The Honorable Gary L. Walker

Chair, Committee on Land and Resource Management Texas House ofRepresentatives P. 0. Box 2910 Austin, Texas 78768-29 10 OFFICE ofthe ATTORNEYGENERAL

GREG ABBOTT

December 17,2002

Opinion No. GA-0001

Re: Legal effects of groundwater conservation district election held in Bosque, Comanche, and Erath counties (RQ-05 57-JC)

Dear Representative Walker:

You ask the status of a county that elects to join the Middle Trinity Groundwater Conservation District, but does not vote to grant taxing authority to the district.’ As we read the act that created the district, that county is apart of the district. See Act of May 25, 2001, 77th Leg., R.S., ch. 1362,200l Tex. Gen. Laws 3371. However, the question ofwhether the district has taxing authority has not been resolved and cannot be resolved until the district as awhole has been polled. In the event that amajority of the district’s voters generally approve the levying of amaintenance tax, then such a tax may be imposed upon the district as a whole. Moreover, whether certain counties “have expressed their desire to never call an election,” see Request letter, supra note 1,at 2, is irrelevant. The act creating the district requires that “[tlhe temporary board of directors shall call and hold an election in each county in the district to confirm establishment of the district and to elect initial directors to represent the county.” Act ofMay 252001, 77th Leg., R.S., ch. 1362, 8 10(a), 2001 Tex. Gen. Laws 3371,3372 (House Bill 3665) (emphasis added).

The district isagroundwater conservation district established pursuant to article XVI, section 59 ofthe Texas Constitution. Article XVI, section 59 declares the conservation and development of Texas’s natural resources, including its water, to be a public right and duty; authorizes the creation of “such number of conservation and reclamation districts as may be determined to be essential” to the fulfillment of that duty; and allows the legislature to authorize amaintenance tax provided that “such proposition shall first be submitted to the qualified voters

.. .and

. ..adopted.” TEX. CONST. art. XVI, 8 59(a)-(c). The district was created by special law as a groundwater conservation district subject to a confirmation election “in Bosque, Callahan, Cot-yell, Eastland, Erath, Somervell, Comanche, and Hamilton counties” by House Bill 3665 of the Seventy-seventh

‘See Letter from Honorable Gary L. Walker, Chair, Committee on Land and Resource Management, to Honorable John Cornyn, Texas Attorney General (May 23,2002) (on file with Opinion Committee) [hereinafter Request Letter].

An Equal Employment Opportunity Employer Printed on Recycled PaperThe Honorable Gary L. Walker - Page 2 (GA-0001)

Texas Legislature. Act of May 25,2001,77th Leg., R.S., ch. 1362, 5 l(a), 2001 Tex. Gen. Laws 3371. The act states:

The district has all of the rights, powers, privileges, authority, functions, and duties provided by the general law of this state, including Chapter 36, Water Code, applicable to groundwater conservation districts created under Section 59, Article XVI, Texas Constitution.

Id. 85.

A confirmation election is required by section 10 of the act. See id. Q10, at 3372. If the creation ofthe district isnot confirmed before September 1,2003, the actcreating the district expires

on that date. See id. 8 14(b). Such an election need not be held on auniform date, but otherwise “must be conducted as provided by Sections 36.017(b)-(h), Water Code, and the Election Code.” Id. 5 10(d). The statute contemplates the possible imposition ofamaintenance tax, see id. 8 12,2but its election provisions speak only of a confirmation and initial election of directors, the sole provision for a maintenance tax proposition being made by reference to the provisions of article 36.017 of the Water Code. See id. Q10(d).

Before its amendment by the Seventy-seventh Legislature, section 36.017(d) of the Water Code provided that the ballot language for the confirmation election include both the confirmation of the district and the authorization to levy the tax as part of a single proposition. See Act ofMay 29,1995,74th Leg., R.S., ch. 933,s 2,sec. 36.017(d), 1995Tex. Gen. Laws 4673,4682. Under that system, itwould not have been possible to vote simultaneously infavor ofthe creation ofthe district yet against the maintenance tax. However, Senate Bill 2ofthe Seventy-seventh Legislature revised section 36.017(d) so that the two propositions became independent of each other and added subsection (i), which provides:

Ifamajority ofthe votes cast atthe election are against the levy of a maintenance tax, the district shall set production fees to pay for the district’s regulation of groundwater in the district, including fees based on the amount ofwater to be withdrawn from awell.



