The Honorable Gary L. Walker 

Chair, Committee on Land and 

Resource Management 

Texas House of Representatives 

P. 0. Box 2910 

Austin, Texas 78768-29 10 

OFFICE ofthe ATTORNEY GENERAL 

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 a part 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 a whole has been polled. 

In the event that a majority of the district’s voters generally approve the levying of a maintenance 

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 of May 252001, 77th Leg., R.S., ch. 1362, 

8 10(a), 2001 Tex. Gen. Laws 3371,3372 (House Bill 3665) (emphasis added). 

The district is a groundwater conservation district established pursuant to article XVI, section 

59 of the 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 a maintenance 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]. 

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The 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. 8 5. 

A confirmation election is required by section 10 of the act. See id. Q 10, at 3372. If the 

creation of the district is not confirmed before September 1,2003, the act creating the district expires 

on that date. See id. 8 14(b). Such an election need not be held on a uniform 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 of a maintenance tax, see id. 8 12,2 but 

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. Q 10(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 of May 

29,1995,74th Leg., R.S., ch. 933,s 2, sec. 36.017(d), 1995 Tex. Gen. Laws 4673,4682. Under that 

system, it would not have been possible to vote simultaneously in favor of the creation of the district 

yet against the maintenance tax. However, Senate Bill 2 of the Seventy-seventh Legislature revised 

section 36.017(d) so that the two propositions became independent of each other and added 

subsection (i), which provides: 

If a majority of the votes cast at the 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 of water to be withdrawn from a well. 

TEX. WATER CODE ANN. 0 36.017(i) (Vernon Supp. 2003) (emphasis added). 

In the instant case, confirmation elections have been held in three of the 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 at the outset a problem 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 12 provides: “The board of directors may impose taxes annually to pay the maintenance and operating 

expenses of the district at a rate not to exceed five cents on each $100 of assessed valuation.” Act of May 25,2001,77th 

Leg., R.S., ch. 1362, 8 12,200l Tex. Gen. Laws 3371, 3372. 
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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 of May 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 a series 

of elections. While the phrase “an election in each county in the district” might in isolation be read 

to permit one election per county, when it is read in context and in light of the legislative history of 

the statute, we conclude that it contemplates a single district-wide election in all counties on a single 

date, rather than piecemeal county-by-county elections. First, the act requires the “temporary board 

of directors,” as an entity, not individual county directors or county commissioners courts, to call 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 of the district.” HOUSE COMM. 

ONNATURALRESOURCES, BILLANALYSIS,Tex. H.B. 3665,77th Leg., R.S. (2001) (enrolledversion) 

(emphasis added). Further, in reading statutory language, we are to presume that a reasonable result 

and one feasible of execution is intended. See TEX. GOV’T CODE ANN. 8 3 11.02 l(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 of which remained uncertain until the last such election was held. Had 

the temporary directors as a body called a single election, many of the problems you identify for us 

would have been obviated. 

When the election was held in the three counties, a majority of the 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 of the district, but a majority 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 an election depends upon statutory authorization, 

See County v. Mitchell, 38 S.W.2d 770,774 (Tex. 193 l), Setliff v. Gorrell, 466 S.W.2d 74’77 (Tex. 

Civ. App.-Amarillo 197 1, no writ); Tex. Att’y Gen. Op. No. DM- 172 (1992) at 2, and that it might 

therefore be argued that the elections already held - a series of elections, 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 or improper conduct, “it becomes 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 by requiring rigid conformity to law.” Des Champ v. Featherston, 

886 S.W.2d 536,540 (Tex. App.-Austin 1994, no writ) (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) of House Bill 3665, “[tlhe district is established if a majority of the votes 
The Honorable Gary L. Walker - Page 4 (GA-0001) 

cast at the election in at least one county favors the establishment of the district.” Act of May 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 is established. Further, under subsection 

(e), “[a] county is included in the district and may elect directors to the board only if a majority of 

the votes cast at the election in that county favors the establishment of the district.” Act of May 25, 

2001’77th Leg., R.S., ch. 1362, 8 10(e), 2001 Tex. Gen. Laws 3371, 3372. The voters of Bosque 

County rejected the establishment of the district. See Request Letter, supra note 1, at 1. 

Accordingly, Bosque County does not form part of the district. However, both Erath and Comanche 

counties, in which a majority of the voters have voted for the district’s establishment, are part of the 

district pursuant to section 10(e). 

However, neither the extent of the district nor its authority to levy a maintenance tax is as yet 

clear. Only after the temporary board has called an election in the remaining counties and the results 

of that 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 for the 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, 5 59; TEX. WATER CODE ANN. 

8 36.017(d) (V emon 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 of the 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 of the rights, powers, privileges, authority, functions, and duties . . . 

applicable to groundwater conservation districts created under Section 59,” including the right to 

impose a maintenance tax with the consent of the voters of the district. Act of May 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, as we 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 a maintenance 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 of the 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 a majority 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 if a majority of the district’s voters ultimately grant the 
The Honorable Gary L. Walker - Page 5 (GA-0001) 

taxing power to the district. Nor may the tax be imposed as yet in the two district member counties 

that have voted so far, because the question of the board’s taxing authority has not yet been decided. 

Finally, you ask about the procedure for removal of temporary directors in a county that does 

not hold the election. See Request Letter, supra note 1, at 2. However, the calling of the 

confirmation election is mandated by the statute, and it is not within the directors’ discretion to leave 

any county out of the canvass. You note that “at least two counties have expressed their desire to 

never call an election.” Id. We presume that such expression comes from the commissioners courts 

of the counties at issue. See Nueces County v. De Pena, 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 of section 10(a) of House Bill 3665 is mandatory: “The 

temporary board of directors shall call and hold an election in each county in the district . . . .” Act 

of May 25,2001,77th Leg., R.S., ch. 1362, 5 10(a), 2001 Tex. Gen. Laws 3371, 3372. See TEX. 

GOV'T CODE ANN. 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 [ 14th Dist.] 1977, 

writ refd n.r.e.); Tex. Att’y Gen. Op. No. JC-0170 (2000). Further, we are aware of no 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 of Austin, 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 of the 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