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DAN MORALES July 13,199Z ATTORNEYGENERAL 

Honorable D. R. ‘Tom” Uher 

Chairman 

Committee on Redistricting 

Texas House of Representatives 

P. 0. Box 2910 

Austin, Texas 78768-2910 

Opinion No. DM-140 

Re: The status of the West Braxoria 

County Drainage District, and related 

questions (RQ-326) 

Dear Representative Uher: 

You have requested our opinion regarding the current status of the West 

Braxoria County Drainage District. That district was created pursuant to article 

XVI, section 59 of the Texas Constitution by a special law enacted in 1969. House 

Bill 273, Acts 1969, 61st Leg., ch. 48, at 139-44, designated the commissioners court 

of Braxoria County “as the governing body of [the] district.” In 1981, the statute was 

amended to provide for “a board of directors composed of five members who shall 

be elected from single-member districts to serve for staggered terms of two years 

and until their successors are elected and have qualified for office.” S.B. 21, Acts 

1981, 67th Leg., 1st C.S., ch. 6, at 58-63. The 1981 legislation directed the existing 

governing board, the commissioners court, “[wlithin 90 days after the effective date 

of this Act,” to “adopt an order establishing the boundaries and numbers for singlemember board districts.” Id. 8 6(a), at 62. The board was also enjoined to “call and 

hold an election on the first Saturday in April 1982, to elect five members to the 

board.” Za! You indicate that the commissioners court has never taken any action 

to implement the requirement of section 6 for establishing single-member districts 

or for holding an election. You ask whether the commissioners court is at present 

“the legally authorized body to act for said drainage district.” 

Senate Bill 21 provides, in pertinent part: 

The commissioners court serving as the governing board of 

the West Brazoria County Drainage District on the effective 

date of this Act shall continue in office and shall exercise the 

powers and duties and perform the functions of the board of 

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directors of the district until the first elected board members 

have qualified for office. 

. . . . 

The pe.rsons serving on the board of directors of the West 

Brazoria County Drainage District on the effective date of this 

Act shall cominue in office and shall exercise the powers and 

duties and perform the functions of board members tmtil the 

first elected board members have qualified for office.. . . 

Id OQ 5,6(b), at 62. Since section 6 of the 1981 legislation was never implemented, 

in that neither an order establishing single-member districts nor an order calling for 

an election to select board members was ever issued, the statute makes clear that 

“the commissioners court serving as the governing board” of the district has 

continued to function as the governing board since 1981. Although the statute 

permits some ambiguity, since it speaks of “the commissioners court serving as the 

governing board . . . on the effective date if this Act,” and of “[t]he persons serving 

ontheboardofdirectors... on the effective date of this Act,” we believe that it was 

the intent of the legislature to constitute the individual commissioner pa&onr, 

rather than the specificpersonr who held those positions on August 14,1981, as the 

holdover board for the district. Thus, it is the present commissioners court of 

Brazoria County, rather than the commissioners court as it existed on August 14, 

1981, that makes up the current board of the district. 

You also ask whether the commissioners court may establish a tax rate for 

the district and call an election for its approval. You indicate that in 1969 the 

affected electorate “voted for the creation of said drainage district but turned down 

all taxing authority. 

Section 5 authorizes the governing board to “levy and cause to be collected a 

tax not exceeding 10 cents on each SlOO valuation of taxable property subject to 

district taxation within the district.” Such tax may not be levied or assessed, 

~however, “until authorized at an election called for such purpose by said board, in 

the manner provided by Section 4, hereof, at which a majority of the qualified 

electors . . . vote in favor of the levy and collection of such tax.” Id. 0 5, at 59. 

Nothing in the statute prohibits the governing board from setting a tax rate and 

cdling an election merely because a prior election has resulted in disapproval of the 

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tax. We conclude, therefore, that the commissioners court, as the current governing 

board of the district, may establish a tax rate and call an election for its approval. 

Your last question is whether the commissioners court may “establish single 

member districts for the election of drainage commissioners without further 

legislation beii passed.” Certainly, the commissioners court, acting as the current 

board, may not do so pursuant to section 6(a) of Senate Bill 21, since that provision 

sets the election for the Crst Saturday in April 1982. Section 2 of Senate Bill 21, 

however, provides, in pertinent part: 

After each decennial census, the board shall divide the area 

of the district into five single-member districts that are compact, 

contiguous, and as nearly equal in population as is 

practicable. . . . 

An election shall be held in the district on the first Saturday 

in April of each year to elect the appropriate number of 

members to the board. 

Id 8 2(c), (d), at 58. Ordinarily, we might be constrained to construe subsections 

2(c) and 2(d) in harmony with subsection 6(a) to infer that the redistricting and 

election provisions of the statute were intended to be applicable only to the election 

contemplated for April 1982. Since the enactment of Senate Bill 21, however, a new 

“decennial census” has been held, and the results thereof armounced, so that it 

seems reasonable to require whatever “board” exists to comply anew with the 

requirements of subsections 2(c) and 2(d). As we have stated, the current “board” is 

the commissioners court of Brazoria County. Accordingly, the board is in a position 

to, and, in our opinion, is commanded, to comply with those requirements by 

dividing the area into “five single-member districts” based on the 1990 census, and 

calling an election for the first Saturday in April 1993, to fill the directorships from 

those districts. 

SUMMARY 

The commissioners court of Brazoria County at present 

constitutes the governing board of the West Brazoria County 

Drainage District. As such, it may set a tax rate and call an 

election to seek voter approval therefor. The commissioners 

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court, acting as the board, should establish single-member 

districts based on the 1990 census, and call an election for the 

first Saturday in April 1993. 

DAN MORALES 

Attorney General of Texas 

WILL PRYOR 

First Assistant Attorney General 

MARYKELLER 

Deputy Assistant Attorney General 

RENEAHIcK!s 

Special Assistant Attorney General 

MADBLEINE B. JOHNSON 

Chair, Opinion Committee 

Prepared by Rick Gilpin 

Assistant Attorney General 

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