Honorable Terra1 Smith Opinion No. JM-1130
Chairman
Natural Resources Committee Re: Familial relationships as
House of Representatives a disqualification for mem-
P. 0. Box 2910 bership on the board of the
Austin, Texas 78768-2910 Barton Springs-Edwards Aquifer
Conservation District
(RQ-1799)
Dear Mr. Smith:
you advise that two people who are related to each
other as first cousins were elected directors of the Barton
Springs-Edwards Aquifer Conservation District. One was
elected from precinct 3 and the other was elected from
precinct 5. Terms for the directorships expire at different
times, but both directors were elected in the same election.
You ask if a newly revised provision of the Water Code
applies to them. Specifically, you ask:
1. Does Texas Water Code Section 50.026(a),
as amended by H.B. 2498, apply to the Barton
Springs-Edwards Aquifer Conservation Dis-
trict?
2. If so, does it operate to disqualify the
directors of Precincts 3 and 5?
3. If so, where both directors were elected
at the same election, how should the District
determine which one is to be disqualified?
4. Is the amendment constitutionally im-
permissible as a special law?
Prior to its amendment in 1989, section 50.026(a)(l) of
the Water Code provided:
(a) A person is disqualified from serving
as a member of a governing board of a
district orooosinc to orovide or actually
p. 5944
Honorable Terra1 Smith - Page 2 (JM-1130)
providinu water and sewer services or either
of these services to household users as the
principal functions of the district and
created by special act of the legislature if:
(1) .he is related within the third
degree of affinity or consanguinity to a
developer of property in the district, z!~y
other member of the aovernina board of the
district, or the manager, engineer, or
attorney for the. district[.] (Emphasis
added.)
Section 50.026(a)(l) has now been amended to read:
(a) A person is dxqualified from serving
as a member of the governing board of a
district which was created under this title
or by special act of the legislature, which
2
is rovid'n or the
district's
r.
sewe aina or
protection facilities or services, or an v of
these
1.
commercia 1 users, other than
agricultural or irrigation users; and which
district includes less than all the territory
in at least one countv and which, if located
within the coraorate area of a citv or
>
cities include less
than 75 nercent of the incornorated area of
the citv or cities if:
(1) he is related within the third
degree of affinity or consanguinity to a
developer of property in the district, any
&
pthe membe
district, or the manager, engineer, or
attorney for the district.1 (Emphasis
added.)
1. Because the restrictions involve familial relation-
ships, statutes such as these are sometimes called "nepo-
tism" statutes, but that characterization is a misnomer.
Nepotism involves favoritism shown a relative on the basis
(Footnote Continued)
P. 5945
.
Honorable Terra1 Smith - Page 3 (JM-1130)
Acts 1989, 71st Leg., ch. 328, 9 1, at 1292.
By way of explanation and background your letter
advises:
The Barton Springs-Edwards Aquifer Consefva-
tion District ("the District") is an under-
ground water conservation district that was
created pursuant to article III, Section 52
of the Texas Constitution and Chapter 52 of
the Texas Water Code, as amended by Senate
Bill 986 (Act of June 17, 1987, Chapter 429,
1987 Tex. Sess. Law Serv. 3967). The purpose
of the district is "to provide for the con-
servation, preservation, protection, recharg-
ing, and prevention of waste" of the
underground waters of the Edwards Aquifer.
(Tex. Water Code Section 52.021). The
Aquifer has been designated as a sole-source
aquifer; that is, it is generally the only
water supply available. The District's
boundaries encompass portions of Hays,
Travis, Caldwell and Bastrop Counties.
Approximately eighty percent of the water
pumped from the aquifer within the District's
boundaries is used for domestic and municipal
water supplies. The District is actively
engaged in protecting the waters of the
aquifer. The aquifer's water is potable as
produced from the ground, and is used by the
District's residents for household, commer-
cial and industrial purposes. The District
does not sell water as a public utility:
however, the District permits wells and
collects a use fee, calculated on the amount
of annual pumpage from the Aquifer, for each
well for which a permit is issued which is
not exempted from regulation. The District
(Footnote Continued)
of the relationship by someone in a hiring or supervisory
capacity. See Collier v. Civil Serv. Comm'n of Wichita
Ed)764 S.W.2d 364,(Tex. App. - Fort Worth 1989, writ
. Here, both directors were elected by the people;
neither was hired by the other, and neither supervises the
other.
p. 5946
~.
Honorable Terra1 Smith - Page 4 (JM-1130)
does not regulate development or land use
within its boundaries except to the extent
that new wells are necessary. All new wells
drilled require a permit from the District.
Whether section 56.026(a) applies to the district here
is a fact question that we cannot determine in the opinion
process of this office. You advise that the district was
created under chapter 52 of the Water Code, so it was
created "under this title" [title 4 of the code] within the
meaning of section 50.026(a), and it is clearly providing
potable water %ervicesl' to household, commercial, or indus-
trial users. But whether it does so (or proposes to do so)
"as the district's principal function" is a fact question --
as is the matter of its territorial compass.
First cousins are related within the third degree by
consanguinity. See Attorney General Opinion JM-741 (1987).
If section 50.026(a) does apply, we think it operates to
disqualify the directors of precincts 3 and 5. See Attorney
General Opinion JM-296 (1985). In that event, the district
need not determine which of them are disqualified: they are
both disqualified. Subsection 50.026(a)(6) specifies that
persons are disqualified from serving on the board of such a
district if "during the [director's] term of office [the i
director] fails to maintain the qualifications required by
law to serve as a director." Acts 198?, 71st Leg., ch. 328,
5 1, at 1292. Both men, elected at the same time, failed to
maintain the necessary qualifications. Neither man was
related to a director at the time they stood for office, but
afterward, both assumed office notwithstanding their rela-
tionship.
Although the peculiarity of the territorial basis upon
which the statute applies to districts makes it suspect as
a special or local law in violation of article III, section
56, of the Texas Constitution, we cannot say that it is vio-
lative of the provision as a matter of law. Again, we
cannot determine factual matters in the opinion process of
this office, anti there is an insufficient factual basis for
reaching a decision as a matter of law. &g Attorney
General Opinion JM-296.
Section 50.026(a)(l) operates to disqual-
ify first cousins elected at the same time as
directors of a district to which the statute
p. 5947
Honorable Terra1 Smith - Page 5 (JM-1130)
applies. Both are disqualified where both
assume office and serve. Facts cannot be
determined in the opinion process of the
Attorney General's Office and there are
insufficient facts given to determine whether
section 50.026(a) applies to the Barton
Springs-Edwards Aquifer Conservation District
or whether the statute, as applied to the
district, constitutes an unconstitutional
local or special law.
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 Bruce Youngblood
Assistant Attorney General
p. 5948