office vary according to the type of officer involved. For example, article XV, section 7,the provision you ask about, governs removal of state officers,” requiring the legislature to “provide by law for the trial and removal from office of all officers of this State, the modes for which have not been provided in this Constitution.” The legislature has provided for removal of state officers who do an act that by law causes forfeiture of

6Although the Texas Supreme Court has held that article XV, section 7applies only to state officers and does not apply to city officers, see Banner v. Belsterling, 138 SW. 571, 575 (Tex. 1911). an appellate court recently concluded that article XV, section 7 applied to the off& of mayor of a general law city, see State v.Bradley, 956 S.W.Zd 725,736 (Tex. App..-Fort Worth 1997, pet. granted). The Texas Supreme Court’s review ofthat decision may further elucidate the reach of article XV, section 7.

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the office pursuant toquo warranto proceedings.’ Another constitutional provision, article V, section 24 provides for the removal of county officers “for incompetency, official misconduct, habitual drunkenness, or other causes defined by law” by adistrict judge upon ajury finding.* Article V, section 24 does not extend to removal of acounty officer for grounds not expressly provided in the constitution or by the legislature, and we do not believe it would apply to a county officer who becomes disqualified to serve by virtue of aprovision like section 49.072.9 We construe section 49.072 in light of basic rules of statutory construction. Legislative enactments are presumed to be constitutional; ifpossible, a statute must be construed to render it constitutional. Weinerv. Wasson, 900 S.W.2d 316,330 (Tex. 1995); Gov’t Code 5311.021(l) (“In enacting astatute, itispresumed that []compliance with the constitutions ofthis state and the United States is intended[.]“). As you point out, section 49.072 “may impact the more than 5000 water district directors around the State.” The nature ofthe many districts governed by chapter 49 ofthe Water Code varies. Some districts comprise territory in many counties. Other small districts are contained within asingle county. Some larger water districts may be state entities and their directors may be state officers. lo Directors of other, smaller districts, however, may be county officers.”

‘See Civ. Prac. &Rem. Code 566.001(2).

‘County officers are removed for causes set forth in article V, section 24 of the Texas Constihltion pursuant to Local Government Code sections 87.11 through 87.19.

?See, e.g., Lamb v.Johnson, 267 S.W.2d 285 (Tex. Civ. App.--San Antonio 1954, no writ) (county removal provisions did not authorize district judge toremove school trustee, acounty officer, for vacating office by moving out of school district). Some cases suggest that aquo warranta proceeding isthe proper method to determine that acounty officer has vacated an oftice by becoming disqualified to serve. See id. (suggesting that quo wammto proceeding is proper remedy in case where county officer alleged to have vacated office by moving residence); see also Civ. Prac. & Rem. Code 5 66.001(2) (quo wammto action available if “public officer” does an act that by law causes forfeiture ofoffice). We are not aware ofany authority addressing whether acounty officer who isremoved for causes other than those set forth in article V, section 24 is constitutionally entitled to removal by quo warranto action. As a practical matter, aquo warranto proceeding may be the only way toremove an officer who refuses to acknowledge that he or she is no longer qualified to saw.

“See, e.g., Act of May 30, 1983, 68th Leg., R.S., ch. 484, art. IV, $ 1, 1983 Tex. Gen. Laws 2827, 2840 (amending Lower Colorado River Authority Act toprovide that board ofdirectors is astate board for purposes ofTex. Const. art. XVI, 5 30a); Act ofMay 27,1969,6lst Leg., R.S., ch. 432, 1969 Tex. Gen. Laws 1465, 1465 (amending Guadalupe-Blanco River Authority Act to provide that board of directors is a state board for purposes of Tex. Const. at. XVI, §30a). The Texas Legislative Council has also identified directors ofthe following water districts aspotential state officers: Upper Colorado River Authority, Lower Neches Valley Authority, Angelia and Neches River Authority, Brazes River Authority, Central Colorado River Authority, Nueces River Authority, Red River Authority of Texas, Sabine River Authority of Texas, San &into River Authority, and Sulphur River Basin Authority See Memorandum from Steven R.Collins, General Counsel, Texas Legislative Council, tothe Honorable Ron Lewis, State Representative, House of Representatives, State of Texas (Feb. 9, 1998) (on tile with Attorney General Opinion Comm.).

“At least one court has suggested that the director of an irrigation district is a county officer subject to the constitutional and statutory removal requirements applicable to county officers. See Engleman Land Co. v. Donna (continued...)

