### ATTORNEY GENERAL OF TEXAS GREG ABBOTT

January 11,2006

Mr. James Chastain, President Bandera County River Authority Opinion No. GA-0392 and Groundwater District Post Office Box 177 

### 202 Twelfth Street Bandera, Texas 78003 Re: Qualifications for members of the board of the Bandera County River Authority and Groundwater District (RQ-0367-GA)

Dear Mr. Chastain: On behalf ofthe Bandera County River Authority and Groundwater District (the “district”) you request an opinion about the qualifications for holding office as district director.’ The district was created and itspowers established bytwo legislative enactments: a 1971enactment creating the Bandera County River Authority,* and a 1989 enactment creating the Springhills Water Management District.3 Questions have arisen as to the qualifications required for an individual to serve as a director ofthe district. You ask whether qualifications to serve as district director include residing in the district or the relevant single-member district and owning taxable property in the district or the single-member district. See Request Letter, supra note 1,at 2. The two enactments creating the district were adopted pursuant to article XVI, section 59 of the Texas Constitution. See 

### TEX. CONST. art. XVI, $ 59 (authorizing the legislature to adopt laws creating conservation and reclamation districts with power to tax and incur debts). In 1971,the legislature created the Bandera County River Authority within part of Bandera County, granting it

all of the rights, powers, privileges, authority and duties conferred and imposed by the general laws ofthis state now in force orhereafter enacted, applicable towater control and improvement districts created

‘See Letter from James Chastain, President, Bandera County River Authority and Groundwater District, to Honorable Greg Abbott, Attorney General ofTexas (July 5,2005) (on tile with Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter].

*SeeAct ofMay 31, 1971,62d Leg., R.S., ch. 629, $0 1,5, 1971 Tex. Gen. Laws 2045, 2045-46 [hereinafter 1971 Act].

‘See Act ofMay 24, 1989, 71st Leg., R.S., ch. 654, $4 1,9, 1989 Tex. Gen. Laws 2155, 2156-57 [hereinafter 1989 Act].Mr. James Chastain - Page 2 (GA-0392)

under the authority. of Article XVI, Section 59 of the Texas Constitution; but to the extent that the provisions ofany such general laws may be inconflict orinconsistent with the provisions ofthis Act, the provisions of this Act shall prevail. All such general laws are hereby adopted and incorporated by reference with the same effect as ifincorporated in full in this Act. 1971 Act, supra note 2, $9 1, 5, at 2045-46. Section 9 ofthe 1971Act provided that the district’s powers “shall be exercised by aboard ofnine directors” named in the enactment and that successors would be appointed by the governor. See id. 59, at 2046. Section 9 also provided that “[n]o person shall be appointed a director unless such person is 21 years of age or over and aresident of the district and owns land therein.” Id. In 1989the legislature created anunderground water conservation district inBandera County subject to a confirmation election. See 1989 Act, supra note 3, $0 1,9 at 2155-57. The district, which included allthe territory in Bandera County, was named “the Springhills Water Management District” (the “Springhills District”).4 See id 9 1,at 2155. The following provision ofthe 1989 Act created the board of directors of the Springhills District and placed it in charge of both the Springhills District and the Bandera County River Authority:

All powers of the district shall be exercised by a board of nine directors composed of the persons who serve as directors of the Springhills Water Management District. Each director of the Springhills Water Management District serves on the board of directors of the Bandera County River Authority as an additional duty ofhis office as director ofthe water management district. Id. $ 12,at2157 (amending 1971Act, supranote 2,§ 9,at2046). The district’s directors are elected and serve on the Bandera County River Authority board pursuant to the 1989 Act. Thus, we look first to the 1989 Act for qualifications to serve as district director. The 1989 Act provides for electing two directors from each commissioners precinct and one at large. Id. 4 10, at 2157. It repealed the language of section 9 of the earlier statute requiring Bandera County River Authority directors to be appointed by the governor and providing that “[n]o person shall be appointed a director unless such person is 21 years of age or over and aresident of

4Thename “Springhills Water Management District ofBandera County” was changed to “Bandera County River Authority and Groundwater District” in2003 by order ofthe Texas Commission on Environmental Quality. See Request Letter, supra note 1,Exhibit 3 (Tex. Comm’n on Envtl. Quality, An Order Approving aRequest by Springhills Water Management District ofBandera County to Change itsName to Bandera County River Authority and Groundwater District (Apr. 10, 2003)); see also 30 TEX. ADMIN. CODE9 293.102 ‘(2005) (procedure for changing name of water district).Mr. James Chastain - Page 3 (GA-0392)

