Untitled Texas Attorney General Opinion ( 2002 )

OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS
JOHN CORNYN
October 3 1,2002
The Honorable Jeff Wentworth Opinion No. JC-0569 --..-
Chair, Committee on Redistricting
Texas State Senate Re: Consequences of the defeat of a ballot
P.O. Box 12068 proposition confirming the creation of the
Austin, Texas 787 11 Southeast Trinity Groundwater Conservation
District, and related questions (RQ-0544-JC)
The Honorable Edmund Kuempel
Chair, Committee on State Recreational
Resources
Texas House of Representatives
P.O. Box 12068
Austin, Texas 78711
Dear Gentlemen:
In November 2001 voters in the Southeast Trinity Groundwater Conservation District (the
“STGCD”) defeated a ballot proposition confirming the STGCD’s creation, although initial directors
were elected to the STGCD’s board. You ask several questions about the consequences of this
election.’ Before we lay out your questions, we will summarize some of the relevant laws and the
facts.
The STGCD covers part, although not all, of Coma1 County and lies within the Hill Country
Priority Groundwater Management Area. See Act of May 28,1999,76th Leg., R.S., ch. 133 1, 8 2(d),
1999 Tex. Gen. Laws 4536,4538; see also 30 TEX. ADMIN.CODE $9 294.30(2), .34 (2002) (Texas
Commission on Environmental Quality, Definitions and Designation of Hill Country Priority
Groundwater Management Area) (defining term “priority groundwater management area” and
designating Hill Country Priority Groundwater Management Area). It was created by a 1999
enactment that also created twelve other groundwater conservation districts under article XVI,
section 59 of the Texas Constitution. See Act of May 28,1999,$1 (a)( 1 l), (b), 1999 Tex. Gen. Laws
at 4536. Although the 1999 legislation created the STGCD, it specified two additional steps in the
district’s establishment. First, the district must be ratified by the Seventy-seventh Legislature in
2001. See id. 6 15,1999 Tex. Gen. Laws at 4539. Second, after the district is ratified, its temporary
‘Letter from Honorable Jeff Wentworth, Chair, Senate Committee on Redistricting, Texas State Senate, and
Honorable Edmund Kuempel, Chair, House Committee on State Recreational Resources, Texas House of
Representatives, to Honorable John Comyn, Texas Attorney General (May 2,2002) (on file with Opinion Committee)
[hereinafter Request Letter].
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The Honorable Edmund Kuempel - Page 2
directors, whom the 1999 Act directs the county commissioners court to appoint, see id. 8 8(a), 1999
Tex. Gen. Laws at 4538, must “call and hold an election to confirm the district and to elect the initial
directors.” Id. § 10(a), 1999 Tex. Gen. Laws at 4539. If the majority of those who vote elect to
confirm the district, the board of temporary directors must declare the winning, qualified initial
directors and notify the Texas Commission on Environmental Quality (c‘TCEQ”)2 of the results of
the initial directors’ election. See id. 5 10(c), 1999 Tex. Gen. Laws at 4539. If the ballot proposition
establishing the district is not confirmed “before the fourth anniversary” of the l-999 Act’s effective
date, the district dissolves on that date, although the district must remain organized “until all debts
are paid.” Id. 8 10(g), 1999 Tex. Gen. Laws at 4539.
In 2001 the Seventy-seventh Legislature enacted two laws ratifying the STGCD.3 The later-
enacted legislation, which was adopted on May 27,200l (“the May 27,200l Act”), relates generally
to “the development and management of’ the state’s water resources and, among other things,
ratifies several of the groundwater conservation districts created in 1999, including the STGCD. Act
of May 27, 2001, caption, 2001 Tex. Gen. Laws at 1991. On the other hand, the earlier enacted
legislation, which was adopted on May 25,200l (“the May 25,200l Act”), pertains solely to the
STGCD, ratifying it and further defining the STGCD’s “administration, powers, duties, operation,
taxing authority, and financing.” Act of May 25,2001, caption, 2001 Tex. Gen. Laws at 3292.
