Untitled Texas Attorney General Opinion ( 1993 )

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DAN MORALES
ATTORNEY
GENERAL October 27,1993
Honorable Jose R. Rodriguez Opiion No. DM-269
El Paso County Attorney
500 East San Antonio, Room 203 Re: Term of office of directors of the El
El Paso, Texas 79901 Paso County Water Control and Improve-
ment District (Westway). and related
questions (RQ-479)
Dear Mr. Rodriguez:
Your inquiry concerns the term of office for the directors of the El Paso Water
Control and Improvement District (“Westway”), and related issues. As background, you
statethat
Westway was created on May 24, 1961, pursuant to Constitution,
Article XVI, 5 59, by legislative act (formerly Art. 8280-250.
V.T.C.S., but since repealed and not carried into the Water Code),
General and Special Laws of Texas, 1961, chapter 210. The
legish~ture subsequently passed an act ratifying confirming and
validating Weshvay effkctive February 16, 1962. (General and
Special Laws of Texas, 1%2,3rd Called Session, Chapter 67).
Based upon your understanclmg of these statements, you ask for clarification of the proper
election date and term of office for the directors of Westway.
A careikl review of the legislation upon which you base your inquiry reveals that
the original enabling act for Westway is still operative. The legislation .creating the El
Paso County Water Control and Improvement District - Westway, became effective May
24, 1961. Section one of the act provides the following:
Under and pursuant to the provisions of Article 16, Section 59,
of the Constitution of Texas, a conservation and reclamation district
is hereby created and established in El Paso County, Texas, to be
known as ‘El Paso County . .’which shall be a governmental agency
and a body politic and corporate.
Acts 1961, ch. 210,s 1, at431. The act ofFebruary 16,1%2, did not repeal the enabling
act; rather, it declared that Westway was “in all things ratified, conkned, and validated
and is.. .validly existing.. .” Acts 1962, 57th Leg., 3d C.S., ch. 67, Q 1, at 181.
Furthermore, the Water Code recognizes these dktricts, provides for their continued
operation under special acts, and expressly exempts them from the operation of the code.
Honorable JoseR. Rodriguez - Page 2 (DM-269)
The legislative intent of section 1.001(d) of the Water Code is clear from a plain reading
. of the provision which states “[t]he legislature believes that persons interested in these
local and special laws may rely on the session laws and on compilations of these laws.”
Water Code $ 1.001(d); Aikin v. FranklinCaun~ Wafer Disi., 432 S.W.2d 520 (Tex.
1968); see also Water Code Aux. Laws (Vernon 1993).
Section 6 of the act creating Westway states that the district shall be governed by a
board of five directors elected for staggered two year terms and that “[a]n election for the
election of Directors shall be held on the second Tuesday in January of each year
beginning in 1962, and as herein provided.” See Acts 1961, ch. 210, 9 6, at 435. You
suggest that this provision goes against “the grain of strong public policy. . as reflected
in Article XVI, Section 64 of the Texas Constitution.“r In Attorney General Opinion
WW-1llOA (1962) this office considered the arguments in favor of four year terms with
uniform election dates for school trustees. It was concluded that while school trustees
have been considered county officials for some purposes, they are not for purposes of
section 64. Id. at 5-6. You suggest that Attorney General Opiion WW-1llOA should be
reconsidered and that section 64 should be held to apply to “all district, precinct, and
county elected officials, to include the directors of Westway.” We support the conclusion
reached in Attorney General Opiion WW-I 11OA.
We note that the Water Code was amended by Acts 1983,68th Leg., ch. 951, § 1,
at 5212 to change the term of office for the directors of certain general law districts from
two to four years, effective January 1, 1984. However, section four of the act creating
Westway provides
The District shall have and exercise, and is hereby vested with all
of the rights, powers, privileges, authority and duties conferred and
imposed by the General Laws of this state now in force or hereafter
enacted, applicable to water control and improvement districts
created under authority of Section 59, Article XVI, of the
Constitution, bur to rhe exrenf fhar fhe provisions of any such
lSection 64 of articleXVI of the Texas Cmstihttionprovides:
The office of Ixvqzector
of Hides and Animals, the elective district,county
and precinctoffices which have hemtoforehad termsof hvo years, shall hereafter
have (em of four yean; and the holders of such offim shall serve until their
SUC(XSSOTSSK qualified.
The interpretivecommentary.following section 64 providessome of the argument.5in favor of
and against a four year term of office. Opponentsof the measurearguedthat shorterterms kept offh5als
“closer to the pulse of the public” and fostered an mweness of the responsibilitiesof public offke.
Suppk.rs of the four year term argued that s longer term would pmvide a more efficient local
govenmxnt by ensbling local elected &icisls the opportunity to .perform their duties without the
exeesive politicalpressuresinherentin s shorterterm of office.
Honorable Jose R. Rodriguez - Page 3 (DM-269)
GeneralL.awsmay be in confrif or inconsisfenfwithfhe provisions
of fhisAct, fbeprovisionsof fhisAct shallprevail
Acts 1961, 57th Leg., ch. 210, $4, at 435 (emphasis added). Therefore, the aforemen-
tioned amendments to the Water Code are not controlling. Accordingly, we conclude that
the term of office for the directors of Westway is two years.
However, the date of Westway’s director elections-which its 1961 act sets as the
second Tuesday in January-is now governed by chapter 41 of the Election Code. See
Elec. Code 5 1.002(b) (code supersedes contlicting statue). Section 41.001 requires, with
exceptions not applicable here, that all elections be held on one of four uniform dates: the
third Saturday in January, the tirst Saturday in May, the second Saturday in August, or the
first Tuesday after the first Monday in November. (Section 41.003, however precludes
Westway’s use of the November date on an annual basis.)2 Section 41.005 provides that
if as in the case of Westway, a law outside the Election Code specifies a non-uniform date
for a political subdivision’s elections, the governing body “shah set the election .date to
comply with” the Election Code provisions, and adjust terms of office accordingly.
You ask finally, in the event Westway has been improperly electing its directors,
“what is the legal status of the district and its directors and the legal status of the actions
taken by the board of directors who have been serving for four year terms?” We have
already concluded that only two years, rather than four, is the proper term of Westway
directors, but also that Westway should be holding its elections on a uniform date
prescribed by the Election Code rather than on the second Tuesday in January. Election
Code section 41.008 indicates that elections held on improper dates are void.
We note that the 1961 special act creating Westway provides:
The yearly elections shall be ordered by the Board of Directors.
Failure to call an election for Directors will in no way affect the legal
status of the District or the Board of Directors or the individual
Directors or the right of said Board of Directors to act or 8mction
and the Directors shah serve until an election is held under the
provisions of this law and the succeeding Directors have been duly
elected or appointed and have duly qualiied.
Acts 1961, 57th Leg., ch. 210, 5 6, at 435.
It may be that the above-quoted provisions of the 1961 special act only echo the
“holdover” provision of article XVI, section 17 of the Texas Constitution, that “[aIll,
officers within this State shall continue to perform the duties of their offices until their
‘Section 41.003 of the Election Cndconly authorizesNovemberekcths held in even-numbered
yearsfor certainpurposes.
Honorable JoseR. Rodriguez - Page 4 (DM-269)
successorsshall be duly qualified.” The special act provisions’ scope appears to be limited
to situations where the directors it authorizes to continue to serve until their successors
properly take office have themselves properly taken office to begin with. In Westway’s
case there hss apparently been a succession of directors elected on improper dates and/or
for improper terms. While you indicate that Westway went over to four year terms only in
response to the above-mentioned 1983 Water Code amendments, we note that the election
laws’uniform date requirements date back to 1975 legislation effective January I, 1976.
See Acts 1975,64th Leg., ch. 715, at 2295.
Under the circumstances, Westway may be able to look to the doctrine regarding
de facto officers, which generally validates acts of persons exercising official duties in
good faith although they did not properly hold office.ss a matterof law. See, e.g., Plains
CommonConsol. Sch. Disf. No. I of YoakumCow@ v. Hayhursf,122 S.W.2d 322 (Tex.
Civ. App.-Amarillo 1939, no writ); Anderson v. State, 195 S.W.2d 368 (Tex. Crim. App.
1946). However, whether the de facto officer doctrine would effectively validate
particular acts of past or present directors who did not properly take office would, we
think, ultimately depend on the underlying facts of the case. We are unable to make such
fact tindings in the opinion process. It may be that in order to resolve these issues,
Weshvay will want to seek tinther validating legislation from the 1egislature.s
SUMMARY
The term of directors of the El Paso Water Control District
(Westway) is two years. The district’s board of directors should
select a uniform election date under chapter 41 of the Election Code
for the district’s director elections. The extent to which acts of
improperly elected directors are nevertheless valid involves fact
questions which cannot be resolved in the opinion process,
DAN MORALES
AttorneyGeneral of Texas
3Yoo do not raise nor do we addressany issues Camming applicationof the Vaing Rights Act.
see 42 USC. 8 1973.
Honorable Jose R. Rodriguez - Page 5 W-269)
WILL PRYOR
’ Fist Assistant Attorney General
MARY KELLER
Deputy Attorney Generalfor Litigation
RENEA HICKS
State Solicitor
MADELEINE B. JOHNSON
Chair, Opiion Committee
Prepared by Toya C. Cook
Assistant Attorney General