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Msch 29, 1988 

.mx MA- 

‘VrToRNPY GENERAL 

Honorable H. Tati Santiesteban Opinion No. JR-877 

Chairman 

Committee on Natural 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 a different geographic area of the state. A now-repealed statute divided 

the state into three Texas Water Divisions which corresponded approximately to the east, south, and west of the 

state. Acts 1913, 33d Leg.: Tex. Gen. Laws, ch. 171, §6; 

see Acts 1967, 60th Deg., ch. 360, 52 (repealer). The 

former law stated as follows: 

The members of said Commission shall be 

appointed by the Governor. . . . Each shall 

be a citizen of this State and a bona fide 

resident of the water division from which he 

is appointed. 

Acts 1962, 57th Leg., 3d C.S., ch. 4, at 10; see also Acts 

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 h eat 

fro different section of th 

(Bmihaiis added.) 

e state. 

Acts 1965, 59th Deg., ch. 296, 53, at 583-84. This 

language is now codified in section 5.052 of the Water 

Code: 

p. 4283 
Honorable H. Tati Santiesteban - Page 2 (JW-877) 

(a) The commission is composed of three 

members who are appointed by the governor 

with the advice and consent of the senate. 

(b) The governor shall make the appointments in such a manner that each member is 

from a different section of the state. 

Water Code 55.052. 

You ask whether present law requires each Water 

Commissioner to be appointed from one of the three water 

divisions or otherwise requires commission members to 

represent diverse geographic areas of the state. To 

answer your question, we must determine the legislative 

intent expressed in the language of section 5.052(b) of 

the Water Code, which was enacted in 1965. 

A brief 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 the Water 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 in rotation by 

member areas. 

Texas Research League, A Revert to the Texas Water Commission and the Texas Water Develowment Board: The Structure and Authoritv or Stat Leadershio of Water DevelooDent 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 as a basis for 

appointment to the Texas Water Rights ComnLssion.n Texas 

Research League, A Reuort to the Texas Water Commission 

and the Water Develonment Board. . Water Riahts and Water . . 

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

[PIresent members 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 of Dallas, Fort Worth 

and Houston and many other metropolitan 

centers, includes more than two-thirds of 

p. 4284 
Honorable H. Tati Santiesteban - Page 3 04-877) 

rc- 

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the State's total population. In its role 

as an administrator of water rights, the 

Texas Water 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 Bill No. 145, as introduced, eliminated all 

geographical qualifications for the commission. Bill 

File on Senate Bill No. 145, 59th Leg., R.S. (1965) (Texas 

State Archives). A committee substitute adopted by the 

Senate Committee on Water and Conservation and then by the 

Senate as a whole included the language providing that 

each member be from a different section of the state. Id. 

The House reinstated the requirement that one member be 

appointed from each of the water divisions. Id.; H.J. of 

Tex., 59th Leg., R.S., 1782 (1965). The Senate refused to 

concur in the House amendment and requested the appointment of a conference 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 Bill No. 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 a different 

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 

from different sections of the state. Legislative changes 

in the language of statutes generally indicate an 

intention to change meaning, and they must be given effect 

as such. zndeoendent Life Insurance C v. Work, 77 S.W.2d 

1036 (Tex. 1934); & ., 37 S.W.Zd 

714 (Tex. 1931). 

By repealing the old provision requiring residency in 

a statutorily-defined district and substituting a provision that each commissioner be from a different 

nsectionO1 of the state, the legislature departed from the 

former rigid residency requirement. Its use of the 

p. 4285 
Honorable H. Tati Santiesteban - Page 4 (JM-877) 

undefined term wsection" had the effect of destroying 

mandatory residency requirement. Vection,w as defined 

the dictionary, is 

a distinct pa* of a territorial or 

political area. . . . 

Webster's Ninth New Collegiate Dictionary. This is the 

sense in which qqsectionH is used in Senate Bill No. 145. 

It is a geographical area, but one so indefinite in 

location and extent that it cannot be the basis of an 

enforceable residency requirement or other method of 

ensuring geographical distribution. A provision that 

is essentially indefinite, uncertain, and vague is 

ineffective and void. &me S ar as Co. v. 

gQ+y,.165 S.W.2d 446,w942); SEate z. H umble 

piDe Line Co., 247 S.W. 1082, 1085 (Tex. 1923). 

In our opinion, section 5.052(b) of the Water Code 

does not establish a valid, enforceable requirement that 

water commissioners reside in different geographical areas 

of the state, and it need not be followed. It can be 

construed as an expression of the legislature's wish, not 

its command, that the governor 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. 

153 provides in part: 

WHEREAS, Senate Bill 145 requires the 

Governor to appoint each of the three 

Commissioners from a different section of 

the State; now, therefore, be it 

RESOLVED by the House of Representatives, 

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 a resolution. Terre11 Wells Swimmina Pool V. 

Rodriauez, 182, S.W.2d 824 (Tex. Civ. APP. - San Antonio 

p. 4286 
. 

Honorable H. Tati Santiesteban - Page 5 (JM-877) 

1944, no writ); &H&Q 1 104 

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 is no longer any 

requirement that each member of the Texas Water Commission 

represent a different geographical area of the state. 

In view of our conclusion that there is no such requirement, we need not answer your questions that depend 

upon a contrary conclusion. 

SUMMARY 

Section 5.052 of the Water Code, which 

provides that the governor shall appoint 

members of the Water Commission so that 

"each member is from a different section of 

the state" does not establish an enforceable 

requirement and need not be followed. 

Very truly y s, Lb a 

JIM MATTOX 

Attorney General of Texas 

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 

p. 4287