### TEX. WATER CODEANN.0 36.017(i) (Vernon Supp. 2003) (emphasis added).

In the instant case, confirmation elections have been held in three ofthe counties that were, pursuant to House Bill 3665, included within the district - Bosque, Erath, and Comanche counties. See Request Letter, supra note 1,at 1. We note atthe outset aproblem here which is, along with the revision of section 36.017(d), at the root of the difficulties presented. Section 10(a) of House Bill

*Section 12provides: “The board ofdirectors may impose taxes annually topay the maintenance and operating expenses ofthe district at arate not to exceed five cents on each $100 ofassessed valuation.” Act of May 25,2001,77th Leg., R.S., ch. 1362, 8 12,200l Tex. Gen. Laws 3371, 3372.The Honorable Gary L. Walker - Page 3 (GA-0001)

3665 requires that the district’s statutorily appointed “temporary board of directors shall call and hold an eLection in each county in the district to confirm establishment of the district and to elect initial directors to represent the county.” Act ofMay 25,2001,77th Leg., R.S., ch. 1362, 5 10(a), 2001 Tex. Gen. Laws 3371’3372 (emphasis added).

The language of section 10(a) specifically requires “an election” in each county, not aseries ofelections. While the phrase “an election in each county in the district” might in isolation be read to permit one election per county, when itis read in context and in light ofthe legislative history of the statute, we conclude that itcontemplates asingle district-wide election in allcounties on asingle date, rather than piecemeal county-by-county elections. First, the act requires the “temporary board ofdirectors,” asanentity, not individual county directors orcounty commissioners courts, tocall this election. That “an election

. . . to confirm establishment of the district,” not multiple elections should be held, is also clear from the legislative history. As the bill analysis states: “The bill sets forth provisions regarding an election to confirm the establishment ofthe district.” 

### HOUSECOMM. ONNATURALRESOURCES, BILLANALYSIS,Tex. H.B. 3665,77th Leg., R.S. (2001) (enrolledversion) (emphasis added). Further, inreading statutory language, we aretopresume that areasonable result and one feasible of execution is intended. See TEX.GOV’TCODEANN. 8 311.02l(3)-(4) (Vernon 1998). As is illustrated in the instant case, and as we detail further below, the consequence of reading this act to permit piecemeal elections would be the creation of a “district” the borders, constituents, and authority ofwhich remained uncertain until the last such election was held. Had the temporary directors as abody called asingle election, many ofthe problems you identify for us would have been obviated.

When the election was held in the three counties, amajority ofthe voters in Bosque County voted against confirmation. See Request Letter, supra note 1, at 1. A majority of the voters of Erath County voted both to confirm the district and to authorize the maintenance tax. See id. In Comanche County, the voters favored confirmation ofthe district, but amajority disapproved the maintenance tax proposition. See id.

You ask about the consequences of the elections that have been held. We note, as a preliminary matter, that generally the right to hold anelection depends upon statutory authorization, See County v.Mitchell, 38 S.W.2d 770,774 (Tex. 193l), Setliff v. Gorrell, 466 S.W.2d 74’77 (Tex. Civ. App.-Amarillo 1971,no writ); Tex. Att’y Gen. Op. No. DM- 172 (1992) at2, and that itmight therefore be argued that the elections already held - aseries ofelections, rather than the single one contemplated by the statute - are invalid. However, courts generally are reluctant to invalidate elections because when elections are untainted by fraud orimproper conduct, “itbecomes the duty of courts to sustain them, where it can be done by a liberal construction of the laws relating to elections, rather than defeat them byrequiring rigid conformity tolaw.” Des Champ v.Featherston, 886 S.W.2d 536,540 (Tex. App.-Austin 1994, nowrit) (citation omitted). Accordingly, we presume the validity of the three elections already held.

Under House Bill 3665, the existence of the Middle Trinity Groundwater Conservation District has been confirmed. Both Erath and Comanche counties are included in the district. Pursuant to section 10(e) ofHouse Bill 3665, “[tlhe district is established ifamajority of the votesThe Honorable Gary L. Walker - Page 4 (GA-0001)

cast at the election in at least one county favors the establishment of the district.” Act ofMay 25, 2001, 77th Leg., R.S., ch. 1362, 5 10(e), 2001 Tex. Gen. Laws 3371, 3372 (emphasis added). As you inform us, the voters of both Erath and Comanche counties have confirmed the district. See Request Letter, supra note 1,at 1.Accordingly the district isestablished. Further, under subsection (e), “[a] county is included in the district and may elect directors to the board only if amajority of the votes cast atthe election in that county favors the establishment ofthe district.” Act ofMay 25, 2001’77th Leg., R.S., ch. 1362, 8 10(e), 2001 Tex. Gen. Laws 3371, 3372. The voters ofBosque County rejected the establishment of the district. See Request Letter, supra note 1, at 1. Accordingly, Bosque County does not form part ofthe district. However, both Erath and Comanche counties, in which amajority ofthe voters have voted for the district’s establishment, arepart ofthe district pursuant to section 10(e).