In provisions relating specifically to the STGCD, the May 27,200 1 Act ratifies the STGCD,
“a locally controlled groundwater district, to protect, recharge, and prevent” groundwater waste and
“to control” water subsidence from “groundwater reservoirs.” Act of May 27,200 1, 9 3.100 1,200l
Tex. Gen. Laws at 2041. Compare id. 0 3.1002,2001 Tex. Gen. Laws at 2041 (ratifying STGCD’s
creation) with Act of May 25,2001,§ 1,200l Tex. Gen. Laws at 3292 (same). Except as provided
by that portion of the May 27, 2001 Act that relates specifically to the STGCD, the May 27 Act
grants the STGCD those “permitting and general management powers” that chapter 36 of the Water
Code grants to a groundwater conservation district. See Act of May 27,2001, 8 3.1006(a), 2001
Tex. Gen. Laws at 2042; Act of May 28,1999,§ 5(a), 1999 Tex. Gen. Laws at 4538 (same); cJ: Act
of May 25,2001,§ 5,200l Tex. Gen. Laws at 3294 (“Except as otherwise provided by this Act, the
[STGCD] has all of the rights, powers, privileges, authority, functions, and duties” state’s general
law provides, including Water Code chapter 36.). The STGCD is governed by a board of five
directors, and, the May 27, 2001 Act notes, “[t]emporary directors have been appointed by [the]
Coma1 County Commissioners Court.” Act of May27,2001,§ 3.1007(a)-(b), 2001 Tex. Gen. Laws
at 2043; cJ: Act of May 25,2001,§ 6(a)-(b), 2001 Tex. Gen. Laws at 3294. The temporary directors
are to serve until “initial directors” are “elected at a confirmation election,” and the initial directors
‘Effective September 1,2002, the name of the Texas Natural Resource Conservation Commission changed to
the Texas Commission on Environmental Quality. See Act of May 28,2001,77th Leg., R.S., ch. 965, 0 18.01(a)(l),
2001 Tex. Gen. Laws 1933, 1985; “TNRCC is Now the TCEQ,” at ht@://www.tceo.state.tx.us/l63.234.20.106/AC/
corm-n exec/name channe2.html.
3See Act ofMay 27,2001,77thLeg., RX, ch. 966, art. III, part lo,2001 Tex. Gen. Laws 1991,2041-45; Act
of May 25, 2001, 77th Leg., R.S., ch. 1335, $ 1, 2001 Tex. Gen. Laws 3292, 3292. We will refer to these two acts
collectively as “the 2001 Acts.”
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serve “until permanent directors are elected” at a later date. Act of May 27,200 1, 8 3.1007(b), (d),
2001 Tex. Gen. Laws at 2043; cf: Act of May 25,2001, 0 6(b), (d), 2001 Tex. Gen. Laws at 3294.
The 2001 Acts require the STGCD’s temporary directors to call a confirmation election after
September 1, 2001, to determine three issues: (1) to confirm the district’s establishment; “(2) to
elect five initial directors; and (3) to authorize the district to impose a tax.” Act of May 27,2OOl,
0 3.1008(a), 2001 Tex. Gen. Laws at 2044; accord Act of May 25,2001, 9 8(a), 2001 Tex. Gen.
Laws at 3295. The Coma1 County Cornmissioners Court must “pay the expenses of conducting the
confirmation and initial directors election, subject to reimbursement” either from the district if the
voters confirm the district’s establishment or from available revenues, “including funds allocated
under Section 36.160, Water Code, if’ the district’s establishment is defeated. Act of May 27,2001,
8 3.1008(f), 2001 Tex. Gen. Laws at 2044; cJ: Act of May 25,2001,§ S(f), 2001 Tex. Gen. Laws
at 3296 (requiring Coma1 County Commissioners Court to pay election expenses, “subject to
reimbursement from available revenues” if district’s establishment is confirmed “or from funds
allocated under Section 36.160, Water Code,” if district’s establishment is defeated). In the event
the district’s establishment is defeated, the May 27,200l Act permits the “temporary directors” to
hold three subsequent elections to conk-n the district’s establishment:
If the district is defeated, the temporary directors may call and hold
subsequent elections to confirm establishment of the district. A subsequent election
may not be held earlier than the first anniversary of the date on which the previous
election was held. If the district has not been confirmed at an election held under this
section before the fourth anniversary of the effective date of this part, the district is
dissolved on that date, except that any debts incurred shall be paid and the
organization of the district shall be maintained until all debts are paid.
