Untitled Texas Attorney General Opinion

THE ATITORNEY GENERAL
February 12, 1974
The Honorable Eugene T. Jenson Opinion No. H- 226
County Attorney
Chambers County Re: Constitutionality of Senate
Anahuac, Texas 77514 Bill 807, 63rd Leg., 1973,
concerning qualification of
members of governing
boards of certain conser-
vation and reclamation
Dear Mr. Jenson: districts
You have asked for an opinion of this office concerning the constitutionality
of sections added tomthe Water Code by Senate Bill 807 (Acts 1973, 63rd Leg.,
ch. 635, p. 1748) relating to the qualifications for membership on governing
boards of certain conservation and reclamation districts created under Article
3, g 52, and Article 16. 5 59, of the Texas Constitution.
The bill contains four similarly worded parts to be codified respectively
as $ $50.024, 51.0721, 53.0631, and 54.1021, in those chapters of the Water
Code, V.T.C.S., which govern water control and improvement districts, fresh
water supply districts and municipal utility districts. Our reference to sub-
sections of these four new sections will be singular but is intended to cover all
of them.
On June 16, 1973, this office issued Letter Advisory No. 53 to Governor
Briscoe concerning the constitutionality of subsection (a)(5)(B) of each section
to be added by Senate Bill 807. 7hat subsection would render ineligible a person
who “is or has been within the two years immediately preceding his election or
appointment to the board: ”
l’(B) a party to a contract with or along with a
developer of property in the~district relating to the
district or to property within the district, other than
a contract limited solely to the purpose of purchasing
p. 1051
The Honorable Eugene T. Jenson, page 2 (H-226)
or conveying real property in the district for the
purpose of either establishing a permanent residence
or establishing a commercial business within the
district. ”
In that opinion. we concluded that the quoted subsection would probably
be held unconstitutional under 4 3 of Article 1 of the Constitution of the State
of Texas and under the Fourteenth Amendment to the Constitution of the
United States, which both guarantee equal protection under state law.
Letter Advisory No. 53 limited our review of Senate Bill 807 to the
specific subsection referred to us by the Governor and stated that it should
not be understood as passing upon the constitutionality of any other provision.
Your request inquires about the constitutionality of “all other sections of
Senate Bill 807. ”
In conducting such a review, we must keep in mind that courts will seek
to uphold legislation, and will strike it down as unconstitutional only if there
is no other reasonable alternative. Cameron County v. Wilson, 326 S.W.2d
162 (Tex. 1959).
Subsection (b) of each section states:
“Within 60 days after the governing board determines
a relationship or employment which constitutes a dis-
qualification under Subsection (a) of this section, it
shall replace the person serving a* a member of the
governing board with a person who would not be dis-
qualified. I’
As we construe them, the new sections do not authorize a specific removal
procedure for a director but rather state as a policy that, upon the obvious
occurrence of a disqualification of a director and the determination of the fact
by the governing board, the office becomes vacant. Compare Pruitt v. Glen
Rose Independent School District, No. 1, 84 S.W.2d 1004 (Tex. 1935).
p. 1052
-\
The Honorable Eugene T. Jensen. page 3 (H-226)
It must be borne in mind, however, that if the fact of vacancy of the
office is reasonably disputed, the governing board lacks authority to
adjudicate that fact. The remedy would be by writ of quo warranto. See
Articles 5996, 5997, 6253 and 6257, V. T. C.S. ; McFarlin v. State, 272
S.W.2d 630 (Tex. Civ. App., Waco, 1954, err. ref’d. ,n. r. e. ).
In Honey v. Graham, 39 Tex. 1 (Tex. 1873). the Supreme Court said:
“The right to hold and exercise the functions of an
office to which the individual may have been duly elected,
may be regarded both as property and privilege, and
therefore the incumbent can only be deprived of his office
in the manner pointed out in . . . the constitution. It
may be safely admitted that more than one case might
occur where the governor would be authorized in
assuming that an office was vacant; but no case can
occur under our constitution wherein the governor
would be authorized to adjudge an office forfeited.
“Judgment belongs to the judiciary. A charge of
forfeiture can only be made out on proof - proof sufficient
to satisfy twelve unprejudiced minds.
