- Msch 29,1988 .mx MA- ‘VrToRNPYGENERAL

Honorable H. Tati Santiesteban Opinion No. JR-877 Chairman Committee onNatural Resources Re: Procedure for appointTexas State Senate ment of members of the P. 0. BOX 12068 Texas Water Commission Austin, Texas 78711 (RQ-1221)
Dear Senator Santiesteban:

P you ask whether each of the three members of the

Texas Water Commission must represent adifferent geographic area of the state. Anow-repealed statute divided the state into three TexasWater Divisions which corresponded approximately to the east, south, andwest of the state. Acts 1913, 33dLeg.: Tex. Gen. Laws, ch. 171, §6; see Acts 1967, 60th Deg., ch. 360, 52 (repealer). The former law stated as follows:

Themembers of said Commission shall be appointed by theGovernor. . . . Each shall be acitizen of this State and abona fide resident of thewater division fromwhich he isappointed.
Acts 1962, 57th Leg., 3dC.S., ch. 4,at 10; see alsoActs 1913, 33d Leg., Tex. Gen. Laws, ch. 171, 57, at 359.
In 1965, the legislature enacted Senate Bill No. 145 which deleted the language requiring the appointment of one commissioner from each of the water divisions and adopted the following language:

Members of the Commission shall serve on a full-time basis and eat h fro different section of th (Bmihaiis added.) e state.

Acts 1965, 59th Deg., ch. 296, 53, at 583-84. This language isnow codified in section 5.052 of the Water Code:

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(a) The commission iscomposed of three members who are appointed by the governor with the advice and consent of the senate. (b) The governor shallmake the appointments insuch a manner that each member is fromadifferent section of the state.
Water Code 55.052.
You ask whether present law requires each Water Commissioner tobe appointed fromone of the three water divisions or otherwise requires commission members to represent diverse geographic areas of the state. To answer your question, wemust determine the legislative intent expressed in the language of section 5.052(b) of theWater Code, which was enacted in 1965.
Abrief submitted by the Texas Water Commission refers to a study of the statejs water administration system prepared for the Water Commission, the Water Development Board, and theWater Pollution Control Board just prior to the 1965 legislative session. The report, prepared by the Texas Research League, criticized the tendency of some state commissions

to function along regional lines and to program capital contributions inrotation by member areas.
Texas Research League, ARevert to the Texas Water Commission and the TexasWater Develowment Board: The Structure andAuthoritv or Stat Leadershio ofWater Develoo

### Dent In TexaS 23f (1965): regional repre;entation be The report suggested that left to the legislature where major state investments were involved. & The portion of the report on commission organization recommended "that the geographical districts be eliminated asabasis for appointment to the TexasWater Rights ComnLssion.n Texas Research League, A Reuort to the Texas Water Commission and theWater Develonment Board. . Water Riahts andWater

. . Resource Adwstration, 31 (1965). It stated as follows:

[PIresentmembers are selected on the basis of geographical districts delineated in 1917, and those districts are now badly out of balance in terms of proportional representation. The East Texas district, containing the cities ofDallas, Fort Worth and Houston and many other metropolitan centers, includes more than two-thirds of