Act of May 27, 2001, 8 3.1008(g), 2001 Tex. Gen. Laws at 2044; accord Act of May 25,2001,
§$ 8(g), 15(b), 2001 Tex. Gen. Laws at 3296.
Chapter 36 of the Water Code pertains to groundwater conservation districts generally. See
TEX. WATER CODE ANN. 8 36.0015 (Vernon Supp. 2002). Section 36.017, which is particularly
relevant to many of the issues you raise, requires a groundwater conservation district to dissolve
immediately if the voters elect not to confirm the district’s establishment:
(f) If a majority of the votes cast at the election favor the creation of the
district, the temporary board shall declare the district created and shall enter the result
in its minutes.
(g) If a majority of the votes cast at the election are against the creation of
the district, the temporary board shall declare the district defeated and shall enter the
result in its minutes. The temporary board shall continue operations in accordance
with Subsection (h).
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(h) If the majority of the votes cast at the election are against the creation of
the district, the district shall have no further authority, except that any debts incurred
shall be paid and the organization of the district shall be maintained until all the debts
are paid.
(i) If a majority of the votes cast at the election are against the levy of a
maintenance tax, the district shall set production fees to pay for the district’s
regulation of groundwater in the district, including fees based on the amount of water
to be withdrawn from a well.
TEX. WATER CODEANN. 8 36.017(f)-(i) (Vernon Supp. 2002).
You inform us that the STGCD held the required confirmation election in November 2001.
See Request Letter, supra note 1, at 1. The voters rejected the proposition establishing the STGCD,
as well as the proposition authorizing the district to impose a tax. See id. Nevertheless, the voters
selected a slate of initial directors. See id. Based on the circumstances, you ask nine questions,
which you group into three categories:
I. Future election issues
1. Do the temporary directors or the initial directors elected in the
November[] 2001 election call and hold subsequent elections?
2. Even though doing so is not expressly authorized, may a proposition
authorizing the district to impose a maintenance tax be included on the ballot in
future confirmation elections? ,
3. Is the county in which the district is located required to fund future
confirmation elections if the district is unable to do so?
4. Is the holding of future confirmation elections permissible or is it
mandatory?
5. Do elections have to be held in each of the three years after the initial
election?
6. May either the temporary directors or the initial directors dissolve the
district immediately without holding future confirmation elections?
II. Authority of district subsequent to confirmation election
1. What authority does the district have in the interim period between the
recent defeat of the confirmation proposition in the November 2001 election and
subsequent future confirmation elections that can be conducted in each of the next
three years prior to the district’s automatic dissolution in 2005?
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2. Do the temporary directors have the authority to dissolve the district prior
to the district’s automatic dissolution in the absence of a successful confirmation
election?
III.Creation by the Texas Natural Resources Conservation Commission
U’CEQI) o f a groundwater conservation district
=-a--
If the Southeast Trinity Groundwater District is dissolved immediately in
response to the defeat of the proposition confnrning the district at the confirmation
election in November[] 2001, is the [TCEQ] required to establish a groundwater
conservation district in Coma1 County on land that is included within the boundaries
of the Hill Country Priority Groundwater Management Area?
Request Letter, supra note 1, at 3-5.
With multiple legislative acts at issue, it is useful to articulate the appropriate rules governing
conflicts between various statutes generally. Our primary goal is to harmonize all of the acts, so that
each is fully effective. See Exparte Kuester, 21 S.W.3d 264,267 (Tex. Crim. App. 2000) (en bane).
