Untitled Texas Attorney General Opinion

OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS

JOHN CORNYN

August 28,200l

The Honorable Tom Ramsay Opinion No. JC-0406
Chair, Committee on County Affairs
Texas House of Representatives Re: Creation of a fresh water supply district under
P.O. Box 2910 chapter 53 of the Water Code (RQ-0359-JC)
Austin, Texas 78768-2910

Dear Representative Ramsay:

You have asked this office a series of questions concerning the creation of fresh water supply
districts. We note at the outset that your concerns center around the creation of a particular district,
Kaufman County Fresh Water Supply District No. 1, and that your ultimate question is whether that
district was validly created. 1 This office does not find facts in the opinion process.* Accordingly,
to the extent that factual findings would be necessary in order to determine whether the procedures
mandated by chapter 53 of the Water Code governing the creation of a fresh water supply district
had been properly followed in the instant case, we could not make such a determination in an
attorney general opinion. Moreover, it has been suggested that section 42 of Senate Bill 1444,
adopted by the Seventy-seventh Legislature, effectively moots your question.3 Section 42 validates
the creation and all proceedings related to the creation of a conservation and reclamation district
created under article III, section 52 and article XVI, section 59 of the Texas Constitution such as the
Kaufman County Fresh Water Supply District No. 1. See Act of May 26,2001,77th Leg., R.S., ch.
1423,200l Tex. Sess. Law Serv. WL TX LEGIS 1423 (2001). This validation does not apply to
matters which were the subject of pending litigation on the effective date of Senate Bill 1444, nor
to governmental acts or proceedings that were misdemeanors or felonies. See id.

‘See Letter from Honorable Tom Ramsay, Chair, Committee on County Affairs, to Honorable John Comyn,
Texas Attorney General, at 1 (Feb. 21,200l) (on file with Opinion Committee) [hereinafter Request Letter].

2See, e.g., Tex. Att’y Gen. Op. Nos. JC-0020 (1999) at 2 (stating that investigation and resolution of fact
questions cannot be done in opinion process); M-l 87 (1968) at 3 (“[TJhis office is without authority to make . . . factual
determinations.“); O-291 1 (1940) at 2 (“[Tlhis . . . presents a fact question which we are unable to answer.“).

3See Letter from Larry F. York, York, Keller & Field L.L.P., to Susan Gusky, Chair, Opinion Committee, at
6 (July 13,200l) (on file with Opinion Committee).
The Honorable Tom Ramsay - Page 2 (JC-0406)

It is a well-settled principle that validating statutes are to be liberally construed. See, e.g.,
Perkins v. State, 367 S.W.2d 140,147 (Tex. 1963). “[T]he Legislature may validate a statute or act
of a political subdivision so long as it originally had power to enact or authorize it.” Tex. Att’y Gen.
Op. No. H-l 102 (1977). See also Yoakum County Water Control and Improvement Dist. v. First
State Bank, 449 S.W.2d 775,778 (Tex. 1969). No one has indicated to us, nor are we aware of any
reason to believe that either of the circumstances which would render validation inapplicable has
occurred here. Accordingly, unless litigation was pending when Senate Bill 1444 went into effect,
or certain governmental acts were misdemeanors or felonies, it would appear that the legislature has
validated the creation of this particular district. Nevertheless, for the purpose of offering such
guidance as we can for the creation of future districts, we will endeavor to answer the purely legal
questions involved and assume the facts as you have presented them to us as illustrations of more
general principles.

You first ask whether a petition to create such a district is sufficient “if it is not signed by 50
or a majority of the electors of the proposed district who own land in the proposed district.“4 Section
53.014 of the Water Code, setting forth the requisites of a petition to set up a fresh water supply
district, requires that such a petition contain “the signatures of 50 or a majority of the electors of the
proposed district who own land in the proposed district.” TEX. WATER CODEANN. fj 53.014(l)
(Vernon 1972). Accordingly, under the plain language of the statute, a petition not signed by either
fifty or a majority of the land-owning electors would appear to be insufficient.

