Untitled Texas Attorney General Opinion ( 2016 )

KEN PAXTON
ATTORNEY GENERAL OF TEXAS
October 18, 2016
The Honorable Jim Keffer Opinion No. KP-0117
Chair, Committee on Natural Resources
Texas House of Representatives Re: Whether an appointing member city's
Post Office Box 2910 governing body may remove a director it has
Austin, Texas 78768-2910 appointed to the North Texas Municipal
Water District (RQ-0106-KP)
Dear Representative Keffer:
You ask "whether the governing body of a member city of the North Texas Municipal
Water District (District) may remove or replace a director it has appointed to the District's Board
of Directors at its discretion, and with or without cause, during such director's term." 1 The District
is a conservation and reclamation district created by special law pursuant to the authority of article
XVI, section 59 of the Texas Constitution. 2 The District is governed by a board of directors, each
member of which is appointed to a two-year term by a member city within the District's territory.
See Enabling Act§§ 3(a), 6 at 97, 99. Each member city appoints either one or two District board
members, depending on its population, "in May of each" appropriate year. 3 Id. The District's
governing legislation expressly provides for the replacement of a board member only at the end of
his or her term, providing that"[e]ach director shall serve for his term of office as herein provided,
and thereafter until his successor shall be appointed and qualified." 4 Id. § 3(a) at 97. Other la"'.
1
See Letter from Honorable Jim Keffer, Chair, House Comm. on Nat. Res., to Honorable Ken Paxton, Tex.
Att'y Gen. at I (Apr. 11, 2016), https://www.texasattomeygeneral.gov/opinion/requests-for-opinion-rqs ("Request
Letter").
2
See Act of Apr. 4, 1951, 52d Leg., R.S.,'ch. 62, § 1, 1951 Tex. Gen. Laws 96, 96 ("Enabling Act"), amended
by Act of Apr. 24, 1969, 61 st Leg., R.S., ch. 122, 1969 Tex. Gen. Laws 334, 334; Act of Apr. 23, 1975, 64th Leg.,
R.S., ch. 90, 1975 Tex. Gen. Laws 238, 238; Act of Apr. 28, 2009, 81 st Leg., R.S., ch. 20, 2009 Tex. Gen. Laws 37,
37; see also TEX. CONST. art. XVI,§ 59(b) (authorizing the creation of conservation and reclamation districts).
3
Cities with a population of 5,000 or more may appoint two directors to staggered terms, while cities with a
population ofless than 5,000 may appoint one director. Enabling Act§§ 3(a), 6 at 97, 99.
4
Legislation enacted in 2009 addresses the lack of a quorum during a catastrophe or disaster, authorizing
available directors or the highest ranking District staff member, among other things, to "call for the appointment of
new directors by the member cities of the district to fill the vacancies on the board resulting from the catastrophe or
disaster." Act of Apr. 28, 2009, 81 st Leg., R.S., ch. 20, § 5, 2009 Tex. Gen. Laws 37, 40.
The Honorable Jim Keffer - Page 2 (KP-0117)
made applicable to the District does not address either the removal or replacement of a director. 5
See Act of Apr. 23, 1975, 64th Leg., R.S., ch. 90, § l(d), (n), 1975 Tex. Gen. Laws 238, 239, 241
(making the Regional Waste Disposal Act applicable to the District and requiring that the District
comply with chapters 5, 6, and 50 of the Water Code). 6 Thus, no provision expressly authorizes
the removal of a District director prior to the end of the director's term.
Finding no such express authority, we consider to what extent the District's Enabling Act
implies the authority for a city to remove a District director before the end of his or her term. The
Enabling Act directs member cities to appoint a District director who will "serve for his term of
office" and continue serving "thereafter" until a successor is appointed and qualified. Enabling
Act§ 3(a) at 97. Based on the Legislature's goal of maintaining the board position filled for the
duration of the director's term and until a successor can take over, a court would likely conclude
that member cities have the implied authority to fill a vacancy occurring prior to the end of a
director's term. However, to the extent that a sitting director is able to serve until his successor is
appointed and qualified, we find no authority from which could be implied the power to remove a
director, with or without cause, prior to the end of the director's term.
