How long is a Texas water control district director's term, and when must the elections be held?

Plain-English summary

The El Paso County Attorney asked the Attorney General to sort out how long the directors of the El Paso County Water Control and Improvement District (known as Westway) serve and when the district must hold its elections. Westway is an old special-purpose district: the legislature created it by a special law in 1961 and validated it again in 1962. That 1961 act said the district is run by five directors elected to staggered two-year terms, with elections on the second Tuesday in January each year.

The Attorney General gave a layered answer. On the length of the term, the office said two years still controlled. A 1983 Water Code amendment had stretched many district directors' terms from two years to four, but Westway's own 1961 charter contains a clause saying that where a general law conflicts with the special act, the special act wins. So the general-law change to four-year terms did not override Westway's two-year terms. On the election date, the answer flipped: the Election Code, enacted later, requires nearly all elections to fall on one of a few uniform statewide dates, and it supersedes a conflicting date in an older statute. Westway therefore could no longer use its second-Tuesday-in-January date and had to move its elections to a uniform date and adjust terms to fit. Finally, the County Attorney asked what happens to the acts of directors who had been elected on the wrong dates or for the wrong (four-year) terms. The office noted that elections on improper dates are void, but that the common-law "de facto officer" doctrine can still validate the good-faith official acts of people who did not properly hold office; whether it saved any particular act depended on facts the office could not find in an opinion. It suggested Westway might seek validating legislation.

Currency note

This opinion was issued in 1993. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The Election Code and Water Code provisions discussed here, and Westway's own enabling and validating acts, may have been amended or supplemented since 1993; confirm the current law before relying on anything described here.

What the opinion meant for those who asked

For Westway and its board of directors: The opinion told the board that directors held two-year terms, not four, and that the board needed to set its director elections on one of the Election Code's uniform statewide dates rather than the second Tuesday in January, adjusting terms as needed. It also flagged that the validity of prior actions by improperly elected directors was a fact question the office could not answer, and that the district might want validating legislation.

For the El Paso County Attorney: The opinion answered the term and election-date questions directly but declined the request to treat the validity of past board actions as something resolvable through an opinion, because that turned on facts and on how the de facto officer doctrine applied to Westway's history.

For voters and others dealing with the district: The opinion described the directors' authority as resting on a special-law charter that still governed term length, while the timing of elections had been pulled into the statewide uniform-date system. It did not decide whether any specific past board action was valid.

Background and statutory framework

Westway was created under article XVI, section 59 of the Texas Constitution (the conservation-and-reclamation provision) by a 1961 special act (Acts 1961, ch. 210), and a 1962 act ratified, confirmed, and validated the district without repealing the enabling act (Acts 1962, 57th Leg., 3d C.S., ch. 67). The office explained that the Water Code recognizes districts like Westway, provides for their continued operation under their special acts, and exempts them from the code, pointing to Water Code section 1.001(d), which says persons interested in these local and special laws "may rely on the session laws and on compilations of these laws," and citing Aikin v. Franklin County Water District.

Section 6 of the 1961 act provided for five directors elected to staggered two-year terms, with annual January elections. The County Attorney argued that the arrangement cut against the policy behind article XVI, section 64, which converted certain two-year district, county, and precinct offices to four-year terms, and urged the office to reconsider Attorney General Opinion WW-1110A (1962). That earlier opinion had held that school trustees, though treated as county officials for some purposes, were not county officials for purposes of section 64; the office reaffirmed WW-1110A. It then addressed the 1983 Water Code amendment (Acts 1983, 68th Leg., ch. 951) that changed many general-law district directors' terms from two to four years effective January 1, 1984. Section 4 of Westway's 1961 act vests the district with the powers of general laws applicable to water control and improvement districts "but to the extent that the provisions of any such General Laws may be in conflict or inconsistent with the provisions of this Act, the provisions of this Act shall prevail." Because of that clause, the office held the Water Code amendment did not control, and the term remained two years.