Where a later-enacted provision cannot be harmonized with an earlier-enacted provision, however,
the later-enacted provision prevails. See TEX. GOV’T CODE ANN. $ 3 12.014(a) (Vernon 1998)
(directing us to construe irreconcilable statutes enacted at same legislative session so that later-
enacted statute prevails); cJ: id. $3 11.025(a) (same pertaining to codes). Similarly, where a general
provision cannot be harmonized with a specific provision, the specific provision prevails as an
exception to the general provision. See id. 8 3 11.026; Sam Bassett Lumber Co. v. City of Houston,
198 S.W.2d 879, 881 (Tex. 1947) (stating that specific act is properly regarded as exception to
general law on same subject). A specific provision prevails over a conflicting general provision even
if the specific provision was enacted earlier. See Hallum v. Tex. Liquor Control Bd., 166 S.W.2d
175, 177 (Tex. Civ. App.-Dallas 1942, writ ref d) (quoting 59 C.J. Statutes fj 623(d), at 1057
(1932)); accord Font v. Carr, 867 S.W.2d 873,881 (Tex. Civ. App.-Houston [ 1st Dist.] 1993, writ
dism’d w.o.j.).
For the purposes of the issues you raise, the provisions relating to the STGCD in the two
2001 Acts appear to be consistent. To the extent either of the 2001 Acts cannot be harmonized with
the May 28, 1999 Act, a 2001 Act prevails. See TEX. GOV’T CODE ANN. 9 312.014(a) (Vernon
1998) (directing us to construe irreconcilable statutes enacted at same legislative session so that later-
enacted statute prevails); cJ: id. 8 3 11.025(a) (same pertaining to codes). Finally, the 1999 and 2001
Acts prevail over irreconcilable general provisions in chapter 35 or 36 of the Water Code. See Act
of May 27,2001, 0 3.1012,2001 Tex. Gen. Laws at 2045 (stating explicitly that May 27,200l Act
prevails over Water Code chapter 36); TEX. WATER CODEANN. 0 36.052 (Vernon 2000) (stating
that, with exception of some named sections of chapter 36, “a special law governing a specific
district . . . prevail[s] over” chapter 36).
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I. Future election issues
You ask first whether it is the temporary directors or the newly elected initial directors who
may call subsequent confirmation elections. See Request Letter, supra note 1, at 3. Chapter 36 of
the Water Code does not apply to this issue; rather, the 1999 and 2001 Acts resolve the issue.
We conclude that subsequent elections may be called and held by the board of temporary
directors, not the board of initial directors. The 2001 Acts expressly authorize temporary directors
to “call and hold subsequent elections.” Act of May 27,2001, 8 3.1008(g), 2001 Tex. Gen. Laws
at 2044; Act of May 25,2001, 8 8(g), 2001 Tex. Gen. Law at 3296. Moreover, under the May 28,
1999 Act, the winners of the initial directors’ election may be declared only if the district is
confirmed at the election:
(c) If the district is confirmed at the election, the temporary board of
directors, at the time the vote is canvassed, shall:
(1) declare the qualified person who receives the most votes
for each position to be elected as the initial director for that position;
and
(2) include the results of the initial directors’ election in the
district’s election report to the [TCEQ].
Act of May 28,1999,§ 10(c), 1999 Tex. Gen. Laws at 4539 (emphasis added). The 1999 Act alone
provides for this procedural matter, and it therefore comports with the 2001 Acts and chapter 36 of
the Water Code. See Exparte Kuester, 2 1 S.W.3d at 267 (emphasizing importance of harmonizing
legislation so that all is effective). Because the STGCD was not confirmed at the November 2001
election, the board of temporary directors lacks authority to declare the winning initial directors and
to report the names to the TCEQ. Accordingly, the temporary directors continue in office, and until
the STGCD is confirmed, only the board of temporary directors may call and hold a subsequent
election.
You ask next whether “a proposition authorizing the [STGCD] to impose a maintenance
tax [may] be included on the ballot in future confirmation elections.” Request Letter, supra
note 1, at 3.
