Can two people who are first cousins both serve on the board of a Texas water district, or does a relationship rule disqualify them?

Texas AG Opinion JM-1130: Can First Cousins Both Serve on a Water District Board?

Plain-English summary

Two people who are first cousins were elected as directors of the Barton Springs-Edwards Aquifer Conservation District, one from precinct 3 and one from precinct 5, at the same election. The chairman of the House Natural Resources Committee asked whether a newly amended provision of the Water Code disqualified them.

Section 50.026(a) of the Water Code disqualifies a person from serving on the governing board of certain districts if the person is related, within the third degree of affinity (marriage) or consanguinity (blood), to a developer of property in the district, to another board member, or to the district's manager, engineer, or attorney. The Attorney General noted that first cousins are related within the third degree by consanguinity. So if the statute applies to a district, two first cousins cannot both sit on its board.

The Attorney General answered the questions this way. Whether section 50.026(a) actually applies to the Barton Springs-Edwards district was a fact question he could not decide. The district was created under chapter 52 of the Water Code (so it was created "under this title") and it clearly provides potable water to household, commercial, or industrial users, but whether it does so "as the district's principal function," and the question of the district's territorial makeup, are factual matters outside the opinion process. If the statute does apply, it disqualifies the directors of precincts 3 and 5. Where both were elected at the same election, the district does not have to choose which one to remove: both are disqualified. A related subsection (50.026(a)(6)) disqualifies a director who, during the term, fails to maintain the qualifications required to serve. Neither man was related to a sitting director when he stood for office, but both assumed office despite their relationship to each other, so both failed to maintain the necessary qualifications.

On the constitutional question, the amendment applied to districts based on an unusual territorial description (districts covering less than an entire county, and, if inside a city, less than 75 percent of the city). That peculiar territorial basis made the statute suspect as a special or local law forbidden by article III, section 56 of the Texas Constitution. But the Attorney General could not say it was unconstitutional as a matter of law, because deciding that would require factual findings the opinion process cannot make.

Currency note

This opinion was issued in 1989. 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 Water Code has been reorganized and amended repeatedly since 1989; the disqualification rules that were in chapter 50 then may be numbered and worded differently now. Anyone checking whether relatives may serve together on a current water district board should consult the present Water Code.

Who this opinion affected (as of 1989)

The Barton Springs-Edwards Aquifer Conservation District: The opinion told the district that if section 50.026(a) applied to it, its two first-cousin directors were both disqualified, and the district did not have to decide which one to remove. Whether the statute applied at all remained a fact question for the district and, ultimately, the courts.

The two first-cousin directors (precincts 3 and 5): Both would be disqualified if the statute applied, because first cousins are within the third degree of consanguinity and both assumed office despite the relationship.

Other special-act water districts: The opinion confirmed the general rule that section 50.026(a) disqualifies board members related within the third degree, but its application depended on each district's principal function and territorial makeup, which are factual questions.

Common questions

Are first cousins "related within the third degree" for these rules?
Yes. The Attorney General noted that first cousins are related within the third degree by consanguinity, citing Attorney General Opinion JM-741 (1987).

If the statute applies, are both cousins disqualified or just one?
Both. Where two disqualifying relatives were elected to the board at the same election and both assumed office, the district does not have to determine which one to remove; both are disqualified.

Does it matter that neither was related to a sitting director when he ran?
No. Under subsection 50.026(a)(6), a director is disqualified if, during the term, he fails to maintain the qualifications required to serve. Both men assumed office despite their relationship to each other, so both failed to maintain the necessary qualifications.

Did the Attorney General decide the statute applied to the Barton Springs district?
No. Whether the district provides water services "as its principal function," and its territorial makeup, are fact questions the Attorney General cannot resolve in the opinion process. That question was left open.

Is this a "nepotism" rule?
Not exactly. The opinion noted that calling these familial-relationship rules "nepotism" statutes is a misnomer, because nepotism involves favoritism shown a relative by someone in a hiring or supervisory role. Here both directors were elected by the voters; neither hired or supervised the other.

Background and statutory framework

Before its 1989 amendment, Water Code section 50.026(a)(1) disqualified a person from the governing board of a district whose principal function was providing water and sewer services (or either) to household users and that was created by special act, if the person was related within the third degree of affinity or consanguinity to a developer of property in the district, another board member, or the district's manager, engineer, or attorney. House Bill 2498 (Acts 1989, 71st Leg., ch. 328, § 1, at 1292) rewrote subsection (a) to cover a district created under title 4 or by special act that provides water, sewer, drainage, or protection facilities or services to household, commercial, or industrial users (other than agricultural or irrigation users), that includes less than all the territory in at least one county, and that, if within a city, includes less than 75 percent of the incorporated area. The disqualifying relationship provision in subdivision (1) remained.