On the election date, the office turned to chapter 41 of the Election Code. Section 1.002(b) provides that the code supersedes a conflicting statute, and section 41.001 requires elections to be held on one of four uniform dates, subject to exceptions; section 41.003 limits use of the November date, and section 41.005 directs a political subdivision whose outside law sets a non-uniform date to set its election date to comply with the code and adjust terms accordingly. Section 41.008 makes elections held on improper dates void. The office observed that the uniform-date requirement dated to 1975 legislation effective January 1, 1976 (Acts 1975, 64th Leg., ch. 715). For the consequences of past improper elections, the office pointed to the holdover provision in article XVI, section 17 and to the de facto officer doctrine, which validates good-faith official acts of those who did not lawfully hold office, citing Plains Common Consolidated School District No. 1 of Yoakum County v. Hayhurst and Anderson v. State. Whether the doctrine validated specific acts depended on facts outside the opinion process. In a footnote, the office noted it was not addressing the federal Voting Rights Act (42 U.S.C. § 1973).

Common questions

How long do Westway water district directors serve?
Two years. The 1961 special act that created the district set two-year staggered terms, and because that act says its provisions prevail over conflicting general laws, a later Water Code amendment that moved many district directors to four-year terms did not change Westway's term.

When must the district hold its director elections?
On one of the Election Code's uniform statewide dates. The 1961 act's second-Tuesday-in-January date was superseded by the Election Code, so the board had to move elections to a uniform date and adjust terms to match.

What happens to decisions made by directors who were elected on the wrong dates or terms?
The office said elections held on improper dates are void, but the common-law de facto officer doctrine can still validate the good-faith official acts of people who did not properly hold office. Whether it saved any particular action depended on the facts, which the office could not resolve in an opinion. It suggested Westway might seek validating legislation.

Why didn't the 1983 four-year-term law apply to Westway?
Because Westway's 1961 charter has a clause making its own provisions prevail over conflicting general laws. The four-year-term change was a general-law amendment, so the special act's two-year term controlled.

Citations

Constitutional, statutory, and legislative provisions discussed:

• Tex. Const. art. XVI, § 59 (conservation and reclamation districts)
• Tex. Const. art. XVI, § 64 (four-year terms for certain district, county, and precinct offices)
• Tex. Const. art. XVI, § 17 (officers hold over until successors qualify)
• Water Code § 1.001(d) (reliance on session laws for local and special laws)
• Elec. Code § 1.002(b) (code supersedes conflicting statute); §§ 41.001, 41.003, 41.005 (uniform election dates); § 41.008 (elections on improper dates void)
• 42 U.S.C. § 1973 (Voting Rights Act; noted but not addressed)
• Acts 1961, ch. 210 (Westway enabling act); Acts 1962, 57th Leg., 3d C.S., ch. 67 (validation); Acts 1983, 68th Leg., ch. 951 (four-year-term amendment); Acts 1975, 64th Leg., ch. 715 (uniform election dates)

Prior Attorney General opinion referenced: WW-1110A (1962).

Cases discussed:

• Aikin v. Franklin County Water Dist., 432 S.W.2d 520 (Tex. 1968)
• Plains Common Consol. Sch. Dist. No. 1 of Yoakum County v. Hayhurst, 122 S.W.2d 322 (Tex. Civ. App.-Amarillo 1939, no writ)
• Anderson v. State, 195 S.W.2d 368 (Tex. Crim. App. 1946)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0269
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1993/dm0269.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

October 27, 1993

Honorable Jose R. Rodriguez
El Paso County Attorney
500 East San Antonio, Room 203
El Paso, Texas 79901

Opinion No. DM-269

Re: Term of office of directors of the El Paso County Water Control and Improvement District (Westway), and related questions (RQ-479)

Dear Mr. Rodriguez:

Your inquiry concerns the term of office for the directors of the El Paso Water Control and Improvement District ("Westway"), and related issues. As background, you state that

Westway was created on May 24, 1961, pursuant to Constitution, Article XVI, § 59, by legislative act (formerly Art. 8280-250, V.T.C.S., but since repealed and not carried into the Water Code), General and Special Laws of Texas, 1961, chapter 210. The legislature subsequently passed an act ratifying confirming and validating Westway effective February 16, 1962. (General and Special Laws of Texas, 1962, 3rd Called Session, Chapter 67).