We conclude that the board of temporary directors may not put the issue of a maintenance
tax on the ballot in subsequent confirmation elections. The 2001 Acts specifically provide for the
calling of subsequent elections only “to confirm” the STGCD’s establishment. See Act of May 27,
2001,§ 3.1008(g), 2001 Tex. Gen. Laws at 2044; Act ofMay25,2001,§ 8(g), 2001 Tex. Gen. Laws
at 3296; cJ: Act of May 28, 1999, 6 10(g), 1999 Tex. Gen. Laws at 4539 (stating that, if district’s
establishment has not been confirmed before fourth anniversary of 1999 Act’s effective date, district
is dissolved). By their terms, the 2001 Acts distinguish between the confirmation election and the
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initial directors’ election, and we believe that, by extension, they also distinguish a tax election.
First, the relevant section is titled “Confirmation Election and Election of Initial Directors.”
Act of May 27,2001, 5 3.1008 title, 2001 Tex. Gen. Laws at 2044; Act of May 25,2001, 9 8 title,
2001 Tex. Gen. Laws at 3295. But see TEX. GOV’T CODEANN. 4 3 11.024 (Vernon 1998) (stating
that title does not limit or expand statute’s meaning). Additionally, the section lists three separate
propositions that may be included on the election ballot: (1) confirmation of the STGCD’s
establishment; (2) election of initial directors; and (3) authorization to impose a tax. See Act of May
27,2001, 8 3.1008(a), 2001 Tex. Gen. Laws at 2044; Act of May 25,2001, 5 8(a), 2001 Tex. Gen.
Laws at 3295. Finally, subsection (a) of the relevant section lists as one of the propositions “to
confirm establishment of the district,” and subsection (g), which authorizes the board of temporary
directors to call and hold subsequent elections uses identical language: “If the district is defeated,
the temporary directors may call and hold subsequent elections to confirm establishment of the
district.” Act of May 27, 2001, 8 3.1008(a), (g), 2001 Tex. Gen. Laws at 2044; Act of May 25,
2001,§ 8(a), (g), 2001 Tex. Gen. Laws at 3295 (emphasis added). While the 2001 Acts specifically
require initial directors to be elected at the confirmation election, see Act of May 27, 2001,
8 3.1007(d), 2001 Tex. Gen. Laws at 2043 (requiring initial directors to be elected at confirmation
election); Act of May 25, 2001, 5 6(d), 2001 Tex. Gen. Laws at 3294 (same), there is no similar
requirement that the maintenance-tax option be on a confirmation-election ballot. Once the
STGCD’s creation is confirmed, it may conduct an election to levy taxes to pay the district’s
“maintenance and operating expenses.” TEX. WATER CODEANN. 8 36.201(c) (Vernon 2000).
We conclude, in answer to your third question, that the county in which a district is located
must “fund future confirmation elections if the district is unable to do so.” Request Letter, supra
note 1, at 3. The 2001 Acts explicitly require the Coma1 County Commissioners Court to pay the
expenses of a confirmation election: “The Coma1 County Commissioners Court shall pay the
expenses of conducting the confirmation and initial directors election.” Act of May 27, 2001,
8 3.1008(f), 2001 Tex. Gen. Laws at 2044; Act of May 25, 2001, 9 8(f), 2001 Tex. Gen. Laws
at 3296. If the district is confirmed, the STGCD may reimburse Coma1 County. See Act of
May 27,2001,§ 3.1008(f), 2001 Tex. Gen. Laws at 2044; Act of May 25,2001,§ 8(f), 2001 Tex.
Gen. Laws at 3296.
In answer to your fourth question, we conclude that the board of temporary directors may call
confirmation elections subsequent to the initial election, but it is not required to do so. The 2001
Acts use permissive, not mandatory, language. They provide that, if the STGCD is defeated, “the
temporary directors may call and hold subsequent elections.” Act of May 27, 2001, 8 3.1008(g),
2001 Tex. Gen. Laws at 2044 (emphasis added); Act of May 25,2001, (i 8(g), 2001 Tex. Gen. Laws
at 3296 (same); Act of May 28, 1999, 8 10(g), 1999 Tex. Gen. Laws at 4539 (same). The term
“may” generally denotes permission to perform a certain act, but it does not require that the act be
done. See BRYANA. GARNER,ADICTIONARYOFMODERNLEGALUSAGE354,354 (1987). Neither
the 1999 Act nor chapter 36 of the Water Code apply to this issue because neither can be harmonized
with the 2001 Acts, which prevail in the event of a conflict. The 1999 Act, which provides that a
district will be dissolved if its “establishment . . . has not been confirmed,” does not clearly permit
the board of temporary directors to call and hold subsequent elections. See Act of May 28, 1999,
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8 10(g), 1999 Tex. Gen. Laws at 4539. Section 36.017 of the Water Code does not permit
subsequent elections, but rather precludes the board of temporary directors to do anything but pay
its debts. See TEX. WATER CODEANN. 8 36.017(g)-(h) (Vernon Supp. 2002).