“To forfeit his right to an office. the incumbent
must have done something sufficient in law to deprive
him of the office; and the constitution and laws secure to
the person so accused the right of traverse - the right of
trial - and no power on earth can lawfully deprive him of
these rights. ” (39 Tex. at 11 - 12)
We are of the opinion, therefore, that so long as Subsection (b) is
not interpreted as authorizing a governing board to conduct a removal
proceeding and to adjudge an office vacant over objection, it may con-
stitutionally authorize the board to replace a director who acknowledged
the vacancy of his office or whose office has been declared vacant by
proper judicial order.
p. 1053
4
:
0, The Honorable Eugene T. Jenson. page 4 (H-226)
Subsection (a) of each section declares a person disqualified to serve
on the board of a district in five situations, one of which was the subject of
Letter Advisory No. 53, supra. If this provision were to be interpreted so
as to disqualify those already elected to a board on August 27, 1973, when
Senate Bill 807 became effective, we think it would be considered unconsti-
tutional by the courts as violative of Article 1. 16. of the Texas Constitution,
which disqualifies retroactive legislation adversely affecting vested rights.
See Deacon v. City of Euless, 405 S.W.2d 59 (Tex. 1966); compare Childress
County V. Sachse, 310 S.W.2d 414 (Tex. Civ. App. , Amarillo, 1958, writ ref.,
n. r. e., 312 S.W.2d 380).
But it should not be assumed that the Legislature intended an unconsti-
tutional result. 53 Tex. Jur. 2d. Statutes, 182. The Act is subject to the
reasonable construction that it applies prospectively only so that it affects
directors either elected or appointed to office after its effective date or,
though elected earlier, change their status and become disqualified after
that date.
Subsection (a)(2) provides that a person is disqualified if “he is related
within the third degree of affinity or consanguinity to a developer of property
in the district, any other member of the governing board of the district, or
the manager, engineer, or attorney for the district. ” The term “developer”
is defined.
The wisdom of a legislative enactment is for the Legislature. Our only
concern with the disqualifications of subsection (a) is with their legality. As
we did in Letter Advisory No. 53, we here seek to determine the course the
courts would probably take if presented with the questions.
We have no doubt that a reasonable basis can exist for guarding the
governing boards of public bodies from nepotic influences, particularly where
one family member is likely to dominate the will of another. Although a dis-
qualification extending through the third degree of affinity goes far, we cannot
say that it would be held by the courts to be unreasonable as a matter of law.
Subsection (a)(2) provides a disqualification for anyone who is an employee,
or was “within the two years immediately preceding his election or appointment
to the board an employee of any developer of property in the district or any dir-
ector, manager, engineer, or attorney for the district.” (Emphasis added)
p. 1054
- _-._- ---~
.'.
'I .
The Honorable Eugene T. Jehson, page 5 (H-226)
..
We are of the opinion that insofar as this disqualification depends
upon present status, it probably will be upheld by the courts. Although
the strong presumption normally accorded legislative acts is weakened
where basic political rights are involved, [Compare Kramer v. Union
Free School Dist. No. 15, 395 U.S. 621 (1969); Bullock v. Carter, 405
U.S. 134 (1972): Williams v. Rhodes. 393 U.S. 23 (1968)l nevertheless,
in our opinion the disqualification is not on its face insupportable as a
matter of law.
We have concluded, however, that three other disqualified-class
descriptions, in addition to the one considered by Letter Advisory No. 53,
cut such a wide swath as to run afoul of Equal Protection provisions of
the state and federal conetitutlons. Texas Constitution, Article 1. 5 3,
U. S. Constitution, Amendment 14.. As we discussed in Letter Advisory
No. 53, “Equal protection requires that a legislative classification
should be reasonable for the purpose of the legislation, and must not be
arbitrary. ” Bjorgo v. Bjorgo. 492 S.W.2d 143 (Tex. 1966); Buchanan
v. State, 480 S.W.2d 207 (Tex. Crim. 1972); McDonald V. Board of
Election Commissioners of Chicago, 394 U.S. 802 (1969); Reed v. Reed,
404 U.S. 71 (1971).
We feel that the courts would find the subsection (a)(2) disqualification to
offices of those who might have been employees of a developer of property in
the district, or of a director, manager, engineer or attorney of the district
within two years immediately preceding his election or appointrnent,to be
unreasonably broad for the purpose of the legislation and to be arbitrary.
This conclusion is consistent with our reasoning in Letter Advisory No. 53.
The Legislature did not simply disqualify the present dual status of
employee-director. It made ineligible as directors those who law been
so employed within a two year period. In Letter Advisory No. 53, com-
menting upon the similar restriction of subsection (a)(5)(B), we said:
“Assuming the purpose of the . . . statute to be to
eliminate conflicts of interest between developers. on the
one hand, and boards of directors of water districts on the
other, we can see no reasonable relationship between the
classification of [the subsection] and that purpose. ”
p. 1055
,- \,
The Honorable Eugene T. Jenson, page 6 (H-226)
We do not believe that there is a reasonable basis for holding that
a person, as for example, a secretary who worked for an attorney two
years ago, should be disqualified from serving as a director of a dist-
rict merely because the attorney now represents the district, in the
absence of a factual showing of some continuing relationship or influence
which would affect her ability to serve. And compare Cleveland Board
of Education v. La Fleur, u. s. -, 42 LW 4186, (January 21, 1974).
