Untitled Texas Attorney General Opinion ( 2016 )

KEN PAXTON
ATTORNEY GENERAL OF TEXAS
August 15, 2016
The Honorable Rodolfo V. Gutierrez Opinion No. KP-0110
Jim Hogg County Attorney
Post Office Box 84 7 Re: Whether section 49.052 of the Water Code
Hebbronville, Texas 78361 disqualifies an employee of the county
attorney's office from serving as a member of
the board of a water control and improvement
district in the same county, when the county
attorney also provides professional legal
services to the water district (RQ-0102-KP)
Dear Mr. Gutierrez:
You ask whether section 49.052 of the Water Code disqualifies an employee of the county
attorney's office from serving as a member of the board of a water control and improvement district
in the same county, when the individual serving as county attorney provides professional legal
services to the water district in a private capacity. 1 You tell us the employee is an investigator with
the Jim Hogg County Attorney's office and was so employed prior to your taking office as county
attorney. See Request Letter at 2. You also tell us that the employee is paid by the county, pursuant
to a budget requested by you. See id. You tell us further that the employee is not employed by
you "in any matters pertaining to [your] private law practice, which includes representation of th~
Water District on a retainer basis." Id. You state that the employee's name will be on the ballot
for the May 7, 2016 water district election. 2 See id. You question whether the employee, if elected
and if still employed by the county attorney's office, would be disqualified from service on the
district's board by section 49.052. ·See id.
Chapter 49 of the Water Code applies generally to all general and special law water
districts. 3 See TEX.WATER CODE §§ 49.001-.512 (titled "Provisions Applicable to All Districts");
1
See Letter from Honorable Rodolfo V. Gutierrez, Jim Hogg Cty. Att'y, to Honorable Ken Paxton, Tex.
Att'y Gen. at 1 (Mar. 16, 2016), https://www.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request
Letter").
2
In a telephone call to your office, you explained that the candidate was unsuccessful but that you still desire
the opinion because it is likely this scenario will arise again. Telephone conference with Honorable Rodolfo V.
Gutierrez, Jim Hogg Cty. Att'y (May 11, 2016).
3
Y ou do not ask us to make a determination about whether section 49 .052 applies to the district in question.
For purposes of this opinion, we presume that it does.
The Honorable Rodolfo V. Gutierrez - Page 2 (KP-0110)
but see id § 49.052(±) (providing for specified exceptions to the application of section 42.052).
Section 49.052 disqualifies a person from serving as a member of a board of certain water districts,
"if that person . . . is an employee of any developer of property in the district or any director,
manager, engineer, attorney, or other person providing professional services to the district." Id
§ 49.052(a)(2) (emphasis added).
Turning to your question, we note that the goal of statutory construction is to "ascertain the
Legislature's intent." Tex. Adjutant Gen. s Office v. Ngakoue, 408 S.W.3d 350, 354 (Tex. 2013).
"The best guide to that determination is usually the plain language of the statute." Id.
Subsection 49.052(a)(2) includes within its disqualification an employee of any attorney
providing professional services to a district. TEX. WATER CODE § 49.052(a)(2). You tell us this
person is an employee of the county attorney, thus we need only consider the scope of the phrase
"any attorney." The term "any" is defined to mean "[s]ome; one out of many; ... and is given the
full force of 'every."' Beck v. Craven, 360 S.W.2d 827, 830-31 (Tex. Civ. App.-Houston [1st
Dist.] 1962, no writ) (internal quotation marks omitted)); see also City of Austin v. Salyer, 441
S.W.2d 862, 865 (Tex. Civ. App.-Austin 1969, writ ref'd n.r.e.). On its face, the statute makes
no distinction between an attorney providing professional services solely to a district and an
attorney working in dual roles, only one of which involves providing professional services to a
district. Absent such a distinction, a court would likely construe subsection 49.052(a)(2) to
disqualify an employee of an attorney who provides professional legal services to a district, even
if the employee serves the attorney in a role that does not include the provisions of legal services
to the district.
The Honorable Rodolfo V. Gutierrez - Page 3 (KP-0110)
SUMMARY
A court would likely construe subsection 49.052(a)(2) of the
Water Code to disqualify an employee of the county attorney from
serving as a member of the board of a water control and
improvement district in the same county, when the county attorney
also provides professional legal services to the water district.
Very truly yours,
KEN PAXTON
Attorney General of Texas
JEFFREY C. MATEER
First Assistant Attorney General
BRANTLEY STARR
Deputy First Assistant Attorney General
VIRGINIA K. HOELSCHER
Chair, Opinion Committee
CHARLOTTE M. HARPER
Assistant Attorney General, Opinion Committee