Honorable Abelardo Garxa 

Duval County Attorney 

Dud County Courthouse 

P. 0. Drawer M 

San Diego, Texas 78384 

Office of tfje Igttornq, dhntral 

Otah of &txas 

March 27,199l 

Opinion No. DM-12 

Re: Whether a board member of a 

conservation and reclamation district may 

serve simultaneously as the district’s manager (RQ-2192) 

Dear Mr. Gama: 

You have requested our opinion as to whether a board member of a 

conservation and reclamation district may serve simultaneously as the district’s 

manager. You state that an individual board member of, the Duval County 

Conservation and Reclamation District has been appointed as manager of the 

district at a salary of $l,SOO.OO per month. 

The district was created in 1949 as the Jim Wells-Duval Counties 

Conservation and Reclamation District. Acts 1949, 51st Leg., ch. 398, at 737. In 

1963, the district’s boundaries were changed’s0 as to be limited to Duval County. 

Acts 1963,58th Leg., ch. 452, at 1164. Sections 1,2 and 3 of the enabling legislation 

now provide, in pertinent part: 

Under and pursuant to the provisions of Article 16, Section 

59, of the Constitution of Texas. there is hereby created within the 

State of Texas . . . a conservation and reclamation district to be 

known as the Duval County Conservation and Reclamation District 

. . . consisting of that part of the State of Texas which is included 

within the boundaries of Duval County, exclusive of that part of 

Duval County comprising the Freer Water Control and 

Improvement District, of Duval County. 

The District shall have and exercise, and is hereby vested 

with all of the rights, powers, privileges and duties conferred and 

imposed by the General Laws of this State now in force or 

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Honorable Abelardo Gatza - Page 2 (DM-12 ) 

hereafter enacted, applicable to water control and improvement 

districts created under authority of Section 59, Article 16 of the 

Constitution, but to the extent that the provisions of any such 

General Laws may be in conflict or inconsistent with the provisions 

of this Act, the provisions of this Act shall prevail. All such 

General Laws are hereby incorporated by reference with the same 

effect as if incorporated in full in this Act. 

The management and control of the District is hereby 

vested in a board of directors which shall have all the powers and 

authority conferred and imposed upon boards of directors of Water 

Control and Improvement Districts . . . . T!te board of directors 

shall be composed of four (4) members who shall have the same 

qualifications as directors of Water Control and Improvement 

Districts, (Emphasis added.) 

One of the “powers” conferred on a board of directors of a water control and 

improvement district is the power to employ a general manager. Chapter 51 of the 

Water Code is applicable to water control and improvement districts. Section 

51.083 thereof declares: 

The board may employ a general manager and give him 

full authority in the management and operation of the affairs 

of the district subject only to the orders of the board. 

Section 51.084 then states: 

Except as provided in Section 50.026(a) of this code, a 

director may be employed as general manager with 

compensation fixed by the other four directors. When so 

employed, he shall continue to perform the duties of a director. 

Clearly, section 51.083 is applicable to the Duval County Conservation and 

Reclamation, District, since the employment of a general manager is one of the 

“powers . . . conferred . . . upon boards and directors of Water Control and 

Improvement Districts.” The question then becomes whether section 51.0&J is also 

applicable to the board, since that provision assumes that there are five directors 

rather than four. 

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Honorable Abelardo Garza - Page 3 (DM- 12 1 

All of chapter 51 of the Water Code, which governs water control and 

improvement dlltricts, contemplates a five-member board of directors. Water Code 

3 51.971. Nevertheless, the enabling legislation for the Duval County Conservation 

and Reclamation District directs that the board of directors shall have “all the 

powers and authority conferred upon boards of directors of Water Control and 

Improvement Districts.” Furthermore, it also provides that the “General Laws are . . 

. incorporated by reference.” As we have indicated, the enabling legislation provides 

that, in the event of conflict with the general laws, the enabling legislation prevails. 

See genemlb Acts 1925,39th Leg., ch. 25, at 86 (adopting substance of chapter 51). 