In a related question, you ask whether the board of temporary directors must call and conduct
a confirmation election in “each of the three years after the initial election.” Request Letter, supra
note 1, at 3. It need not. Under the 2001 Acts, if the STGCD’s board of temporv directors chooses
to call a confirmation election subsequent to an election in which the district’s confirmation was
defeated, the election may be conducted no sooner than one year after the immediately preceding
election. See Act of May 27,2001, fj 3.1008(g), 2001 Tex. Gen. Laws at 2044; accord Act of May
25,2001, 0 8(g), 2001 Tex. Gen. Laws at 3296. The 2001 Acts do not, on the other hand, require
the STGCD to hold a confirmation once each year for four years. For the reasons mentioned in
answer to your previous question, the 1999 Act and section 36.017 of the Water Code do not apply.
Your final question in the “Future Election Issues” section is whether the board of temporary
directors may dissolve the district immediately without holding future confirmation elections.
See Request Letter, supra note 1, at 3. It may not. The board may exercise only those powers that
the legislature has delegated to it, either expressly or implicitly. See Tex. Att’y Gen. Op. No.
JC-0202 (2000) at 2 (stating that special purpose district may exercise only express or implied
powers) (citing Tri-City Fresh Water Supply Dist. No. 2 v. Mann, 142 S.W.2d 945,946 (Tex. 1940)).
“Implied powers are those that are ‘indispensable’ [to accomplishing the political subdivision’s
purposes]; powers ‘merely convenient’ or ‘useful’ cannot be implied,” and the political subdivision
may not assume them. Id. (quoting Tri-City Fresh Water Supply Dist. No. 2, 142 S.W.2d at 947).
While the STGCD is not required to conduct any more confirmation elections before its automatic
dissolution on September 1,2005, nothing in the 1999 Act, either of the 2001 Acts, or chapter 36
of the Water Code authorizes the STGCD’s board of temporary directors to dissolve the district in
any circumstance.
II. District’s authority subsequent to confirmation election
Your next two questions focus upon the board’s authority in light of the confirmation
election’s outcome. See Request Letter, supra note 1, at 4. The second question in this section
appears to reiterate the question we have just answered: you ask whether the temporary directors
may dissolve the district prior to the STGCD’s “automatic dissolution in the absence of a successful
confirmation election.” Id. As we have stated, the STGCD’s board of temporary directors lacks
authority to dissolve the district. See supra at 8.
You also ask what authority the STGCD has “in the interim period between the” November
2001 confirmation election and subsequent “confirmation elections that can be conducted in each
of the next three years prior to the district’s automatic dissolution in 2005.” Request Letter, supra
note 1, at 4.
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We conclude that the authority of the STGCD’s current board is limited to that expressly
granted by section 5 of the 1999 Act and section 36.206 of the Water Code. Only these two laws
refer specifically to temporary directors’ authority. Section 5 of the 1999 Act expressly permits the
temporary directors to exercise some powers granted under chapter 36 of the Water Code, but
withholds other chapter 36 powers:
(a) Except as provided by Subsections (c) and (d) of this section or otherwise
by this Act, the temporary directors of a district have the same permitting and general
management powers as those granted to initial and permanent directors under
Chapter 36, Water Code.
(b) The temporary directors or their designees have the authority to enter any
public or private property located within the district to inspect a water well as
provided by Section 49.22 1, Water Code.