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Some directors may not titreadily into either category. Because removal procedures for some water district directors may be mandated by the constitution, construing section 49.072 to automatically remove such directors would render the statute unconstitutional as applied in those situations. We believe acourt, relying on the basic rules of statutory construction discussed above, would construe section 49.072 not to effect automatic removal in such cases. Should a particular water district director be subject to constitutionally required removal requirements, we believe a court would construe section 49.072 not to effect automatic removal but rather to create aground forremoving the director pursuant to constitutionally required proceedings.‘* Next you ask if section 49.072 is “unconstitutional or otherwise invalid if applied retroactively to a qualified director who became a ‘candidate’ before the effective date of the statute.” Your question actually asks ustoaddress two issues: First, whether section 49.072 applies to a director who became a candidate prior to its effective date, September 1, 1997, and, second, whether section 49.072 is an unconstitutional retroactive law. We address each ofthose questions in turn. According to the Code Construction Act, “[a] statute is presumed to be prospective in its operation unless expressly made retrospective.” Gov’t Code §311.022. In enacting section 49.072, the legislature did not provide that it would operate retrospectively.” In addition, section 49.072 applies to a director who “becomes” a candidate. A director who became a candidate prior to September 1, 1997, has already acquired that status and cannot be said to “become” acandidate after that date. Therefore, we conclude that section 49.072 does not apply to adirector who became a candidate prior to its effective date, September 1, 1997. Article I, section 16ofthe Texas Constitution provides, “No bill of attainder, ex post facto law, retroactive law, or any law impairing the obligation of contracts, shall be made.” It is well established that section 16prohibits retroactive laws only tothe extent “they destroy orimpair vested rights.“14 For this reason, a law is not invalid even though retroactive in operation unless vested

“(...continued) irrigation Disf. No. I, 209 SW. 428,429 (Tex. Civ. App.--San Antonio 1919, writ ref d). The irrigation district in that case is a conservation and reclamation district created under the authority of article XVI, section 59 of the Texas Constitution,seeAct ofApr. 16, 1959,56th Leg., R.S., ch. 108,s 1, 1959 Tex. Gen. Laws 190, 191 (amending section 1of Donna Irrigation Dist. No. 1enabling act), and is therefore subject to Water Code chapter 49, see Water Code 549.00l(a)( 1)(defining “district”).

12Asnoted above, an officer who isnot subject to aconstitutional removal provision who becomes acandidate for another office and refuses to acknowledge that he or she is no longer qualified to serve may be formally removed pursuant to a quo warranto proceeding. See Civ. Prac. & Rem. Code 9 66.001(2) (quo warmnto action available if public officer does an act that by law causes forfeiture of office).

“See Act of May 28, 1997,75th Leg., R.S., ch. 1349, 579, 1997 Tex. Gen. Laws 5080,5097. “Corpus Christi People’s Baptist Church, Inc. v.Nueces County Appraisal D&f., 904 S.W.Zd 621,626 (Tex. (continued...)

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rights are destroyed or impaired.‘5 Section 49.072 may operate to shorten the term ofan incumbent director who was elected or appointed to office prior to September 1, 1997. We do not believe that this effect violates the constitutional prohibition against retroactive laws, however, because an incumbent officer has no vested right in serving the full term ofoffice, unless the constitution fixes the term of oftice.16 We are not aware of aconstitutional provision fixing the term ofwater district directors. In sum, in answer to your second question, we conclude that section 49.072 applies only to awater district director who becomes acandidate after its effective date and does not violate the constitutional prohibition against retroactive laws. Finally, you ask whether awater district director who becomes acandidate for another office and is therefore “no longer qualified to serve as director” pursuant to section 49.072 continues in office by virtue of article XVI, section 17 of the Texas Constitution, the constitutional holdover provision, which provides that “[a]11officers ofthe State shall continue toperform their offices until their successors shall be duly qualified.” As with our answer toyour first question, we believe that the applicability of article XVI, section 17 depends on the type of office at issue and the circumstances involved. In cases where section 49.072 effects the automatic resignation of awater district director who isnot subject to constitutional removal requirements, we believe that the director would hold over by operation ofarticle XVI, section 17. Article XVI, section 17“was placed inthe constitution to prevent public convenience from suffering because ofavacancy in office.“” Ithas been broadly construed to apply in a variety of situations analogous to this one. Attorney General Opinion H-1224, for example, determined that article XVI, section 17ofthe Texas Constitution applies to

“(...continued) 1995); State v. Project Principle, Inc., 724 S.W.2d 387, 390 (Tex. 1987); Merchant’s Fast Motor Lines Y.Railroad Comm ‘n,573 S.W.2d 502,504 (Tex. 1978); Deacon Y.City ofEuless, 405 S.W.Zd 59,62 (Tex. 1966); McCain v. Yost, 284 S.W.2d 898,900 (Tex. 1955); see generally 1GEORGED. BRADEN,THECONSTITUTIONOFTHESTATEOFTEXAS: AN ANNOTATEDANDCOMPARATIVEANALYSIS,58-62 (1977).