However, a question has been raised as to the constitutionality of the requirement that the
petitioners be property owners within the district on the ground that conditioning the right to petition
on land ownership is as constitutionally suspect as conditioning suffrage on such a qualification.
The Supreme Court of the United States has struck down property qualifications for suffrage in a
variety of contexts. See Kramer v. Union Free Sch. Dist., 395 U.S. 621 (1969) (property
qualification in school board election violated Equal Protection Clause); Cipriano v. City of Houma,
395 U.S. 701 (1969) (striking town property qualification in municipal utility bond election); City
ofPhoenix v. Kolodziejski, 399 U.S. 204 (1970) (state may not restrict franchise in general obligation
bond elections to real property taxpayers).

On the other hand, certain limitations on the franchise have been held to be permissible. In
Salyer Land Co. v. Tulare Lake Basin Water Storage Dist., 410 U.S. 7 19 (1973), the Court held that
a provision of the California Water Code limiting the right to vote in water storage district general
elections to landowners and apportioning such votes according to the land’s assessed value did not
violate the Equal Protection Clause of the Fourteenth Amendment. See Salyer Land Co., 410 U.S.
at 728. Writing for the majority, Justice Rehnquist concluded that “the appellee water storage
district, by reason of its special limited purpose and of the disproportionate effect of its activities on
landowners as a group” was an exception to such cases as Kramer, Cipriano, and City of Phoenix.

4Request Letter, supra note 1, at 1 (quoting section 53.014 of the Water Code).
The Honorable Tom Ramsay - Page 3 (JC-0406)

Id. Similarly, in Ball v. James, 45 1 U.S. 355 (198 1) the Court upheld an Arizona statute limiting
the franchise in elections for the directors of an agricultural improvement and power district to
landowners, noting that the Kramer line of cases “do[es] not bear on the question of a special-
purpose governmental entity.” Ball, 451 U.S. at 366.

This office considered a somewhat related issue in Attorney General Opinion DM-484
(1998), in which the question was whether section 53.063 of the Water Code and the enabling act
of the Brookshire-Katy Drainage District, which barred a person who did not own land in a fresh-
water supply district fi-om service on the district’s governing body, violated the Equal Protection
Clause. We were unable to answer that question because the key analytical issues, namely whether
the district involved “has a special limited purpose and whether its activities disproportionately
affect landowners,” were issues requiring factual findings “which cannot be answered in the opinion
process.” Tex. Att’y Gen. Op. No. DM-484 (1998) at 1.

We note that the case law here is not perfectly on point, given that there is a distinction
between suffrage and the right to petition. The petition, in this instance, initiates the process at the
end of which the question of a right to vote would come into play. It might therefore be argued that
the principle of “one person, one vote” is not in fact implicated here. However, presuming that a
court were persuaded that these cases were indeed relevant, the same issues considered in DM-484
would arise in the context of section 53.014( 1)‘s requirement, and accordingly, while we must raise
the question of the constitutionality of that requirement, we cannot answer it in an attorney general
opinion.

Your second question is whether “a commissioners court has authority to approve a petition
more than 30 days after the petition was presented.“5 As we understand it, the facts leading to
this question are that a hearing was held by the Kaufman County Commissioners Court on
December 18, 2000, on a petition for the creation of a freshwater supply district that had been
submitted on November 22, 2000; that no action was taken by the court on December 18; that a
“workshop” on the petition was held on January 2,200l; and that the court approved the petition on
January 8, 2001.6

Section 53.016 of the Water Code requires that a hearing on the petition for the creation of
a fresh water supply district “must be held during the period beginning on the 15th day and ending
with the 30th day after the day the petition is presented.” TEX. WATER CODEANN. 8 53 .O16 (Vernon
1972). We note that, while the section directs when a hearing must be held, it does not by its terms
require that action be taken on the day the hearing is set. Section 53.019 sets forth the powers of the
commissioners court with respect to the hearing:

‘Request Letter, supra note 1, at 1.