the district and owns land therein.” Id. $ 12, at 2157. The qualifications for office established by section 9 of the 1971 Act no longer apply. Neither the 1971Act asamended nor the 1989 Act establishes the qualifications ofadistrict director. However, the 1989 Act granted the district “all ofthe rights, powers, privileges, authority, functions, and duties provided by the general law ofthis state, including Chapters 50 and 52, Water Code, applicable to underground water conservation districts created under Article XVI, Section 59, of the Texas Constitution.” Id $ 6(a), at 2156. The 1989 Act “prevails over any provision of general law that is in conflict or inconsistent” with it. Id. We next look for the qualifications for directors ofthe district in the applicable Water Code provisions and other general laws that are not in conflict orinconsistent with the 1989 Act. In 1989, Water Code chapter 50governed the administration ofwater districts in general, and chapter 52dealt with underground water conservation districts. The Seventy-fourth Legislature reorganized and revised statutes concerning underground water conservation districts,5 placing them in Water Code chapter 36, and repealed chapter 52. See Act ofMay 29,1995,74th Leg., R.S., ch. 933, $52,6,1995 Tex. Gen. Laws 4673,4679-4701 (adopting Water Code chapter 36; repealing chapter 52). The same legislature repealed Water Code chapter 50 and adopted chapter 49, relating to the administration ofwater districts. See Act ofMay 25, 1995,74th Leg., R.S., ch. 715, $3 2,39, 1995 Tex. Gen. Laws 3755,3802. Water Code chapters 36 and 49 apply to the district to the extent they are not inconsistent with the special law provisions that govern it. Water Code section 49.002 provides as follows:

(a) Except asprovided by Subsection (b), this chapter applies to all general and special law districts

. . . . (b) This chapter does not apply to adistrict governed by Chapter 36 unless a special law creating the district or amending the law creating the district states that this chapter applies to that district. TEX.WATERCODE

ANN.$49.002(Vernon2000). Because the district’s directors are elected in their capacity as directors of a groundwater conservation district, we look atchapter 36for qualifications for office. Section 36.059 provides that

“[a]11elections shall be generally conducted in accordance with the Election Code except as otherwise provided for by this chapter.” Id. 6 36.059(a). We find no qualifications for office in chapter 36, only adisqualification for office that does not -applyin adistrict with apopulation ofless than 50,000. Therefore this chapter does not apply in the Bandera County River Authority and

“‘Groundwater conservation district” is the common name for “underground water conservation district.” See HOUSERESEARCH

ORGANIZATION,BILLANALYSIS, Tex. H.B. 2294,74th Leg., R.S. (1995) at 2.Mr. James Chastain - Page 4 (GA-0392)

Groundwater District.6 See id. $ 36.051(b) (Vernon Supp. 2005) (ineligibility of member of a governing body of another political subdivision for election as director). We turn to the Texas Election Code, which “applies to all general, special, and primary elections held in this state.” 

### TEX. ELEC. CODEANN. § 1.002(a) (Vernon 2003). Election Code section 141.OOlprovides as follows:

(a) To be eligible to be acandidate for, orelected or appointed to, apublic elective office in this state, aperson must: (1) be aUnited States citizen; (2) be 18years of age or older on the first day ofthe term to be filled at the election or on the date of appointment, as applicable; (3) have not been determined mentally incompetent by a final judgment of a court; (4) have not been finally convicted of a felony from which the person has not been pardoned or otherwise released from the resulting disabilities; (5) have resided continuously inthe state for 12months and in the territory from which the office is elected for six months immediately preceding the following date: (A) for acandidate whose name isto appear on ageneral primary election ballot, the date ofthe regular filing deadline for a candidate’s application for aplace on the ballot; (B) for an independent candidate, the date ofthe regular filing deadline for acandidate’s application for aplace on the ballot; (C) for a write-in candidate, the date of the election at which the candidate’s name is written in;

6The Bandera County population was 17,645 in2000. SeeBUREAUOFTHECENSUS, U.S.DEP’TOFCOMMERCE, 2000 Census OfPopulation, availableathttp://quickfacts.census.gov/qfd/states/48/48019.h~1 (State and County Quick Facts).Mr. James Chastain - Page 5 (GA-0392)

(D) for a party nominee who is nominated by any method other than by primary election, the date the nomination is made; and (E) for an appointee to an office, the date the appointment is made; and (6) satisfy anyother eligibility requirements prescribed bylaw for the office. Id. 6 141.001(a) (Vernon 2003). Section 141.OOl(a) answers the specific questions you ask. To be qualified for service as a district director, an individual must have resided continuously in the state for 12months and in the district and the single member precinct he seeks to represent for six months immediately preceding the applicable date set out in section 141.OO l(5). He isnot required to own taxable property within the district or single member precinct he seeks to represent. Of course, he must satisfy any other eligibility requirements prescribed by law.Mr. James Chastain - Page 6 (GA-0392)

SUMMARY Election Code section 141.OO 1(a) states the qualifications for serving as director of the Bandera County River Authority and Groundwater District. To be qualified for serving asadirector ofthe district, an individual must have resided continuously in the state for 12months and inthe district and the single member precinct he seeks torepresent for six months immediately preceding the applicable date set out in the Election Code provision. He is not required to own taxable property within the district or single member precinct he seeks to represent. Very truly yours,

BARRY R. MCBEE First Assistant Attorney General NANCY S. FULLER Chair, Opinion Committee Susan L. Garrison Assistant Attorney General, Opinion Committee