‘sCorpus Christi People’s Baptist Church, 904 S.W.2d at 626

‘6SeeTarrant Couniy v.Ashmore, 635 S.W.2d 417,420-22 (Tex. 1982) (public officer’s qualified interest in office isnot property nor is itavested right); Popham Y.Patterson, 51S.W.2d 680,683 (Tex. 1932) (the legislature has the authority to shorten term of statutory office and “make the act doing so apply to those in oftice at the time the act becomes effective”); Attorney General Opinion M-235 (1984) at 2(“The legislature may enact astatute shortening an incumbent officer’s tam, aslong as the constitution does not fix the term of office.“). We disagree with the suggestion in Attorney General Opinion H-226 that an incumbent water district director has a vested right in the office. See Attorney General Opinion H-226 (1974) at 4. We arc not aware of subsequent attorney general opinions concluding that an officer has avested right in the office. Indeed, several subsequent opinions conclude that legislature may enact a statute shortening an incumbent officer’s term, as long as the constitution does not fix the term of oftice. See, e.g., Attorney General Opinions JM-1233 (1990) at 3, JIv-235 (1984) at 2-3, H-955 (1977) at 4.

“Tex. Const. art. XVI, 5 17Interp. Commentary (Vernon 1993)

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anofficer who vacates office through losing aqualification.‘8 InAttorney General Opinion DM-377, this office concluded that an officer who automatically resigns pursuant to article XVI, section 65 holds over under article XVI, section 17.19Given the policy animating article XVI, section 65 and its broad application, we believe acourt would apply ithere.z0 Article XVI, section 17will operate somewhat differently in the case of adirector who is subject to constitutional removal provisions. Again, we believe that acourt would construe section 49.072 to create a ground for removing adirector subject to constitutional removal requirements rather than to automatically remove such a director. A director subject to constitutional removal requirements has the right to remain in office until formally removed. A director who becomes a candidate for another office and isno longer qualified to serve may acknowledge the disqualification and nevertheless remain in office until a successor is selected and qualified according to the applicable law. The director continues in office as a matter of right rather than as a holdover. Similarly, such adirector who becomes acandidate for another office and chooses to dispute that he or she is no longer qualified to serve will remain in office as a matter of right until formally removed. Because the constitutional holdover provision does not apply to an officer who has been formally removed from office,z’ awater district director who is formally removed fkom office for becoming a candidate for another office would not hold over. Finally, adirector subject toaconstitutional removal provision who becomes acandidate for another office may wish to cease acting asdirector prior tothe time asuccessor isqualified. We see no difference between this situation and avoluntary resignation. An officer who voluntarily resigns from office isclearly subject to article XVI, section 17.” As one court has noted, under article XVI, section 17“an officer cannot arbitrarily divest himself ofthe obligation and authority toperform the duties of his office until his successor qualifies; and even though he resigns and his resignation is accepted, the law operates to continue him inoffice until his successor qualifies.“*3 For this reason, we conclude that a director who effectively attempts to resign from office by operation of section
“AttorneyGeneralOpinionH-1224(1978)at2. “AttorneyGeneralOpinionDM-377(1996)at2-5. “As noted above, an officer not subject toconstitutional removal requirements who refuses tovacate an office may be removed pursuant to a quo warranta proceeding. See supra note 9. Such an officer would not hold over if formally removed from office in a quo warranta proceeding. See Manning Y.HarIm, 122 S.W.2d 704,707 (Tex. Civ. App.--ElPaso 1939,writdism’d)(constitutionalholdoverprovisiondoesnotapplytoofficerwhohasbeenformally removedfromoffice).

“See id

‘2Jonesv. CityofJefferson, 1SW. 903 (Tex. 1886); Plains Common Consol. Sch. Dist. No. I v.Hayhurst, 122 S.W.2d 322 (Tex. Civ. App.--Amarillo 1938, no writ); Keen Y.Featherston, 69 SW. 983(Tex.Civ.App. 1902,writ refd).

“‘Hoyhurst, 122 S.W.2d at 326-27.

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49.072 holds over under article XVI, section 17 and is required to continue to act as director until asuccessor is qualified. SUMMARY

Water Code section 49.072 must be construed to incorporate any constitutionally required removal proceedings and is therefore not unconstitutional under article XV, section 7ofthe Texas Constitution or any other constitutional removal provision. Section 49.072 applies only to a water district director who becomes a candidate after its effective date, September 1,1997. To the extent section49.072 operates to shorten the term ofanincumbent officer, itisnot anunconstitutional retroactive law. Whether awater district director who “is no longer qualified to serve” under section 49.072 holds over in office by operation of article XVI, section 17 of the Texas Constitution depends upon the circumstances.

DAN MORALES Attorney General of Texas JORGE VEGA First Assistant Attorney General SARAH J. SHIRLEY Chair, Opinion Committee Prepared by Mary R. Crouter Assistant Attorney General

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