The Barton Springs-Edwards Aquifer Conservation District was created under article III, section 52 of the Texas Constitution and chapter 52 of the Water Code, as amended by Senate Bill 986 (Act of June 17, 1987, ch. 429, 1987 Tex. Sess. Law Serv. 3967), to conserve, preserve, protect, recharge, and prevent waste of the underground waters of the Edwards Aquifer, a designated sole-source aquifer (Water Code § 52.021). The district permits wells and collects a use fee based on annual pumpage, but does not sell water as a public utility.

The Attorney General concluded that whether section 50.026(a) applied to the district was a fact question, because although the district was created "under this title" and provides potable water, whether it does so as its principal function and the extent of its territory were factual. If the statute applied, it disqualified the two directors; first cousins are within the third degree of consanguinity (citing Attorney General Opinion JM-741 (1987)), and both were disqualified where both assumed office (citing Attorney General Opinion JM-296 (1985)). Subsection 50.026(a)(6) disqualifies a director who fails to maintain the required qualifications during the term. On the special-law challenge under article III, section 56, the statute's peculiar territorial basis made it suspect, but the Attorney General could not declare it unconstitutional as a matter of law on the facts given. A footnote explained that these familial-relationship rules are loosely (and inaccurately) called "nepotism" statutes; nepotism involves favoritism by someone in a hiring or supervisory capacity, unlike two independently elected directors (see Collier v. Civil Serv. Comm'n of Wichita Falls, 764 S.W.2d 364 (Tex. App. - Fort Worth 1989, writ denied)).

Citations

Statutory and constitutional authorities:

• Texas Water Code § 50.026(a); § 50.026(a)(1) (relationship disqualification); § 50.026(a)(6) (failure to maintain qualifications during term)
• Texas Water Code ch. 52; § 52.021 (purpose of the aquifer conservation district)
• H.B. 2498, Acts 1989, 71st Leg., ch. 328, § 1, at 1292 (amending section 50.026(a))
• Senate Bill 986, Act of June 17, 1987, ch. 429, 1987 Tex. Sess. Law Serv. 3967 (creating/amending the district's authority)
• Texas Constitution art. III, § 52 (conservation districts); art. III, § 56 (prohibition on special and local laws)

Cases:

• Collier v. Civil Serv. Comm'n of Wichita Falls, 764 S.W.2d 364 (Tex. App. - Fort Worth 1989, writ denied) (nepotism involves a hiring or supervisory relationship)

Attorney General opinions referenced:

• JM-741 (1987) (first cousins are within the third degree of consanguinity)
• JM-296 (1985)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1130
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1989/jm1130.pdf

Original opinion text

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

Honorable Terral Smith
Chairman
Natural Resources Committee
House of Representatives
P.O. Box 2910
Austin, Texas 78768-2910

Opinion No. JM-1130

Re: Familial relationships as a disqualification for membership on the board of the 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 District?

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 impermissible as a special law?

Prior to its amendment in 1989, section 50.026(a)(1) of the Water Code provided:

(a) A person is disqualified from serving as a member of a governing board of a district proposing to provide or actually providing 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, any other member of the governing board of the district, or the manager, engineer, or attorney for the district[.] (Emphasis added.)

Section 50.026(a)(1) has now been amended to read:

(a) A person is disqualified 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 is providing or proposing to provide the district's water, sewer, drainage, or protection facilities or services, or any of these services, to household, commercial, or industrial users, other than agricultural or irrigation users; and which district includes less than all the territory in at least one county and which, if located within the corporate area of a city or cities, includes less than 75 percent of the incorporated area of the city or cities if:

(1) he is related within the third degree of affinity or consanguinity to a developer of property in the district, any other member of the governing board of the district, or the manager, engineer, or attorney for the district.[Footnote 1] (Emphasis added.)

Acts 1989, 71st Leg., ch. 328, § 1, at 1292.

By way of explanation and background your letter advises:

The Barton Springs-Edwards Aquifer Conservation District ("the District") is an underground 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 conservation, preservation, protection, recharging, 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, commercial 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 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 50.026(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 "services" to household, commercial, or industrial 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 director] fails to maintain the qualifications required by law to serve as a director." Acts 1989, 71st Leg., ch. 328, § 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 relationship.

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 violative of the provision as a matter of law. Again, we cannot determine factual matters in the opinion process of this office, and there is an insufficient factual basis for reaching a decision as a matter of law. See Attorney General Opinion JM-296.

SUMMARY

Section 50.026(a)(1) operates to disqualify first cousins elected at the same time as directors of a district to which the statute 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.

Very truly yours,

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

Footnote 1: Because the restrictions involve familial relationships, statutes such as these are sometimes called "nepotism" statutes, but that characterization is a misnomer. Nepotism involves favoritism shown a relative on the basis of the relationship by someone in a hiring or supervisory capacity. See Collier v. Civil Serv. Comm'n of Wichita Falls, 764 S.W.2d 364 (Tex. App. - Fort Worth 1989, writ denied). Here, both directors were elected by the people; neither was hired by the other, and neither supervises the other.