6Request L etter, supra note 1, at 2.
The Honorable Tom Ramsay - Page 4 (JC-0406)

(a) The commissioners court shall have jurisdiction to determine all
issues pertaining to the sufficiency of the petition and shall allow any
interested person to appear before it in person or by attorney to offer
testimony relative to the sufficiency of the petition.

(b) The commissioners court may adjourn the hearing from day to
day as is necessary to complete the hearing.

(c) The commissioners court may make all orders necessary to
determine the matters before it.

Id. 8 53.019. In our view, section 53 .019 gives the court a broad measure of discretion in conducting
the hearing. Whether the situation you describe is an abuse of that discretion, and whether the court
substantially complied with sections 53 .O16 and 53 .O19 in setting the hearings and workshop are
again fact-based inquiries better addressed by a district court than by this office in the opinion
process. See, e.g., Tex. Att’y Gen. Op. No. JC-0282 (2000) at 4 (substantial compliance with notice
requirement generally is question of fact beyond purview of attorney general opinion).

You next ask whether the temporary supervisors ofthe water supply district board, appointed
by the commissioners court pursuant to section 53.020 of the Water Code, are empowered to call the
election on creating the district.7 As you point out, prior to the repeal of section 53.020 of the Water
Code by the Seventy-fourth Legislature* and the replacement of that section by the Seventy-fifth
Legislature,’ the responsibility for calling the election lay with the commissioners co~r-t.~~ Further,
the new version of section 53.020 does not explicitly vest the responsibility for calling the election
in the temporary supervisors. A letter from the Elections Division of the Secretary of State takes the
view that in this case “the political subdivision (i.e., the Fresh Water Supply District) orders the
election for its officers.“”

The Secretary of State is the chief elections officer of the State of Texas. See TEX. ELEC.
CODE ANN. 3 1.001(a) (Vernon Supp. 2001). “[S]o long as the Secretary of State’s interpretation of

7See Request Letter, supra note 1, at 1,5-7.

8See Act of May 25, 1995,74th Leg., R.S., ch. 715, 5 42, 1995 Tex. Gen. Laws 3755,3803.

‘See Act of May 30, 1997, 75th Leg., R.S., ch. 1070, 5 26, 1997 Tex. Gen. Laws 4074,408l.

“See Request Letter, supra note 1, at 5.

“Letter from Ann McGeehan, Director of Elections, Office of the Secretary of State, to Frank Van Court (June
27,200O) (on file with Opinion Committee).
The Honorable Tom Ramsay - Page 5 (JC-0406)

an [election law] provision is a reasonable one that does not do violence to the statutory language,
this office will defer to it.” Tex. Att’y Gen. Op. No. JC-0330 (2001) at 2. Section 3.004(b) of the
Election Code, upon which the Secretary of State’s decision was based, states: “If a law providing
for an election relating to the affairs of a political subdivision does not designate the authority
responsible for ordering the election, the governing body of thepolitical subdivision shall order the
election.” TEX. ELEC. CODE ANN. 8 3.004(b) (Vernon 1986) (emphasis added). The Secretary of
State, as it appears, has taken the view that the governing body of the political subdivision in
question is the temporary supervisors. You argue, on the other hand, that the water district does not
yet exist, and that accordingly, the temporary supervisors have no such authority.** Whatever the
relative merits of these positions, the view that the temporary supervisors constitute the governing
body of the political subdivision is not an unreasonable interpretation of the language of section
3.004(b). The Secretary of State having determined that the temporary supervisors were empowered
to call the election, this office will not gainsay that determination.

Your next questions concern whether certain actions taken by the temporary supervisors
violated the Open Meetings Act. l3 Again, while we can discuss the purely legal requirements of the
Open Meetings Act, we cannot determine in an attorney general opinion whether particular acts by
a particular governmental body violated the Act. Cf: Tex. Att’y Gen. Op. No. JC-0282 (2000). We
will assume arguendo the facts as you describe them for the purpose of elucidating the legal
implications; but this assumption is in no sense, as we have previously noted, a factual finding.

Your questions concern two meetings held by the temporary supervisors, one on
January 8,2001, and one on January 12,200l. Notice for both these meetings, as you inform us,
was posted on January 8,200l. At the meeting held on the 8th, an election was called for January
20th.14
As you correctly note, the Open Meetings Act, chapter 551, of the Government Code,
requires that “[t]he notice of a meeting of a governmental body must be posted in a place readily
accessible to the general public at all times for at least 72 hours before the scheduled time of the
meeting . . . . ” TEX. GOV’T CODE ANN. $ 55 1.043 (Vernon 1994). There is an exception to the
seventy-two hour rule for “an emergency or when there is an urgent public necessity.” Id.
55 1.045(a). “Emergency” is defined by the Act to mean “( 1) an imminent threat to public health
and safety; or (2) a reasonably unforeseeable situation.” Id. 8 55 1.045(b). Further, the governmental
body must “clearly identify the emergency or urgent public necessity in the notice or supplemental
notice under this section.” Id. 9 55 1.045(c). The mere recitation of the statutory language does not
clearly identify the emergency or urgent public necessity; rather, “an emergency is clearly identified

12RequestLetter, sup ra note 1, at 4.

13RequestLetter, sup ra note 1, at 1.

14Request Letter, supra note 1, at 3.
The Honorable Tom Ramsay - Page 6 (JC-0406)

when the reason for the emergency is stated in the notice.” Piazza v. City of Granger, 909 S.W.2d
529,553 (Tex. App.-Austin 1995, no writ) (emphasis added).

Further, there is “urgent public necessity” under the Act only if there is “(1) an imminent
threat to public health and safety; or (2) a reasonably unforeseeable situation.” TEX. GOV’T CODE
ANN. 9 55 1.045(b) (Vernon 1994). While the provision of fresh water is certainly of benefit to the
public health, it would strain credulity to suppose that a meeting had to be called on a few hours
notice to call for an election more than a week later to set up a fresh water supply district because
failing to call such a meeting would result in an imminent threat. Nor can the reason for such a
meeting be said to be reasonably unforeseeable when the meeting is called to take an action required
by statute. Cf: Piazza, 909 S.W.2d at 533 (development of “lack of confidence” in police officer
not unforeseeable given that statute provides it is a cause for termination). Taking the facts as you
state them, then, we believe that a court would hold that the notice for the January 8 meeting did not
state a valid reason for an emergency meeting under section 55 1.045 and that the situation prompting
the call for an emergency meeting was not an emergency or matter of urgent public necessity under
that section. Accordingly, the notice was inadequate to meet the requirements of the Open Meetings
Act.

Notice on January 8 of a meeting called for January 12, however, is timely under section
55 1.043. You suggest that some action was taken at the January 12 meeting either to “ratify” or to
take again the action taken at the January 8 meeting. A governmental body may not ratify an invalid
act. See Lower Colorado River Auth. v. City of San Marcos, 523 S.W.2d 641,646-47 (Tex. 1975).
However, it may take the action again at a properly noticed meeting; the action will generally be
effective fi-om the date of the meeting which complied with the Open Meetings Act. See Ferris v.
Tex. Bd. of Chiropractic Exam ‘rs, 808 S.W.2d 514,518-19 (Tex. App.-Austin 1991, writ denied).
We cannot determine, however, the invalidity of any particular action taken at the January 12
meeting for the reason we have already noted.

To reiterate in response to your final question, we cannot determine in the opinion process
the validity of the creation of the fresh water supply district in question because of the necessity to
make, in that regard, a myriad of factual determinations. Moreover, as we have noted, in the instant
case the question would appear to be moot because of legislative action.

It has been suggested to this office that, had the issue remained a live one, the proper forum
for such determinations would have been an election contest.” Pursuant to section 233.006 of the
Election Code, a contest on a ballot measure must be filed “not later than the 30th day after the date
the official result of the contested election is determined.” TEX. ELEC. CODE ANN. 3 233.006(b)
(Vernon Supp. 2001). Accordingly, it has been argued, these matters were mooted because no such

“See Letter from David B. Brooks, Attorney, to the Honorable John Comyn, Texas Attorney General (Apr.
26,200l) (on file with Opinion Committee).
The Honorable Tom Ramsay - Page 7 (JC-0406)

contest was filed? We are not persuaded that these matters effectively became beyond all review
on that account. For example, in State ex rel. City of Weatherford v. Town of Hudson Oak-s, 610
S.W.2d 550 (Tex. Civ. App.-Eastland 1980, writ ref d n.r.e.), the appellate court held that a quo
warranto proceeding to declare a municipal incorporation invalid could be maintained despite the
lapse of the thirty-day limit because such a proceeding was not an election contest. See City of
Weathefird, 610 S.W. 2d at 550-51.

Nor are we persuaded by the argument that any open meeting issues in a matter such as this
“can be properly asserted only in an election contest filed within 30 days.“17 In Rivera v. City of
Laredo, 948 S.W.2d 787 (Tex. App.-San Antonio 1997, writ denied), the San Antonio appeals court
was faced with a choice between “holding that the right to bring an action under the Open Meetings
Act extends to all situations except those in which a public official’s office can be challenged in a
quo warranto proceeding or. . . holding that the only situation in which a public official’s office can
be challenged in an action other than a quo warrant0 proceeding is where a violation of the Open
Meetings Act is asserted.” Rivera, 948 S.W.2d at 791. It chose the second approach, opening
certain matters to an essentially collateral attack, “recognizing the supreme importance placed on
open government .” Id.

We do not, therefore, agree that the questions presented here were foreclosed by the fact that
no election contest was filed. However it would appear that such questions were mooted by the
Seventy-seventh Legislature’s passage of Senate Bill 1444.

16See id. at l-2.

171d.at 2-3.
The Honorable Tom Ramsay - Page 8 (JC-0406)

SUMMARY

Senate Bill 1444, enacted by the Seventy-seventh Legislature
and effective June 17, 2001, validated the creation and all
proceedings related to the creation of a conservation and reclamation
district created under article III, section 52 or article XVI, section 59
of the Texas Constitution, such as the Kaufman County Fresh Water
Supply District No. 1.

Pursuant to section 53.014 of the Water Code, a petition for
the creation of a fresh water supply district must be signed by “50 or
a majority of the electors of the proposed district who own land in the
proposed district.” TEX.WATERCODEANN.8 53.014(Vemon 1972).
Whether the property-ownership requirement of section 5 3 .O14
violates the Equal Protection Clause of the United States Constitution
may depend on whether such a district has a “special limited purpose”
and whether its activities have a “disproportionate effect . . . on
landowners as a group.” Sayler Land Co. v. Tulare Lake Basin Water
Storage Dist., 410 U.S. 719,728 (1973).

The Secretary of State, the state’s chief election officer, has
determined that an election for the creation of a fresh water supply
district should be called by the temporary supervisors of that district.
Because this is not an unreasonable interpretation of section 3.004(b)
of the Election Code, the Office of the Attorney General will defer to
.
1t.

Attorney General of Texas

HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel
The Honorable Tom Ramsay - Page 9 (JC-0406)

SUSAN D. GUSKY
Chair, Opinion Committee

James E. Tourtelott
Assistant Attorney General, Opinion Comrnittee