(c) The temporary directors do not have the authority granted by the
following provisions of Chapter 36, Water Code:
(1) Sections 36.017,36.019,36.020, and 36.059, relating to
elections;
(2) Sections 36.105,36.1071,36.1072,36.1073, and 36.108,
relating to eminent domain and management plans;
(3) Sections 36.17 l-36.18 1, relating to bonds and notes;
(4) Sections 36.201-36.204, relating to taxes; and
(5) Sections 36.321-36.359, relating to annexation and
consolidation.
(d) The temporary directors may regulate the transfer of groundwater out of
the district as provided by Section 36.122, Water Code, but may not prohibit the
transfer of groundwater out of the district.
Act of May 28, 1999, 0 5, 1999 Tex. Gen. Laws at 4538. In addition, section 36.206 of the Water
Code specifically authorizes a board of temporary directors to collect user fees:
(a) A temporary board may set user fees to pay for the creation and initial
operation of a district, until such time as the district creation has been confirmed and
a permanent board has been elected by a majority vote of the qualified voters voting
in the district in an election called for those purposes.
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(b) The rate of fees set for agricultural uses shall be no more than [twenty]
percent of the rate applied to municipal uses.
(c) District fees may not be used to purchase groundwater rights unless the
purchased rights are acquired for conservation purposes and are permanently held in
trust not to be produced. -.v
TEX. WATER CODEANN. lj 36.206 (Vernon Supp. 2002). No other provision in the 1999 Act, either
of the 2001 Acts, or chapter 36 of the Water Code provides specific authority for temporary
directors.
III. TCEQ’s creation of a groundwater conservation district
You ask last whether, “if the [STGCD] is dissolved immediately in response to” the
electorate’s vote not to confirm the district in November 2001, “the [TCEQ is] required to establish
a groundwater conservation district in Coma1 County on land that is included within the boundaries
of the Hill Country Priority Groundwater Management Area.” Request Letter, supra note 1, at 5.
We have concluded that the STGCD may not be dissolved immediately, and, accordingly, we do not
answer your question. See supra at 8. Nonetheless, we note that section 35 .012(b) of the Water
Code does not appear to require the TCEQ to delay compliance until September 1,2005. See TEX.
WATERCODEANN. $4 35.012(b), 36.0151 (Vernon Supp. 2002); Act ofMay27,2001,§ 3.1008(g),
2001 Tex. Gen. Laws at 2044; Act ofMay25,2001,§ 15(b), 2001 Tex. Gen. Laws at 3297. Section
35.0 12(b) requires the TCEQ to create one or more groundwater conservation districts covering the
territory of a priority groundwater management area within two years of the date the TCEQ
designated the area. See TEX. WATER CODEANN. 0 35.012(b) (Vernon Supp. 2002).
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SUMMARY
Because the voters elected not to confirm the Southeast
Trinity Groundwater Conservation District in November 2001, the
initial directors elected at that election do not take office. Rather, the
temporary directors continue in their positions, and subsequent
confirmation elections may be called by the board of temporary
directors. _--.--
A future confirmation election may not include a proposition
to authorize the district to impose a maintenance tax. Coma1 County,
the county in which the Southeast Trinity Groundwater Conservation
District is located, must fund future confirmation elections if the
district is unable to do so. The board of temporary directors is
permitted, but not required, to call and hold a future confirmation
election, and it is not required to hold such an election in each of the
three years after the initial election in November 2001. u
The temporary directors may not dissolve the district, whether
or not the board calls and holds a future confirmation election. If the
district has not been confirmed by September 1,2005, it will dissolve
by operation of law. The board of temporary directors has that
authority set out in section 5 of the 1999 Act creating the district, see
Act of May 28,1999,76th Leg., R.S., ch. 133 1, 0 5, 1999 Tex. Gen.
Laws 4536,4538, and section 36.206 of the Water Code, see TEX.
WATER CODEANN. 4 36.206 (Vernon Supp. 2002).
Attorney General of Texas
HOWARD G. BALDWIN, JR.
First Assistant Attorney General
NANCY FULLER
Deputy Attorney General - General Counsel
SUSAN DENMON GUSKY
Chair, Opinion Committee
Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee