Untitled Texas Attorney General Opinion ( 1988 )

THE ATTOIWEY GENERAL
OF TEXxU.4
mty 24, 1988
Honorable Jack Skeen, Jr. Opinion No. (JM-909)
Criminal District Attorney
Smith County Courthouse Re: Whether a member of a
Tyler, Texas 75702 board of directors of a water
control and improvement dis-
trict must reside in the dis-
trict (RQ-1134)
Dear Mr. Skeen:
You have asked whether a person must reside within the
territory encompassed by the Smith County Water Control and
Improvement District No. 1 (the District) to be eligible for
election as a district director. The District was created
in 1961 pursuant to article XVI, section 59, of the Texas
Constitution. Water control and improvement districts are
general law districts governed by chapter 51 of the Water
Code. Provisions regarding qualifications and election of
district directors are found in subchapter C of chapter 51
of the Water Code.
In accordance with section 51.073 of the Water Code,
the District elects five directors to serve staggered terms.
Section 51.072 of the Water Code provides as follows:
To be qualified for election as a director, a
person must be a resident of the state, own
land subject to taxation in the district, and
be at least 21 years of age.
(Emphasis added.)
Thus, with respect to residency of directors, the Water Code
requires only that they be residents of the state.
You ask, however, whether the residency requirements
P found in section 141.001(a)(5) of the Election Code apply to
candidates for director of the District. Your question
specifically concerns the applicability in this context of
the requirement that a person reside in the territory from
which the office is elected -- in this case, the water
district.
p. 4514
Honorable Jack Skeen, Jr. - Page 2 (J&909)
Section 141.001 of the Election Code states in relevant
part:
(a) To be eligible to be a candidate for,
or elected or appointed to, a public elective
office in this state, a person must:
(1) be a United States citizen;
(2) be 18 years~ of age or older on the
first day of the term to be filled at the
election . . . ;
(3) have not been determined mentally
incompetent by a final judgment of a court:
(4) have not been finally convicted of a
felony from which the person has not been
pardoned or otherwise released from the
resulting disabilities;
(5) have resided continuously in the state
for 12 months and in the territory from which
the office is elected for six months
immediately preceding the [candidates' filing
deadline]:
. . . .
(6) satisfy any other eligibility re-
quirements prescribed by law for the office.
(b) A statute outside this code super-
sedes Subsection (a) to the extent of any
conflict.
(c) Subsection (a) does not apply to an
office for which the federal or state con-
stitution or a statute outside this code
prescribes exclusive eligibility reguire-
ments. (Emphasis added.)
Subsection (b) of section 141.001 provides that a
statute outside the Election Code, such as the Water Code,
supersedes subsection (a) to the extent of any conflict.
Thus, the question we must decide is whether the Water
Code's specific provision that to be qualified for election
as a director of a water district a person must be a
resident of the state, conflicts with the Election Code's
general provision that to be elected to a public office a
p. 4515
Honorable Jack Skeen, Jr. - Page 3 (JK-909)
person must have resided continuously in the state for
twelve months and in the territory from which the office is
elected for six months.
Under one view, the Election Code provision does not
conflict with the Water Code, but merely supplements it. An
example of such reasoning is found in Brown v. Patterson,
609 S.W.2d 287 (Tex. Civ. App. - Dallas 1980, no writ). In
Brown the court reconciled the Election Code's general
six-month durational residence requirement with a specific
statute governing the election of school trustees. While
the specific statute required residency in the school
district, it had no durational requirement. The court found
no conflict, harmonized the two provisions, and imposed the
Election Code's durational residence requirement. If
similar reasoning were applied to the question of residency
requirements for water district directors, the result would
be that in order to be a director, a person would not only
have to be a resident of the state, as required by the Water
Code, but he would also have to have been a resident of the
state for twelve months prior to the candidates' filing
deadline, as required by section 141.001(a)(5) of the
Election Code.
.-
In our view, however, the reasoning of Brown is
inapposite to the question of whether a person must be a
resident of the district, as distinguished from how long he
must have resided in the state. In establishing a district
residency requirement, the Election Code does not merely
supplement the Water Code, but instead conflicts with it.
The express mention of one person, thing, consequence, or
class is equivalent to an express exclusion of all others.
State v. Mauritz-Wells Co., 175 S.W.2d 238, 241 (Tex. 1943).
Put another way, a statute's inclusion of specific
limitations excludes all other limitations of the same tvoe.
Guinn v. State, 696 S.W.2d 436, 438 (Tex. APP. - Houston
[14th Dist.] 1985, no writ).
When the legislature provides in a specific statute for
a residency requirement and in a general statute for the
duration of a residency requirement, as in Brown, the
general statute can be read as supplementing the special
statute. However, when the legislature addresses residency
limitations by providing in a specific statute only that a
person must be a resident of the state, then a general
statute that requires residency in a district must be read
as conflicting. Moreover, when the requirement that a
director need only be a resident of the state is followed by
a requirement that the director own land in the district,
p. 4516
I
Honorable Jack Skeen, Jr. - Page 4 (JM-909)
that juxtaposition suggests that the legislature rejected a
district residency requirement.1
Having found that section 51.072 of the Water Code
supersedes section 141.001(a) of the Election Code, we must
determine whether section 51.072 violates article XVI,
section 14, of the Texas Constitution, which requires that
all district officers shall reside within their districts.
The short and easy answer is no. Article XVI, section 14,
i's not applicable to officers of districts created under the
authority of article XVI, section 59, of the Texas
Constitution. Walton v. Brownsville Naviaation District,
181 S.W.2d 967, 969 (Tex. Civ. App. - San Antonio 1944, writ
ref'd); Kaufman Countv Levee Imnrovement District No. 10 v.
Natiom1 Life Insurance Co 171 S.W.2d 188, 189 (Tex. Civ.
APP. - Dallas 1943, writ &la).
SUMMARY
The district residency requirement of
section 141.001(a)(5) of the Election Code
conflicts with section 51.072 of the Water
Code. Pursuant to section 141.001(b) of the
Election Code, the Water Code therefore
supersedes the Election Code. A candidate
for the office of director of the Smith
County Water Control and Improvement District
No. 1 need not be a resident of the district.
1. One brief provided to us reviewed the acts of the
69th legislature and the 70th legislature. Those two
legislatures enacted laws authorizing creation of three
general law districts and over seventy conservation and
reclamation districts. In each instance specific director
qualifications were provided, some in direct conflict with
those of the Election Code. The variations in director
qualifications suggest that the legislature sometimes
tailors qualifications to different situations. In doing
so, the legislature continues on occasion to use district
property ownership as an alternative to district residency
as a director qualification. See, e.s., Acts of 1987, ch.
993, § 7(d). As a practical matter, some districts must
have non-resident landowner directors at the outset because
there are few or no residents living in the undeveloped
district.
p. 4517
Honorable Jack Skeen, Jr. - Page 5 (JM-909)
JIM MATTOX
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
LOU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by F. Scott McCown
Assistant Attorney General
P
p. 4518