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- the State's total population. In its role asan administrator ofwater rights, the TexasWater Rights Commission would not be concerned with the promotion of water development which might favor one region as opposed to another. Recommendations from this report were incorporated in legislation introduced during the 1965 legislative session. S.B. NO. 14.5, S.B.No. 146, Acts 1965, 59th Leg., chs. 296, 297.
Senate BillNo. 145, as introduced, eliminated all geographical qualifications for the commission. Bill File on Senate BillNo. 145, 59th Leg., R.S. (1965) (Texas State Archives). A committee substitute adopted by the Senate Committee onWater andConservation and then by the Senate as awhole included the language providing that eachmember be fromadifferent section of the state. Id. The House reinstated the requirement that onemember be appointed from each of thewater divisions. Id.; H.J. of Tex., 59th Leg., R.S., 1782 (1965). The Senate refused to concur inthe House amendment and requested the appointment ofaconference committee. S.J. of Tex., 59th Leg., R.S., 1231-32 (1965). The conflict between the Senate provision and the House provision was resolved in favor of the Senate. The Conference Committee bill included the present language providing that each member be from a different section of the state. S.J. of Tex. 59th Leg., R.S. 1870 (1965). This history of Senate BillNo. 145 shows that the House was reluctant to approve the Senate's changes in the appointment provision, while the Senate refused to continue to require each member to reside in adifferent water division. The actions of the legislature which adopted this bill show that there was a significant difference between the old language on appointment from water divisions and the new language on appointees being fromdifferent sections of the state. Legislative changes in the language of statutes generally indicate an intention to change meaning, and theymust be given effect as such. zndeoendent Life Insurance C v.Work, 77 S.W.2d 1036 (Tex. 1934); & .,37S.W.Zd 714 (Tex. 1931). By repealing the oldprovision requiring residency in astatutorily-defined district and substituting a provision that each commissioner be from a different nsectionO1of the state, the legislature departed from the former rigid residency requirement. Its use of the

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undefined term wsection" had the effect ofdestroying mandatory residency requirement. Vection,w asdefined the dictionary, is

a distinct pa* of a territorial or political area. . . . Webster's Ninth New Collegiate Dictionary. This is the sense inwhich qqsectionHis used inSenate Bill No. 145. It is a geographical area, but one so indefinite in location and extent that itcannot be the basis of an enforceable residency requirement or other method of ensuring geographical distribution. A provision that isessentially indefinite, uncertain, and vague is ineffective andvoid. 

### &me Sar as Co.v. gQ+y,.165 S.W.2d 446,w942); SEate z. Humble piDe Line Co., 247 S.W. 1082, 1085 (Tex. 1923).
Inour opinion, section 5.052(b) of theWater Code does not establish avalid, enforceable requirement that water commissioners reside indifferent geographical areas of the state, and it need not be followed. It can be construed asan expression ofthe legislature's wish, not itscommand, that thegovernor give some consideration to geographical distribution in appointing Water Commissioners.
The legislature which enacted Senate Bill No. 145 adopted a resolution its intent as to the provision in question.exp;ii=ing Concurrent Resolution No. 153provides inpart:

WHEREAS, Senate Bill 145 requires the Governor to appoint each of the three Commissioners from adifferent section of the State; now, therefore, be it
RESOLVED by theHouse ofRepresentatives, the Senate concurring, That the intent of the Legislature is that the Governor in making future appointments to the-CommisSion shall insofar as oossible maintain the Commission with members appointed from the Eastern, Western and Southern areas of the State. (Emphasis added.)
Acts 1965, 59th Leg., at 2171.
A statute cannot be amended, repealed, or otherwise modified by aresolution. Terre11 Wells Swimmina Pool V. Rodriauez, 182,S.W.2d 824 (Tex.Civ. APP. -San Antonio

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1944, nowrit); &H&Q1 104 S.W.Zd 174 (Tex. Civ.App. -Austin 1936,writ rek#d);

v.Rou Antonio 1935, 79 S.W.2d 672 (Tex.Civ. App. -San writ dism'd w.0.j.); Attorney General Opinion Nos. M-1261 (1972);WW-345 (1958). In saying that the governor shall winsofar as possibleI* maintain a particular geographical distribution of commission members, House Resolution 153 expresses the legislature's preference, but leaves implementation of this preference to the governor's sole discretion. There isno longer any requirement that eachmember of the Texas Water Commission represent adifferent geographical area of the state.
Inview ofour conclusion that there isno such requirement, we need not answer your questions that depend upon a contrary conclusion.
SUMMARY Section 5.052 of theWater Code, which provides that the governor shall appoint members of the Water Commission so that "eachmember is fromadifferent section of the state" does not establish an enforceable requirement andneed notbe followed. Very truly y s, 

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JIM MATTOX Attorney General ofTexas
MARYNELLER First Assistant Attorney General
LOU MCCREARY Executive Assistant Attorney General
JUDGE ZOLLIE STEAXLEY Special Assistant Attorney General
RICK GILPIN Chairman, Opinion Committee Prepared by Susan L.Garrison Assistant Attorney General

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