Attorney General Opinion JM-1130

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, v or an 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