DAN MORALES 

ATTORNEY CLNERAL 

@ffice of tip !ZWmtep 

Mate of IICexafi 

November 18, 1998 

Q&nerd 

The Honorable Ron Lewis 

Chair, County Affairs Committee 

Texas House of Representatives 

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 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. You also ask whether the statute may be applied 

retroactively. Finally, you ask whether a water district director who becomes a candidate 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 a water district director who becomes a candidate 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, as explained below, whether a water 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) A person serving as director of a district who becomes a candidate 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” is broadly defined to mean 

any district or authority created by authority of either 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 

a district.“s 

Section 49.072(b) refers to the definition of “candidate” set forth in section 251.001 of the 

Election Code: 

(1) “Candidate” means a person who knowingly and willingly takes 

affirmative action for the purpose of gaining nomination or election to public 

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 of the automatic resignation provisions of Article XVI, Section 65, 

or Article XI, Section 11, of the Texas Constitution; 

(B) the tiling of an application for a place on a ballot; 

(C) the filing of an application for nomination by convention; 

(D) the filing of a declaration of intent to become an independent 

candidate or a declaration of write-in candidacy; 

‘Water Code 9 49.001(a)(l). 

4/d. $49,001(a)(6). 

'Id. 5 49.001(a)(3). 

p. 2806 
The Honorable Ron Lewis - Page 3 (DM-493) 

(E) the making of a public announcement of a definite intent to run 

for public office in a particular election, regardless of whether the specific 

office is mentioned in the announcement; 

(F) before a public announcement of intent, the making of a statement 

of definite intent to run for public 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 a campaign expenditure; and 

(H) the seeking of the nomination of an executive committee of a 

political party to fill a vacancy. [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 a director.” 

You first ask about the constitutionality of section 49.072 under article XV, section 7. You 

ask the following question: 

Is 5 49.072 of the Texas Water Code unconstitutional on its face because it 

violates the exclusive removal requirementsmandatedby ArticleXV, Section 

7 of the Texas Constitution insofar as 5 49.072 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 7 applies 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 Honorable Ron Lewis - Page 4 (DM-493) 

the office pursuant to quo 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 a district judge upon a jury finding.* Article V, 

section 24 does not extend to removal of a county 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 a provision 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; if possible, a statute must be construed to render it 

constitutional. Weinerv. Wasson, 900 S.W.2d 316,330 (Tex. 1995); Gov’t Code 5 311.021(l) (“In 

enacting a statute, it is presumed 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 of the many districts governed by chapter 49 of the 

Water Code varies. Some districts comprise territory in many counties. Other small districts are 

contained within a single 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 5 66.001(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 to remove school trustee, a county officer, for vacating office by moving out 

of school district). Some cases suggest that a quo warranta proceeding is the proper method to determine that a county 

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 

of office). We are not aware of any authority addressing whether a county officer who is removed 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, a quo warranto proceeding may be the only way to remove 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 to provide that board of directors is a state board for purposes of Tex. 

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 of the following water districts as potential 

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, to the 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...) 

p. 2808 
The Honorable Ron Lewis - Page 5 (DM-493) 

Some directors may not tit readily 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 a court, 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 a ground for removing 

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 us to address 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 of those 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 § 3 11.022. 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” a candidate after 

that date. Therefore, we conclude that section 49.072 does not apply to a director who became a 

candidate prior to its effective date, September 1, 1997. 

Article I, section 16 of the 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 16 prohibits retroactive laws only to the extent “they destroy or impair 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 

1 of Donna Irrigation Dist. No. 1 enabling act), and is therefore subject to Water Code chapter 49, see Water Code 

5 49.00l(a)( 1) (defining “district”). 

12As noted above, an officer who is not subject to a constitutional removal provision who becomes a candidate 

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) (q uo 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, 5 79, 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...) 

p. 2809 
The Honorable Ron Lewis - Page 6 (DM-493) 

rights are destroyed or impaired.‘5 Section 49.072 may operate to shorten the term of an 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 of office, unless the constitution fixes 

the term of oftice.16 We are not aware of a constitutional provision fixing the term of water district 

directors. In sum, in answer to your second question, we conclude that section 49.072 applies only 

to a water district director who becomes a candidate after its effective date and does not violate the 

constitutional prohibition against retroactive laws. 

Finally, you ask whether a water district director who becomes a candidate 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]11 officers ofthe State shall continue to perform their offices until 

their successors shall be duly qualified.” As with our answer to your 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 a water district director 

who is not subject to constitutional removal requirements, we believe that the director would hold 

over by operation of article XVI, section 17. Article XVI, section 17 “was placed in the constitution 

to prevent public convenience from suffering because of a vacancy in office.“” It has 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 17 of the 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 1 GEORGE D. BRADEN, THE CONSTITUTION OF THE STATE OF TEXAS: 

AN ANNOTATED AND COMPARATIVE ANALYSIS, 58-62 (1977). 

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

‘6See Tarrant Couniy v. Ashmore, 635 S.W.2d 417,420-22 (Tex. 1982) (public officer’s qualified interest in 

office is not property nor is it a vested right); Popham Y. Patterson, 5 1 S.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 a statute shortening an 

incumbent officer’s tam, as long 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 a vested 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 17 Interp. Commentary (Vernon 1993) 

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The Honorable Ron Lewis - Page 7 (DM-493) 

an officer who vacates office through losing a qualification.‘8 In Attorney 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 17.19 Given the policy animating article XVI, section 65 and 

its broad application, we believe a court would apply it here.z0 

Article XVI, section 17 will operate somewhat differently in the case of a director who is 

subject to constitutional removal provisions. Again, we believe that a court would construe section 

49.072 to create a ground for removing a director 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 is no 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 a director who becomes a candidate 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’ a water district director who is formally removed fkom office for 

becoming a candidate for another office would not hold over. 

Finally, a director subject to a constitutional removal provision who becomes a candidate for 

another office may wish to cease acting as director prior to the time a successor is qualified. We see 

no difference between this situation and a voluntary resignation. An officer who voluntarily resigns 

from office is clearly subject to article XVI, section 17.” As one court has noted, under article XVI, 

section 17 “an officer cannot arbitrarily divest himself of the obligation and authority to perform 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 in office until his successor qualifies.“*3 For this reason, 

we conclude that a director who effectively attempts to resign from office by operation of section 

“Attorney General Opinion H-1224 (1978) at 2. 

“Attorney General Opinion DM-377 (1996) at 2-5. 

“As noted above, an officer not subject to constitutional removal requirements who refuses to vacate 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.--El Paso 1939, writ dism’d) (constitutional holdover provision does not apply to officer who has been formally 

removed from office). 

“See id 

‘2Jonesv. CityofJefferson, 1 SW. 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. 

p. 2811 
The Honorable Ron Lewis - Page 8 (DM-493) 

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

a successor 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 7 of the 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 

of an incumbent officer, it is not anunconstitutional retroactive law. Whether 

a water 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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