Based upon your understanding of these statements, you ask for clarification of the proper election date and term of office for the directors of Westway.

A careful review of the legislation upon which you base your inquiry reveals that the original enabling act for Westway is still operative. The legislation creating the El Paso County Water Control and Improvement District - Westway, became effective May 24, 1961. Section one of the act provides the following:

Under and pursuant to the provisions of Article 16, Section 59, of the Constitution of Texas, a conservation and reclamation district is hereby created and established in El Paso County, Texas, to be known as 'El Paso County . . .' which shall be a governmental agency and a body politic and corporate.

Acts 1961, ch. 210, § 1, at 431. The act of February 16, 1962, did not repeal the enabling act; rather, it declared that Westway was "in all things ratified, confirmed, and validated and is . . . validly existing . . . ." Acts 1962, 57th Leg., 3d C.S., ch. 67, § 1, at 181. Furthermore, the Water Code recognizes these districts, provides for their continued operation under special acts, and expressly exempts them from the operation of the code. The legislative intent of section 1.001(d) of the Water Code is clear from a plain reading of the provision which states "[t]he legislature believes that persons interested in these local and special laws may rely on the session laws and on compilations of these laws." Water Code § 1.001(d); Aikin v. Franklin County Water Dist., 432 S.W.2d 520 (Tex. 1968); see also Water Code Aux. Laws (Vernon 1993).

Section 6 of the act creating Westway states that the district shall be governed by a board of five directors elected for staggered two year terms and that "[a]n election for the election of Directors shall be held on the second Tuesday in January of each year beginning in 1962, and as herein provided." See Acts 1961, ch. 210, § 6, at 435. You suggest that this provision goes against "the grain of strong public policy . . . as reflected in Article XVI, Section 64 of the Texas Constitution." [Footnote 1] In Attorney General Opinion WW-1110A (1962) this office considered the arguments in favor of four year terms with uniform election dates for school trustees. It was concluded that while school trustees have been considered county officials for some purposes, they are not for purposes of section 64. Id. at 5-6. You suggest that Attorney General Opinion WW-1110A should be reconsidered and that section 64 should be held to apply to "all district, precinct, and county elected officials, to include the directors of Westway." We support the conclusion reached in Attorney General Opinion WW-1110A.

We note that the Water Code was amended by Acts 1983, 68th Leg., ch. 951, § 1, at 5212 to change the term of office for the directors of certain general law districts from two to four years, effective January 1, 1984. However, section four of the act creating Westway provides

The District shall have and exercise, and is hereby vested with all of the rights, powers, privileges, authority and duties conferred and imposed by the General Laws of this state now in force or hereafter enacted, applicable to water control and improvement districts created under authority of Section 59, Article XVI, of the Constitution, but to the extent that the provisions of any such General Laws may be in conflict or inconsistent with the provisions of this Act, the provisions of this Act shall prevail.

Acts 1961, 57th Leg., ch. 210, § 4, at 435 (emphasis added). Therefore, the aforementioned amendments to the Water Code are not controlling. Accordingly, we conclude that the term of office for the directors of Westway is two years.

However, the date of Westway's director elections-which its 1961 act sets as the second Tuesday in January-is now governed by chapter 41 of the Election Code. See Elec. Code § 1.002(b) (code supersedes conflicting statute). Section 41.001 requires, with exceptions not applicable here, that all elections be held on one of four uniform dates: the third Saturday in January, the first Saturday in May, the second Saturday in August, or the first Tuesday after the first Monday in November. (Section 41.003, however, precludes Westway's use of the November date on an annual basis.) [Footnote 2] Section 41.005 provides that if, as in the case of Westway, a law outside the Election Code specifies a non-uniform date for a political subdivision's elections, the governing body "shall set the election date to comply with" the Election Code provisions, and adjust terms of office accordingly.

