Untitled Texas Attorney General Opinion ( 1988 )

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Msch 29, 1988
.mx MA-
‘VrToRNPY GENERAL
Honorable H. Tati Santiesteban Opinion No. JR-877
Chairman
Committee on Natural Resources Re: Procedure for appoint-
Texas State Senate ment of members of the
P. 0. BOX 12068 Texas Water Commission
Austin, Texas 78711 (RQ-1221)
Dear Senator Santiesteban:
you ask whether each of the three members of the
Texas Water Commission must represent a different geo-
graphic area of the state. A now-repealed statute divided
the state into three Texas Water Divisions which corres-
ponded approximately to the east, south, and west of the
state. Acts 1913, 33d Leg.: Tex. Gen. Laws, ch. 171, §6;
P see Acts 1967, 60th Deg., ch. 360, 52 (repealer). The
former law stated as follows:
The members of said Commission shall be
appointed by the Governor. . . . Each shall
be a citizen of this State and a bona fide
resident of the water division from which he
is appointed.
Acts 1962, 57th Leg., 3d C.S., ch. 4, at 10; see also Acts
1913, 33d Leg., Tex. Gen. Laws, ch. 171, 57, at 359.
In 1965, the legislature enacted Senate Bill No. 145
which deleted the language requiring the appointment of
one commissioner from each of the water divisions and
adopted the following language:
Members of the Commission shall serve on a
full-time basis and heat
fro different section of th e state.
(Bmihaiis added.)
Acts 1965, 59th Deg., ch. 296, 53, at 583-84. This
language is now codified in section 5.052 of the Water
Code:
p. 4283
Honorable H. Tati Santiesteban - Page 2 (JW-877)
(a) The commission is composed of three
members who are appointed by the governor
with the advice and consent of the senate.
(b) The governor shall make the appoint-
ments in such a manner that each member is
from a different section of the state.
Water Code 55.052.
You ask whether present law requires each Water
Commissioner to be appointed from one of the three water
divisions or otherwise requires commission members to
represent diverse geographic areas of the state. To
answer your question, we must determine the legislative
intent expressed in the language of section 5.052(b) of
the Water Code, which was enacted in 1965.
A brief submitted by the Texas Water Commission
refers to a study of the statejs water administration
system prepared for the Water Commission, the Water
Development Board, and the Water Pollution Control Board
just prior to the 1965 legislative session. The report,
prepared by the Texas Research League, criticized the
tendency of some state commissions
to function along regional lines and to
program capital contributions in rotation by
member areas.
Texas Research League, A Revert to the Texas Water Com-
mission and the Texas Water Develowment Board: The Struc-
ture and Authoritv or Stat Leadershio of Water Develoo-
Dent In TexaS 23f (1965): The report suggested that
regional repre;entation be left to the legislature where
major state investments were involved. & The portion
of the report on commission organization recommended "that
the geographical districts be eliminated as a basis for
appointment to the Texas Water Rights ComnLssion.n Texas
Research League, A Reuort to the Texas Water Commission
and the Water. Develonment . Water Riahts
Board. and Water
.
Resource Adwstration, 31 (1965). It stated as follows:
[PIresent members are selected on the basis
of geographical districts delineated in
1917, and those districts are now badly
out of balance in terms of proportional
representation. The East Texas district,
containing the cities of Dallas, Fort Worth
and Houston and many other metropolitan
centers, includes more than two-thirds of
p. 4284
Honorable H. Tati Santiesteban - Page 3 04-877)
the State's total population. In its role
as an administrator of water rights, the
Texas Water Rights Commission would not be
concerned with the promotion of water
development which might favor one region as
opposed to another.
Recommendations from this report were incorporated in
legislation introduced during the 1965 legislative
session. S.B. NO. 14.5, S.B. No. 146, Acts 1965, 59th
Leg., chs. 296, 297.
Senate Bill No. 145, as introduced, eliminated all
geographical qualifications for the commission. Bill
File on Senate Bill No. 145, 59th Leg., R.S. (1965) (Texas
State Archives). A committee substitute adopted by the
Senate Committee on Water and Conservation and then by the
Senate as a whole included the language providing that
each member be from a different section of the state. Id.
The House reinstated the requirement that one member be
appointed from each of the water divisions. Id.; H.J. of
Tex., 59th Leg., R.S., 1782 (1965). The Senate refused to
concur in the House amendment and requested the appoint-
rc- ment of a conference committee. S.J. of Tex., 59th Leg.,
R.S., 1231-32 (1965). The conflict between the Senate
provision and the House provision was resolved in favor of
the Senate. The Conference Committee bill included the
present language providing that each member be from a
different section of the state. S.J. of Tex. 59th Leg.,
R.S. 1870 (1965).
This history of Senate Bill No. 145 shows that the
House was reluctant to approve the Senate's changes in
the appointment provision, while the Senate refused to
continue to require each member to reside in a different
water division. The actions of the legislature which
adopted this bill show that there was a significant
difference between the old language on appointment from
water divisions and the new language on appointees being
from different sections of the state. Legislative changes
in the language of statutes generally indicate an
intention to change meaning, and they must be given effect
as such. zndeoendent Life Insurance C v. Work, 77 S.W.2d
1036 (Tex. 1934); & ., 37 S.W.Zd
714 (Tex. 1931).
By repealing the old provision requiring residency in
a statutorily-defined district and substituting a pro-
vision that each commissioner be from a different
- nsectionO1 of the state, the legislature departed from the
former rigid residency requirement. Its use of the
p. 4285
Honorable H. Tati Santiesteban - Page 4 (JM-877)
undefined term wsection" had the effect of destroying
mandatory residency requirement. Vection,w as defined
the dictionary, is
a distinct pa* of a territorial or
political area. . . .
Webster's Ninth New Collegiate Dictionary. This is the
sense in which qqsectionH is used in Senate Bill No. 145.
It is a geographical area, but one so indefinite in
location and extent that it cannot be the basis of an
enforceable residency requirement or other method of
ensuring geographical distribution. A provision that
is essentially indefinite, uncertain, and vague is
ineffective and void. &me S ar as Co. v.
gQ+y,.165 S.W.2d 446,w942); SEate z. Humble
piDe Line Co., 247 S.W. 1082, 1085 (Tex. 1923).
In our opinion, section 5.052(b) of the Water Code
does not establish a valid, enforceable requirement that
water commissioners reside in different geographical areas
of the state, and it need not be followed. It can be
construed as an expression of the legislature's wish, not
its command, that the governor give some consideration to
geographical distribution in appointing Water Commis-
sioners.
The legislature which enacted Senate Bill No. 145
adopted a resolution exp;ii=ing its intent as to the
provision in question. Concurrent Resolution No.
153 provides in part:
WHEREAS, Senate Bill 145 requires the
Governor to appoint each of the three
Commissioners from a different section of
the State; now, therefore, be it
RESOLVED by the House of Representatives,
the Senate concurring, That the intent of
the Legislature is that the Governor in
making future appointments to the-CommisSion
shall insofar as oossible maintain the
Commission with members appointed from the
Eastern, Western and Southern areas of the
State. (Emphasis added.)
Acts 1965, 59th Leg., at 2171.
A statute cannot be amended, repealed, or otherwise
modified by a resolution. Terre11 Wells Swimmina Pool V.
Rodriauez, 182, S.W.2d 824 (Tex. Civ. APP. - San Antonio
p. 4286
.
Honorable H. Tati Santiesteban - Page 5 (JM-877)
1944, no writ); &H&Q 1 104
S.W.Zd 174 (Tex. Civ. App. - Austin 1936, writ rek#d);
v. Rou 79 S.W.2d 672 (Tex. Civ. App. - San
Antonio 1935, writ dism'd w.0.j.); Attorney General
Opinion Nos. M-1261 (1972); WW-345 (1958). In saying that
the governor shall winsofar as possibleI* maintain a
particular geographical distribution of commission
members, House Resolution 153 expresses the legislature's
preference, but leaves implementation of this preference
to the governor's sole discretion. There is no longer any
requirement that each member of the Texas Water Commission
represent a different geographical area of the state.
In view of our conclusion that there is no such re-
quirement, we need not answer your questions that depend
upon a contrary conclusion.
SUMMARY
Section 5.052 of the Water Code, which
provides that the governor shall appoint
members of the Water Commission so that
"each member is from a different section of
the state" does not establish an enforceable
requirement and need not be followed.
Lb
Very truly y s,
a
JIM MATTOX
Attorney General of Texas
MARYNELLER
First Assistant Attorney General
LOU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAXLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Susan L. Garrison
Assistant Attorney General
p. 4287