The same holds true for the classification of subsection (a)(4) which
not only disqualifies those who serve simultaneously as an attorney,
consultant. engineer, a manager, architect. or in some other professional
capacity for the board or for a developer in connection with property
within the district, but those who have previously served in such capa-
cities within a two year period. We think the proscriptions against
previous service and previous employment are invalid.
Letter Advisory No. 53 was addressed only to subsection (a)(5)(B) of
Senate Bill 807. We went no further than the requested opinion required.
and the validity of other particular provisions, including that of subsec-
tion (a)(5)(B), was not placed before us for specific review. It suffers,
however, from the same deficiency as the others discussed above, i. e.,
not only are persons presently contracting with the governing board of
the district barred from office, but also those who contracted with it
during the two years precedingtheir election or appointment (notwith-
standing that such contracts may have long since terminated). In our
opinion, disqualification for the office cannot be reasonably based upon
prior contractual relationships over such an extended period without the
existence of other factors indicating an inability to serve the district
without bias.
We have examined subsections (c) of the statutes, the penal provisions,
to determine their constitutionality. They provide:
“Any person who willfully violates the provisions
of Subsection (a) of this section is guilty of a misdemeanor,
and on conviction, shall be fined not less than $100 nor
more than $1,000. ”
We have difficulty with this provision because Subsection (a) does no more
than describe those who are disqualified. Disqualification hinges, not neces-
p. 1056
” /
. .. .
The Honorable Eugene T. Jensen. page 7 (H-226)
sarily on the commission of an act, but often on the relationship of a director
to another person or business entity, a relationship over which the director
might have no control.
“A [criminal] statute which either forbids or requires
the doing of an act in terms so vague that men of
common intelligence must necessarily guess at its
meaning and differ as to its application, violates the
first essential of due process.”
Connally v. General Construction Co., 269 U.S. 385, 391 (1926). A statute
which purports to impose criminal sanctions must be certain and definite
in its proscriptions to comply with due process requirements. See Texas
Liquor Control Board v. Attic Club, 457 S.W.2d 41 (Tex. 1970); Attorney
General Opinion H-15 (1973).
However, the courts are required to adopt such a construction of penal
statutes, if possible, to uphold their constitutionality. State v. Shoppers
World, Inc., 380 S. W. 2d LO7 (Tex. 1964).
In our opinion, Subsections (c) may and should be interpreted to pro-
vide that it is a penal offense to willfully, i. e., knowingly, occupy an office
as director of a district and exercise the rights of a director when disqualified
under subsection (a). We are not authorized to question the wisdom of the
legislation. Putting that question aside, we cannot say that the statute, so
construed, is too vague to give the constitutionally required notice.
It has been suggested that the operation of Senate Bill 807 would
unconstitutionally impair the obligations of contracts behveen the district
and third parties if it required the vacation of office by the district’s board
of directors and no’others owning property within the district could legally
qualify for election or appointment. But such a situation would be no differ-
ent from that which would occur if qualified persons refused to be candidates,
or if, though elected or appointed, they refused to meet and act as directors.
,. ‘:
.:
p. 1057
r
The Honorable Eugene T. Jenson, page 8 (H-226
We do not see that the mere enactment of this legislation has impaired
the obligations of any valid contracts. Compare Texas State Board of Barber
Examiners v. Beaumont Barber College, Inc., 454 S.W.2d 729 (Tex. 1970).
Moreover, subsection (e) is specifically designed to protect innocent persons
dealing with the board of directors of a district.
As we pointed out in Letter Advisory No. 53, though Senate Bill 807
contains no severability provision. Article 5429b-2, 3.12, V.T.C.S., the
Code Construction Act, provides for severability of code provisions if feasible.
We do not think the probable unconstitutionality of the prior status provisions
of subsections (a)(2), (a)(5)(A), or (a)(5)(B), or, for that matter, the possible
unconstitutionality of the penal provisions, if in fact subsequently found by
a court, will invalidate the rest of the provisions. We think valid and work-
able statutes will remain.
SUMMARY
Additions to the Water Code by Senate Bill 807. 63rd
Leg.. providing for the replacement of directors who
vacate their office because of disqualification, are con-
stitutional. The penal provisions, as construed and
interpreted in this opinion are constitutional. Certain
of the disqualifications, having no reasonable basis,
are unconstitutional.
Very truly yours,
DAVID M. KENDALL, Chairman
Opmion Committee
p. 1058