However, neither the extent ofthe district nor its authority to levy amaintenance tax is asyet clear. Only after the temporary board has called anelection inthe remaining counties and the results ofthat election are known can these questions be answered. Had the directors called an election on confirmation on a single date in every county of the district, its boundaries and taxing authority would be clear. The counties that voted forthe district’s establishment by majority would constitute the district under section 10(e), particularly given that the section states that “[clounties included in the district are not required to be contiguous.” Act of May 25, 2001, 77th Leg., R.S., ch. 1362, 8 10(e), 2001 Tex. Gen. Laws 3371, 3372. The electorate of those counties as a whole would determine, by majority vote, pursuant to section 36.017(d) of the Water Code, whether a maintenance tax might be imposed. See TEX. CONST.art. XVI, 559; TEX.WATERCODEANN. 8 36.017(d) (Vemon Supp. 2002). Until an election has occurred in the five remaining counties, however, these questions cannot be answered.

The question of the board’s taxing authority is one for the district as a whole. A district created pursuant to article XVI, section 59 ofthe Texas Constitution is a “governmental agenc[y] and bod[y] politic and corporate.” TEX.CONST. art. XVI, 5 59. The Middle Trinity Groundwater Conservation District has “all ofthe rights, powers, privileges, authority, functions, and duties

. . . applicable to groundwater conservation districts created under Section 59,” including the right to impose amaintenance tax with the consent ofthe voters ofthe district. Act ofMay 25,2001,77th Leg., R.S., ch. 1362, 8 5(a), 2001 Tex. Gen. Laws 3371. Under article XVI, section 59, any maintenance tax must be approved by the voters. The procedures for that vote are not, aswe have noted, made explicit in House Bill 3665, although section 12 of the act allows for such an imposition. See id. 9 12, at 3372. Accordingly, we must find the authority to obtain voter approval of amaintenance tax, as well as district confirmation, in section 36.017 of the Water Code. The identity and will of those voters in this regard has, however, not yet been determined.
Only when all counties have voted will the boundaries and taxing authority ofthe district be established. If a majority of the voters in the district as a whole vote for the imposition of a maintenance tax, then the taxing authority has been granted. Thus, the mere fact that amajority of the voters of one county within the district have voted against the maintenance tax does not mean that the tax may not be imposed upon them ifamajority ofthe district’s voters ultimately grant theThe Honorable Gary L. Walker - Page 5 (GA-0001)

taxing power to the district. Nor may the tax be imposed asyet inthe two district member counties that have voted sofar, because the question ofthe board’s taxing authority has not yetbeen decided.
Finally, you ask about the procedure for removal oftemporary directors in acounty that does not hold the election. See Request Letter, supra note 1, at 2. However, the calling of the confirmation election ismandated bythe statute, and itisnot within the directors’ discretion toleave any county out of the canvass. You note that “at least two counties have expressed their desire to

never call anelection.” Id. We presume that such expression comes from the commissioners courts ofthe counties atissue. SeeNueces County v.DePena, 953 S.W.2d 835’836-37 (Tex. App.-Corpus Christi 1997, no pet.) (county acts only through commissioners court). However, the calling of a confirmation election is not within the power of a commissioners court, nor is it a matter of the temporary board’s discretion. The language ofsection 10(a) ofHouse Bill 3665 ismandatory: “The temporary board ofdirectors shall call and hold an election in each county in the district

. . ..” Act ofMay 25,2001,77th Leg., R.S., ch. 1362, 5 10(a), 2001 Tex. Gen. Laws 3371, 3372. See TEX. GOV'T CODEANN. 5 311.016(2) (Vernon 1998) (“‘Shall’ imposes a duty.“). Further, if the suggestion here is that necessary consent by the counties to House Bill 3665 was not granted, the “enrolled bill” rule requires us to assume that any consent required of the various counties under article XVI, section 59(e) of the Texas Constitution has been granted. See Beckendorjf v.HarrisGalveston Coastal Subsidence Dist., 558 S.W.2d 75’78 (Tex. Civ. App.-Houston [14thDist.] 1977, writ refd n.r.e.); Tex. Att’y Gen. Op. No. JC-0170 (2000). Further, we are aware ofno general law contravened by House Bill 3665 that would render the statute unconstitutional under section 59(e). Cj Southwest Travis County Water Dist. v. City ofAustin, 64 S.W.3d 25 (Tex. App.-Austin 2000,

no pet.). Because the counties cannot refuse to hold the election, the question of the removal of temporary directors does not arise.The Honorable Gary L. Walker - Page 6 (GA-0001)

SUMMARY

The existence of the Middle Trinity Groundwater Conservation District in some form has been confirmed. Bosque County does not form part ofthe district, while Erath and Comanche counties do. The extent and taxing authority of the district remain indeterminate until the election mandated by the statute creating the district is held in Callahan, Coryell, Eastland, Hamilton, and Somervell counties.
Very truly yours,

HOWARD G. BALDWIN, JR. First Assistant Attorney General

NANCY FULLER Deputy Attorney General -General Counsel

SUSAN DENMON GUSKY Chair, Opinion Committee

James E. Tourtelott Assistant Attorney General, Opinion Committee