We do not believe that there is any necessary conflict between the provision 

of the enabling legislation for four directors, and the authority of the board to 

employ a director as general manager under section 51.084. The latter is not 

dependent for its meaning upon any particular number of directors. It simply 

declares that a director may be employed as general manager, and his compensation 

fixed by the other directors. In our opinion, the reference in section 51.084 to the 

“other four directors” is simply a reflection of the fact that chapter 51 contemplates a 

five-member board, not a reflection of legislative intent that five directors are 

necessary to permit a director to be general manager. 

Since we have concluded that section 51.084 applies to the Duval County 

Conservation and Reclamation District, we must now determine the applicability of 

the proviso to section 51.084, ic, section 50.026(a) of the Water Code. 

Section 50.026 provides, in part: 

(a) A person is disqualified from serving as a member of a 

governing board of a district which was created under this title 

or by special act of the legislature, which is providing or 

proposing to provide, as the district’s principal function, 

potable water, sewer, drainage, and flood control or protection 

facilities or services, or any of these facilities or services to 

household, commercial, or industrial users, other than 

agricultural or irrigation users; and which district includes less 

than all the territory in at least one county and which, if 

located within the corporate area of a city or cities, includes 

within its boundaries less than 75 percent of the incorporated 

area of the city or cities if: 

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Honorable Abe&do Garza - Page 4 (DM- 12 ) 

. . . . 

(2) he is an employee of any developer of 

property in the district, or any director, manager, 

engines, or attorney for the district. 

. . . . 

(4) he is serving as an attorney, consultant, 

engineer, manager, architect, or in some other 

professional capacity for the district or a developer 

of property in the district in connection with the 

district or property located in the district. 

(Emphasis added.) 

You indicate that the principal function of the district “is the provision of 

potable water, sewer, drainage, flood control, and protection services, [. , . and that 

it ] also serves household, commercial, industrial, or agricultural and irrigation 

users.” You also state that “the District includes the entire Cities of San Diego and 

Benavides. The Duval County Conservation and Reclamation District also provides 

services to unincorporated cities of Realitos, Conception, and Ramirez.” 

As indicated in the district’s enabling legislation, the Duval County 

Conservation and Reclamation District includes “less than all the territory in at least 

one county,” which is one of the stipulations of section 50.026(a). The remaining 

condition necessary for a district to fall within the coverage of subsection (a) of 

section 50.026 is that the district, “if located within the corporate area of a city or 

cities,” include within its boundaries less than 75 percent of the incorporated area 

of the city or cities.” The district is in fact located within the area of two 

incorporated cities-San Diego and Benevides-and the district encompasses the 

entire area of both cities. Therefore, the district does not “include within its 

boundaries I.ars than 75 percent of the incorporated area of the city or cities.” 

(Emphasis added.) As a result, not all conditions of subsection (a) of section 50.026 

are satisfied by the Duval County Conservation and Reclamation District, and thus, 

that section is not applicable to the district. 

We conclude that, since section 50.026(a) of the Water Code is not in this 

case applicable to the district, there is no impediment to a director being 

simultaneously employed as the district’s general manager, “with compensation fixed 

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Honorable Abelardo Garxa - Page 5 (DM- 12 ) 

by the other [three] directors.” Water Code 9 51.0&1. Accordingly, in the situation 

you pose, a board member of the Duval County Conservation and Reclamation 

District may serve simultaneously as the district’s manager. 

SUMMARY 

A board member of the Duval County Conservation and 

Reclamation District may serve simultaneously as the district’s 

manager, if his compensation is fixed by the remaining directors. 

DAN MORALES 

Attorney General of Texas 

WILL PRYOR 

First Assistant Attorney General 

MARY KELLER 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAKLEY (Ret) 

Special Assistant Attorney General 

RENEAHIcKs 

Special Assistant Attorney General 

SUSAN GARRISON 

Acting Chairman, Opinion Committee 

Prepared by Rick Gilpin 

Assistant Attorney General 

p. 50