KEN PAXTON 

ATTORNEY GENERAL OF TEXAS 

October 18, 2016 

The Honorable Jim Keffer Opinion No. KP-0117 

Chair, Committee on Natural Resources 

Texas House of Representatives Re: Whether an appointing member city's 

governing body may 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 of the North Texas Municipal 

Water District (District) may remove or replace a director it has appointed to the District's Board 

of Directors at its discretion, and with or without cause, during such director's term." 1 The District 

is a conservation and reclamation district created by special law pursuant to the authority of article 

XVI, section 59 of the Texas Constitution.2 The District is governed by a board of directors, each 

member of which 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 or two District board 

members, depending on its population, "in May of each" appropriate year.3 Id. The District's 

governing legislation expressly provides for the replacement of a board member only at the end of 

his or her term, providing that"[ e ]ach director shall serve for his term of office 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"). 

2

See Act of Apr. 4, 1951, 52d Leg., R.S.,'ch. 62, § 1, 1951 Tex. Gen. Laws 96, 96 ("Enabling Act"), amended 

by Act of Apr. 24, 1969, 61 st Leg., R.S., ch. 122, 1969 Tex. Gen. Laws 334, 334; Act of Apr. 23, 1975, 64th Leg., 

R.S., ch. 90, 1975 Tex. Gen. Laws 238, 238; Act of Apr. 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 of conservation and reclamation districts). 

3

Cities with a population of 5,000 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 staff member, among other things, to "call for the appointment of 

new directors by the member cities of the district to fill the vacancies on the board resulting from the catastrophe or 

disaster." Act of Apr. 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 of a director. 5 

See Act of Apr. 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 of the Water Code).6 Thus, no provision expressly authorizes 

the removal of a District director prior to the end of the 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 of his or her 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 of maintaining the board position filled for the 

duration of the 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 extent that 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 to remove a 

director, with or without cause, prior to the end of the director's term. 

Through briefing submitted to this office, representatives of several home-rule member 

cities refer to the inherent authority of a 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 city has the "full power of selfgovernment" and looks to the Legislature "not for grants of power, but only for limitations on" 

that power); Town of Lakewood Village v. Bizios, 2016 WL 3157476, at *2 (Tex. 2016) (providing 

that "statutory limitations on home-rule municipal authority are ineffective unless they appear with 

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 or replacement of a director prior to the end of 

5Subsection 49.052(g) of the Water Code, generally applicable to all water districts and providing for removal 

of a board member "only" for a specific cause, does not apply to the District. TEX. WATER CODE§ 49.052(g); id 

§ 49.00 I (a)(I) (excluding the District, as a "conservation and reclamation district created pursuant to Chapter 62, Acts 

of the 52nd Legislature" from the definition of"district" for purposes of chapter 49). 

6Chapter 5 of the Water Code governs the Texas Commission on Environmental Quality. See generally TEX. 

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 of water district board members. 

Chapter 50 of the Water Code was repealed in 1995. See Act of May 25, 1995, 74th Leg., R.S., ch. 715, § 39, 1995 

Tex. Gen. Laws 3755, 3802. 

7

See Brief submitted 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'); Brief from 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 Brief at 3; McKinney Brief at 5-6. 

In addressing a similar question, this office previously concluded that the City of Garland 

lacked authority to remove one of its appointed representatives to the District board prior to the 

end of the director's term. In reaching this conclusion, JM-1239 emphasized that a District director 

is not a municipal officer but, rather, "an officer of the district, who happens merely to 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 of its own 

officers, such authority does not necessarily extend to the removal of a District director prior to 

the end of the director's term. 

The briefers also urge us to apply the reasoning in Barnett v. City of Plainview to the present 

facts. 8 In that case, a court concluded that a home-rule city's power to appoint a municipal judge 

includes "the implied power to remove the judge if his performance is unsatisfactory" because the 

objective of the appointment power is "to establish the office and the 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 the Barnett court acknowledged, the municipal judge in that 

case "was an officer and employee of the City." Id. at 336; see also TEX. Gov'T CODE§ 29.004(a) 

(providing that a municipal judge in a home-rule city is "selected under the municipality's charter 

provisions relating to the election or appointment of judges"). Ip contrast, member cities of the 

District do not establish the District board or the directors' qualifications for office. The 

Legislature does. Thus, the reasoning of Barnett does not apply to the question at issue. 

8

See Collective Brief at 3; McKinney Brief at 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 prior to the end of a 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 of the 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 of Texas 

Assistant Attorney General, Opinion Committee