Through briefing submitted to this office, representatives of several home-rule member
cities refer to the inherent authority of a home-rule city to adopt and enforce ordinances that do
not conflict with the Texas Constitution or State law. 7 See TEX. CONST. art. XI, § 5(a); In re
Sanchez, 81 S.W.3d 794, 796 (Tex. 2002) (noting that a home-rule city has the "full power of self-
government" and looks to the Legislature "not for grants of power, but only for limitations on"
that power); Town ofLakewood Village v. Bizios, 2016 WL 3157476, at *2 (Tex. 2016) (providing
that "statutory limitations on home-rule municipal authority are ineffective unless they appear with
unmistakable clarity, and even when they do, a municipality's ordinance is only unenforceable to
the extent it conflicts with" state law (quotation marks omitted)). The briefers assert that the
Enabling Act's silence with regard to the removal or replacement of a director prior to the end of
5 Subsection 49.052(g) of the Water Code, generally applicable to all water districts and providing for removal
of a board member "only" for a specific cause, does not apply to the District. TEX. WATER CODE§ 49.052(g); id
§ 49.00 I (a)(I) (excluding the District, as a "conservation and reclamation district created pursuant to Chapter 62, Acts
of the 52nd Legislature" from the definition of"district" for purposes of chapter 49).
6Chapter 5 of the Water Code governs the Texas Commission on Environmental Quality. See generally TEX.
WATER CODE§§ 5.001-.807. Chapter 6 of the Water Code governs the Texas Water Development Board. See
generally id §§ 6.001-.247. Neither chapter addresses the removal or replacement of water district board members.
Chapter 50 of the Water Code was repealed in 1995. See Act of May 25, 1995, 74th Leg., R.S., ch. 715, § 39, 1995
Tex. Gen. Laws 3755, 3802.
7
See Brief submitted collectively from Mr. Richard Abernathy, Mr. Brad Neighbor, Mr. BJ Smith, Ms. Paige
Mims, Mr. Peter G. Smith, Mr. Francisco J. Garza, and Mr. Jason Day (city attorneys for the home-rule cities of
Frisco, Garland, Mesquite, Plano, Richardson, Rockwall, and Royse City, respectively) at 2 (May 20, 2016)
("Collective Brief'); Brief from Mr. Mark Houser, McKinney City Att'y at 2 (May 20, 2016) ("McKinney Brief)
(briefs on file with the Op. Comm.).
The Honorable Jim Keffer - Page 3 (KP-0117)
his or her term permits a home-rule city to remove a director through the city's charter or
ordinances. Collective Brief at 3; McKinney Brief at 5-6.
In addressing a similar question, this office previously concluded that the City of Garland
lacked authority to remove one of its appointed representatives to the District board prior to the
end of the director's term. In reaching this conclusion, JM-1239 emphasized that a District director
is not a municipal officer but, rather, "an officer of the district, who happens merely to be appointed
by the city council." Tex. Att'y Gen. Op. No. JM-1239 (1990) at 3 (emphasis omitted). Thus,
while a home-rule municipality may have broad authority with regard to the removal of its own
officers, such authority does not necessarily extend to the removal of a District director prior to
the end of the director's term.
The briefers also urge us to apply the reasoning in Barnett v. City ofPlainview to the present
facts. 8 In that case, a court concluded that a home-rule city's power to appoint a municipal judge
includes "the implied power to remove the judge if his performance is unsatisfactory" because the
objective of the appointment power is "to establish the office and the qualifications for a competent
person to fill that office." Barnett v. City of Plainview, 848 S.W.2d 334, 340-41 (Tex. App.-
Amarillo 1993, no writ). However, as the Barnett court acknowledged, the municipal judge in that
case "was an officer and employee of the City." Id. at 336; see also TEX. Gov'T CODE§ 29.004(a)
(providing that a municipal judge in a home-rule city is "selected under the municipality's charter
provisions relating to the election or appointment of judges"). Ip contrast, member cities of the
District do not establish the District board or the directors' qualifications for office. The
Legislature does. Thus, the reasoning of Barnett does not apply to the question at issue.
8
See Collective Brief at 3; McKinney Brief at 5.
The Honorable Jim Keffer - Page 4 (KP-0117)
SUMMARY
A court would likely conclude that member cities of the
North Texas Municipal Water District ("District") have implied
authority to fill a vacancy occurring on the District's board of
directors prior to the end of a director's term to the extent that doing
so is necessary to maintain the position filled. But if a sitting
director is able to serve until his successor is appointed and
qualified, we find no authority from which could be implied the
power of a member city to remove a District director, with or
without cause, prior to the end of the director's term.
Very truly yours,
KEN PAXTON
Attorney General of Texas
JEFFREY C. MATEER
First Assistant Attorney General ,
BRANTLEY STARR
Deputy First Assistant Attorney General
VIRGINIA K. HOELSCHER
Chair, Opinion Committee
BECKY P. CASARES
Assistant Attorney General, Opinion Committee