Untitled Texas Attorney General Opinion ( 2004 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
February 182004
The Honorable Harvey Hilderbran Opinion No. GA-01 5 1
Chair, State Cultural and
Recreational Resources Committee Re: Whether a person who purchases water from the
Texas House of Representatives Jonah Water Special Utility District but who resides
Post Office Box 29 10 in an area outside the district’s boundaries is eligible
Austin, Texas 78768-29 10 to vote in a district election (RQ-0098GA)
Dear Representative Hilderbran:
You ask whether a person who purchases water from the Jonah Water Special Utility District
(the “District”) but who resides in an area outside the district’s boundaries is eligible to vote in a
district election.’
Chapter 49 of the Water Code applies “to all general . . . law districts to the extent that the
provisions of this chapter do not directly conflict with a provision in any other chapter of’ the Water
Code or any special law. TEX. WATER CODE ANN. 8 49.002(a) (Vernon 2000). Section 49.101
provides that, in general, all district elections “shall be . . . conducted in accordance with the Election
Code.” Id. 0 49.101. When a district is initially created by order of either the district or the Texas
Commission on Environmental Quality (the “Commission”),2 see id. $5 49.001 (a)(2), .Ol 0, .Ol 1
(Vernon 2000 & Supp. 2004) (defining the term “commission” and providing for district creation),
“an election shall be held within the boundaries of theproposed district to determine if the proposed
district shall be established and, if. . . required . . . , to elect permanent directors.” Id. 8 49.102(a)
(Vernon Supp. 2004) (emphasis added).
Chapter 65 of the Water Code pertains specifically to special utility districts that may be
created to, among other things, “acquire sources of water supply; to build, operate, and maintain
facilities” for transporting water; and to sell water to public and private entities, including
individuals. Id. 0 65.012( 1). Section 65.014 permits a water supply corporation to file a resolution
‘Letter from Honorable Harvey Hilderbran, Chair, State Cultural and Recreational Resources Committee, Texas
House of Representatives, to Honorable Greg Abbott, Texas Attorney General (Aug. l&2003) (on file with the Opinion
Comrnittee) [hereinafter Request Letter].
2Effective September 1,2002, the name of the Texas Natural Resource Conservation Commission changed to
the Texas Commission on Environmental Quality. See Act of May 28, 2001, 77th Leg., R.S., ch. 965, 0 18.01(a)(l),
2001 Tex. Gen. Laws 1933, 1985; “TNRCC is Now the TCEQ,” at http://www.tceq.state.tx.us/name_change.html.
The Honorable Harvey Hilderbran - Page 2 (GA-0151)
with the Commission requesting that a district be created. See id. 9 65.014; see also id. 6 65.001(4)
(defining the term “commission”). The resolution must, among other things, “describe” the
proposed district’s “boundaries . . . by metes and bounds or by lot and block number . . . , or by any
other commonly recognized means in a certificate attached to the resolution.” Id. tj 65 .O15( 1). After
a hearing on the resolution, the Commission may redefine the district’s proposed boundaries in an
order authorizing the district’s creation, pending approval at a confirmation and directors’ election.
See id. 8 65.021(a), (c). If approved, the district is considered a water conservation and reclamation
district under article XVI, section 59 of the Texas Constitution. See id. 8 65.011 (Vernon 1988).
Section 65.025, which formerly provided specifically for the confirmation and directors’ election,
has been repealed. See Act of May 25, 1995,74th Leg., R.S., ch. 715, 0 48, 1995 Tex. Gen. Laws
3755,3803. A confirmation and directors’ election is now held in accordance with chapter 49 and,
consequently, with the Election Code. See TEX. WATER CODE ANN. 0 8 49.10 1-. 102 (Vernon 2000
& Supp. 2004) (p roviding that district elections generally must be held in accordance with the
Election Code and providing for confirmation and director elections); see also Act of May 25,1995,
8 2, 1995 Tex. Gen. Laws at 3762 (enacting section 49.102, Water Code).
We understand that the Jonah Water Supply Corporation (the “Corporation”) was formed in
197 1 as a member-owned nonprofit water supply corporation “to provide rural central Williamson
County with a potable water supply.” Request Letter, supra note 1, at 2.3 In accordance with its
certificate of convenience and necessity, the Corporation served a portion of the community of Weir,
which subsequently incorporated as a municipality in 1987. See id. Then, in 1992 the Corporation
was dissolved and “reformed” as the District, a general-law special utility district (which we will
refer to as a conservation and reclamation district, see TEX. WATER CODE ANN. 0 65.011 (Vernon
1988)), operating under chapters 49 and 65 of the Water Code.4 See Request Letter, supra note 1,
at 2.
The District’s creation order specifically excludes from the District’s boundaries “all
municipalities within the geographic area that makes up the [Dlistrict,” including the City of Weir.’
The boundaries have not been changed since the District’s creation! In accordance with its
certificate of convenience and necessity, the District provides water utility services for some Weir
residents, however. See id. “In 2002, some Weir citizens, whose water meters are with the District,
desired to vote in the District’s election. Prior to voting, they were required to submit challenge
voter affidavits because their eligibility to vote in the election was disputed.” Id. You accordingly
3See Letter from Susan Walton, Texas Commission on Environmental Quality, to Board of Directors, Jonah
Water Special Utility District, at 2 (Sept. 26, 2002) (on file with the Opinion Committee) [hereinafter Commission
Letter].
4See Letter from Karl H. Moeller, to Nancy S. Fuller, Chair, Opinion Committee, Office of the Attorney
General, at 1 (Oct. 7,2003) (on file with the Opinion Committee).
‘See also Letter from Karl H. Moeller, to Susan Walton, Texas Commission on Environmental Quality, at 1
(Oct. 8,2002) ( on f 11e with the Opinion Committee) [hereinafter Moeller Letter].
‘jSee Letter from Susan Walton, Texas Commission on Environmental Quality, to Mrs. Tommy Walker, at 1
(Oct. 14,2002) (on file with the Opinion Committee).
The Honorable Harvey Hilderbran - Page 3 (GA-0151)
ask whether these citizens, who are in an area served by the conservation and reclamation district,
may be “lawfully denied the right to vote in a district’s election.” Id.
Under section 11 .OOl of the Election Code, to be eligible to vote in an election, a person
must, among other things, reside in “the territory covered by the election for the office or measure
on which the person desires to vote,” unless a specific law provides differently. TEX. ELEC. CODE
ANN. fj ll.OOl(2) (V emon 2003); see TEX. WATER CODE ANN. 4 49.101 (Vernon 2000) (providing
that, in general, a general-law district that is subject to chapter 49 must conduct its elections “in
accordance with the Election Code”); see also TEX. ELEC. CODE ANN. 0 1.015 (Vernon 2003)
(providing for determination of residence). Nothing in chapter 49 nor in chapter 65 provides that
a nonresident landowner or user of district facilities is qualified to vote in a district election. Section
49.102 makes clear that the initial confirmation and directors’ election is to be held “within” the
proposed district’s boundaries. TEX. WATER CODE ANN. 4 49.102(a) (Vernon Supp. 2004).
Moreover, section 65.102, which lists qualifications to serve as a district director, suggests that a
person owning land in the district or a person using district facilities may be distinguished from a
person who is qualified to vote in district elections: Among the qualifications, a director must
“either own land subject to taxation in the district,” use district facilities, or “be a qualified voter of
the district.” Id. 9 65.102(3) (Vernon 1988).
In addition, the District’s territory, as the creating order describes it, excludes areas within
the boundaries of incorporated municipalities. See Moeller Letter, supra note 5, at 1 (“The creation
order incorporates by reference a metes and bounds description of the boundaries of the District,
which description is appended to the order.“). The fact that a person is within the territory served
by a conservation and reclamation district, in accordance with the district’s certificate of convenience
and necessity, is insufficient to put them within the district’s “territory” for purposes of section
11.00 1, Election Code. A letter between the Commission and the District’s board informs us that
“it is not unusual for a District’s boundaries not to match its . . . Certificate of Convenience and
Necessity . . . ‘license to serve’ area,” and “therefore[,] a district’s [certificate of convenience and
necessity] area should not be used to determine a voter’s eligibility” for purposes of section 11 .OOl
of the Election Code. Commission Letter, supra note 3, at 1.
We therefore conclude, consistently with section 11 .OOl of the Election Code, that a person
who purchases water from a general-law conservation and reclamation district, such as the District,
but who resides outside the district’s boundaries is ineligible to vote in a district election. Only a
person who resides within the District’s territory may vote in the election.
The Honorable Harvey Hilderbran - Page 4 (GA-0151)
SUMMARY
In accordance with section 11 .OOl of the Election Code, a
person who purchases water from a general-law conservation and
reclamation district operating under chapters 49 and 65 of the Water
Code, such as the Jonah Water Special Utility District, may vote in a
district election only if he or she resides within the district’s
boundaries.
BARRY R. MCBEE
First Assistant Attorney General
DON R. WILLETT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee