Untitled Texas Attorney General Opinion

‘. ‘ November 6, 1990 Honorable George Pierce Opinion No.+Pl-1239 Chairman Urban Affairs Committee Re: Authority of a home rule Texas House of Representatives city to replace its appointed P. 0. Box 2910 representative to the board Austin, Texas 78768-2910 of directors of a special district (RQ-2132) Dear Representative Pierce: You have requested our opinion regarding the authority of the city of Garland to remove one of its appointed representatives to the board of directors _. of the North Texas Municipal Water District. The district was created in 1951 by special law: pacts 1951, 52d Leg., ch. 62, at 96. The district originally contained ten member cities, but you indicate that it now consists of eleven. Id. 5 2. Section 3(a) provides, "all powers of the District shall be exercised by a board of directors," whose members are "appointed by majority vote.of the governing body of each of the cities contained in the District. 111 Section 3(a) also declares, "each director shall serve for his term of office as herein provided, and thereafter until his successor shall be appointed and qualified." Each director serves a two-year term. Id. 5 3(a). Recently, the city council of Garland asked one of its two representatives to resign. When he refused to do so, the council purported to terminate his appointment and named a successor to the position. The original representative, however, continues to refuse to relinquish his position on the board, and contends that~.Goethe city council is without authority to remov%him. The city argues that~its charter furnishes the council with sufficient authority to remove the director. 1. A city of. more than 5,000 population, like Garland, is entitled to two members on the board of directors. p. 6591 ’ , Honorable George Pierce - Page 2 (JR-1229) Article IV of the charter of the city of Garland provides, in part: Sec. 1. Powers of the Council. All powers of the City and the determination of all matters of policy shall be vested in the Council. Without limitation of the special and general powers granted or delegated to the City by the Constitution, statutes or the Charter, the Council shall have power to: (A) Appoint the City Wanager, City Secretary and City Attorney pursuant to terms and conditions deemed appropriate by the City Council. Appoint the City Judge for a definite term not to exceed one (1) year, provided no Councilmember shall receive any such appointment during or within one (1) year of the expiration of the term for which he shall have been elected: (B) 'Establish other administrative departments and distribute the work of divisions: . . . . (F) Appoint the members of the Zoning Board of Adjustment, City Plan Commission and all other boards and commissions serving the City; . . . . Sec. 2. Removal of appointive officials. The Council may, upon the affirmative vote of five (5) members, remove its appointive officers without notice. A member of board or commission shall not be remov"ei' except for incompetency or misconduct i; office. Section 2 of article IV authorizes the council to "remove its appointive officers without notice.w In our opinion, the city#s representative on the board of directors of the North Texas Municipal Water District is not the kind p. 6592 1 1 ;t Honorable George Pierce - Page 3 (J&1239) of officer to which the charter refers. Section 1 of article IV specifically refers only to officers of the g&y. We believe it is clear that a member of the board of direc- tors of the district is an officer of the astrict, who happens merely to be m by the city council. Even if we were to deem a member of the board of directors an officer of the city, section 2 of article IV provides that 'Iamember of any board or commission shall not be removed, except for incompetency or misconduct in office." The city council has not in this instance made any finding of incompetency or misconduct in office: indeed, it has not even made such an allegation. We must conclude that, by the very terms of its charter, the city of Garland has failed to take any action that would have the effect of removing its representative on the district board of directors. SUMMARY \ The city council of Garland, Texas, lacks authority under its charter to remove its appointive representatives on the board of directors of the North Texas Municipal Water District. JIM MATTOX Attorney General of Texas MARY KELLER First Assistant Attorney General mu MCCREARY Executive Assistant Attorney General JUDGE ZOLLIE STEARLJIY Special Assistant Attorney General RENEA HICKS Special Assistant Attorney General RICK GILPIN Chairman, Opinion Committee Prepared by Rick Gilpin Assistant Attorney General p. 6593