You ask finally, in the event Westway has been improperly electing its directors, "what is the legal status of the district and its directors and the legal status of the actions taken by the board of directors who have been serving for four year terms?" We have already concluded that only two years, rather than four, is the proper term of Westway directors, but also that Westway should be holding its elections on a uniform date prescribed by the Election Code rather than on the second Tuesday in January. Election Code section 41.008 indicates that elections held on improper dates are void.

We note that the 1961 special act creating Westway provides:

The yearly elections shall be ordered by the Board of Directors. Failure to call an election for Directors will in no way affect the legal status of the District or the Board of Directors or the individual Directors or the right of said Board of Directors to act or function and the Directors shall serve until an election is held under the provisions of this law and the succeeding Directors have been duly elected or appointed and have duly qualified.

Acts 1961, 57th Leg., ch. 210, § 6, at 435.

It may be that the above-quoted provisions of the 1961 special act only echo the "holdover" provision of article XVI, section 17 of the Texas Constitution, that "[a]ll officers within this State shall continue to perform the duties of their offices until their successors shall be duly qualified." The special act provisions' scope appears to be limited to situations where the directors it authorizes to continue to serve until their successors properly take office have themselves properly taken office to begin with. In Westway's case there has apparently been a succession of directors elected on improper dates and/or for improper terms. While you indicate that Westway went over to four year terms only in response to the above-mentioned 1983 Water Code amendments, we note that the election laws' uniform date requirements date back to 1975 legislation effective January 1, 1976. See Acts 1975, 64th Leg., ch. 715, at 2295.

Under the circumstances, Westway may be able to look to the doctrine regarding de facto officers, which generally validates acts of persons exercising official duties in good faith although they did not properly hold office as a matter of law. See, e.g., Plains Common Consol. Sch. Dist. No. 1 of Yoakum County v. Hayhurst, 122 S.W.2d 322 (Tex. Civ. App.-Amarillo 1939, no writ); Anderson v. State, 195 S.W.2d 368 (Tex. Crim. App. 1946). However, whether the de facto officer doctrine would effectively validate particular acts of past or present directors who did not properly take office would, we think, ultimately depend on the underlying facts of the case. We are unable to make such fact findings in the opinion process. It may be that in order to resolve these issues, Westway will want to seek further validating legislation from the legislature. [Footnote 3]

SUMMARY

The term of directors of the El Paso Water Control District (Westway) is two years. The district's board of directors should select a uniform election date under chapter 41 of the Election Code for the district's director elections. The extent to which acts of improperly elected directors are nevertheless valid involves fact questions which cannot be resolved in the opinion process.

DAN MORALES
Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Attorney General for Litigation

RENEA HICKS
State Solicitor

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Toya C. Cook
Assistant Attorney General

Footnote 1: Section 64 of article XVI of the Texas Constitution provides: "The office of Inspector of Hides and Animals, the elective district, county and precinct offices which have heretofore had terms of two years, shall hereafter have terms of four years; and the holders of such offices shall serve until their successors are qualified." The interpretive commentary following section 64 provides some of the arguments in favor of and against a four year term of office. Opponents of the measure argued that shorter terms kept officials "closer to the pulse of the public" and fostered an awareness of the responsibilities of public office. Supporters of the four year term argued that a longer term would provide a more efficient local government by enabling local elected officials the opportunity to perform their duties without the excessive political pressures inherent in a shorter term of office.

Footnote 2: Section 41.003 of the Election Code only authorizes November elections held in even-numbered years for certain purposes.

Footnote 3: You do not raise nor do we address any issues concerning application of the Voting Rights Act. See 42 U.S.C. § 1973.