## KEN PAXTON ATTORNEY GENERAL OF TEXAS



### October 18, 2016

The Honorable Jim Keffer Opinion No. KP-0117 Chair, Committee on Natural Resources Texas House ofRepresentatives Re: Whether an appointing member city's governing bodymay remove a director it has appointed to the North Texas Municipal Water District (RQ-0106-KP) Post Office Box 2910 Austin, Texas 78768-2910

Dear Representative Keffer: You ask "whether the governing body of a member city ofthe North Texas Municipal Water District (District) may remove or replace a director it has appointed to the District's Board ofDirectors at its discretion, and with or without cause, during such director'sterm." 1 

### The District is a conservation and reclamation district createdby special lawpursuant to the authority ofarticle XVI, section 59 ofthe Texas Constitution.2 

### The District is governed by a board ofdirectors, each member ofwhich is appointed to a two-year term by a member city within the District's territory. See 

### Enabling Act§§ 3(a), 6 at 97, 99. Each member city appoints either one ortwo District board members, depending on its population, "in May ofeach" appropriate year. 3 Id. 

### The District's governing legislation expressly provides for the replacement ofa board member only at the end of his orherterm, providing that"[e]achdirector shall serve for his term ofoffice as herein provided, and thereafter until his successor shall be appointed and qualified."4 Id. 

### § 3(a) at 97. Other la"'.

1 See Letter from Honorable Jim Keffer, Chair, House Comm. on Nat. Res., to Honorable Ken Paxton, Tex. Att'y Gen. at I (Apr. 11, 2016), https://www.texasattomeygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").

2See Act ofApr. 4, 1951, 52d Leg., R.S.,'ch. 62, § 1, 1951 Tex. Gen. Laws 96, 96 ("Enabling Act"), amended by Act ofApr. 24, 1969, 61 st Leg., R.S., ch. 122, 1969 Tex. Gen. Laws 334, 334; Act ofApr. 23, 1975, 64th Leg., R.S., ch. 90, 1975 Tex. Gen. Laws 238, 238; Act ofApr. 28, 2009, 81 st Leg., R.S., ch. 20, 2009 Tex. Gen. Laws 37, 37; see also TEX. CONST. art. XVI,§ 59(b) (authorizing the creation ofconservation and reclamation districts).

3Cities with a population of5,000 or more may appoint two directors to staggered terms, while cities with a population ofless than 5,000 may appoint one director. Enabling Act§§ 3(a), 6 at 97, 99.

4Legislation enacted in 2009 addresses the lack of a quorum during a catastrophe or disaster, authorizing available directors or the highest ranking District staffmember, among other things, to "call for the appointment of new directors by the member cities ofthe district to fill the vacancies on the board resulting from the catastrophe or disaster." Act ofApr. 28, 2009, 81 st Leg., R.S., ch. 20, § 5, 2009 Tex. Gen. Laws 37, 40.The Honorable Jim Keffer

- Page 2 (KP-0117)

made applicable to the District does not address either the removal or replacement ofa director.5 See Act ofApr. 23, 1975, 64th Leg., R.S., ch. 90, § l(d), (n), 1975 Tex. Gen. Laws 238, 239, 241 (making the Regional Waste Disposal Act applicable to the District and requiring that the District comply with chapters 5, 6, and 50 ofthe Water Code). 6 Thus, no provision expressly authorizes the removal ofa District director priorto the end ofthe director's term. Finding no such express authority, we consider to what extent the District's Enabling Act implies the authority for a city to remove a District director before the end ofhis orher term. The Enabling Act directs member cities to appoint a District director who will "serve for his term of office" and continue serving "thereafter" until a successor is appointed and qualified. Enabling Act§ 3(a) at 97. Based on the Legislature's goal ofmaintaining the board position filled for the duration ofthe director's term and until a successor can take over, a court would likely conclude that member cities have the implied authority to fill a vacancy occurring prior to the end of a director's term. However, to the extentthat a sitting director is able to serve until his successor is appointed and qualified, wefind no authority from which could be impliedthe powerto remove a director, with orwithout cause, priorto the end ofthe director's term. Through briefing submitted to this office, representatives of several home-rule member cities refer to the inherent authority ofa home-rule city to adopt and enforce ordinances that do not conflict with the Texas Constitution or State law. 7 See TEX. CONST. art. XI, § 5(a); In re Sanchez, 81 S.W.3d 794, 796 (Tex. 2002) (noting that a home-rule cityhasthe "fullpowerofselfgovernment" and looks to the Legislature "not for grants ofpower, but only for limitations on" thatpower); Town of Lakewood Village v. Bizios, 2016 WL 3157476, at *2 (Tex. 2016) (providing that "statutory limitations onhome-rule municipal authority are ineffectiveunlessthey appearwith unmistakable clarity, and even when they do, a municipality's ordinance is only unenforceable to the extent it conflicts with" state law (quotation marks omitted)). The briefers assert that the Enabling Act's silence with regard to the removal orreplacement ofa director prior to the end of

5Subsection 49.052(g) ofthe WaterCode, generally applicableto all water districts andprovidingfor removal ofa board member "only" for a specific cause, does not apply to the District. TEX. WATER CODE§ 49.052(g); id §49.00I(a)(I) (excluding the District, as a "conservation and reclamation district created pursuant to Chapter 62, Acts ofthe 52nd Legislature" from the definition of"district" for purposes ofchapter49).

6Chapter5 ofthe Water Code governs the Texas Commission on Environmental Quality. SeegenerallyTEX. WATER CODE§§ 5.001-.807. Chapter 6 of the Water Code governs the Texas Water Development Board. See generally id §§ 6.001-.247. Neither chapter addresses the removal or replacement ofwater district board members. Chapter 50 ofthe Water Code was repealed in 1995. See Act ofMay 25, 1995, 74th Leg., R.S., ch. 715, § 39, 1995 Tex. Gen. Laws 3755, 3802.

7 See Briefsubmitted collectively from Mr. Richard Abernathy, Mr. Brad Neighbor, Mr. BJ Smith, Ms. Paige Mims, Mr. Peter G. Smith, Mr. Francisco J. Garza, and Mr. Jason Day (city attorneys for the home-rule cities of Frisco, Garland, Mesquite, Plano, Richardson, Rockwall, and Royse City, respectively) at 2 (May 20, 2016) ("Collective Brief'); Brieffrom Mr. Mark Houser, McKinney City Att'y at 2 (May 20, 2016) ("McKinney Brief) (briefs on file with the Op. Comm.).

### The Honorable Jim Keffer

- Page 3 (KP-0117)

his or her term permits a home-rule city to remove a director through the city's charter or ordinances. Collective Briefat 3; McKinney Briefat 5-6. In addressing a similar question, this office previously concluded that the City ofGarland lacked authority to remove one ofits appointed representatives to the District board prior to the endofthe director'sterm. Inreachingthis conclusion, JM-1239 emphasizedthat aDistrictdirector is not amunicipal officerbut, rather, "anofficerofthe district, who happens merelyto be appointed by the city council." Tex. Att'y Gen. Op. No. JM-1239 (1990) at 3 (emphasis omitted). Thus, while a home-rule municipality may have broad authority with regard to the removal ofits own officers, such authority does not necessarily extend to the removal ofa District director prior to the end ofthe director's term. Thebriefers also urge us to applythereasoninginBarnettv. City of Plainview

### to thepresent facts. 8 

### In that case, a court concluded that a home-rule city's power to appoint a municipaljudge includes "the implied power to remove thejudge ifhis performance is unsatisfactory" because the objective ofthe appointmentpoweris "to establishthe office andthe qualifications for a competent person to fill that office." Barnett v. City of Plainview, 

### 848 S.W.2d 334, 340-41 (Tex. App.- Amarillo 1993, no writ). However, as theBarnett

### court acknowledged, the municipaljudgeinthat case "was an officer and employee ofthe City." Id. 

### at 336; see also 

### TEX. Gov'TCODE§ 29.004(a) (providing that a municipaljudge in a home-rule city is "selected underthe municipality's charter provisions relating to the election or appointment ofjudges"). Ip contrast, member cities ofthe District do not establish the District board or the directors' qualifications for office. The Legislature does. Thus, the reasoning ofBarnett 

### does not apply to the question at issue.

8See Collective Briefat 3; McKinney Briefat 5.

### The Honorable Jim Keffer

- Page 4 (KP-0117)

SUMMARY A court would likely conclude that member cities of the North Texas Municipal Water District ("District") have implied authority to fill a vacancy occurring on the District's board of directors priorto the end ofa director's term to the extent that doing so is necessary to maintain the position filled. But if a sitting director is able to serve until his successor is appointed and qualified, we find no authority from which could be implied the power of a member city to remove a District director, with or without cause, prior to the end ofthe director's term.

JEFFREY C. MATEER First Assistant Attorney General , BRANTLEY STARR Deputy First Assistant Attorney General VIRGINIA K. 

### HOELSCHER Chair, Opinion Committee BECKY P. CASARES Very truly yours,

KEN PAXTON Attorney General ofTexas

Assistant Attorney General, Opinion Committee