Does a candidate for a Texas water control and improvement district board have to live inside the district, or is living in the state enough?

Texas AG Opinion JM-909: Residency Requirement for Water District Directors

Plain-English summary

Someone wanted to run for the board of the Smith County Water Control and Improvement District No. 1, and the question was simple to state but tricky to answer: do you have to live inside the district itself, or is living somewhere in Texas good enough? The district attorney, Jack Skeen, put the question to the Attorney General.

The starting point is the Water Code. Water control and improvement districts like this one are general-law districts, and chapter 51 of the Water Code spells out who can serve as a director. Section 51.072 says a candidate has to be a resident of the state, own land in the district that is subject to taxation, and be at least 21 years old. Notice what it does not say: it does not require the candidate to live inside the district. On residency, it asks only that the person be a resident of Texas.

The complication is that the Election Code has its own general rule for candidates. Section 141.001(a)(5) says a candidate must have lived continuously in the state for 12 months and in the territory from which the office is elected for six months. If that rule applied on top of the Water Code, a would-be director would have to live in the district after all. So which statute governs?

The Election Code answers that itself. Section 141.001(b) says that a statute outside the Election Code supersedes the general eligibility rule to the extent the two conflict. The Attorney General decided this was a genuine conflict, not a case where the Election Code simply fills a gap. He pointed to the difference between this situation and an earlier case, Brown v. Patterson, where a specific statute set a district-residency requirement but said nothing about how long, so the court borrowed the Election Code's durational rule to fill the silence. Here the Water Code is not silent about district residency; it affirmatively requires only state residency, and then it adds a separate requirement that the director own land in the district. Listing state residency and land ownership side by side signals that the legislature considered the question and chose not to require district residency. Under the old principle that spelling out one thing implies the exclusion of others, the specific Water Code rule controls and the general Election Code rule gives way.

The opinion closed one more loophole. Article XVI, section 14 of the Texas Constitution says district officers must reside within their districts. Did that override the Water Code? No. That constitutional provision does not apply to districts created under article XVI, section 59 (the conservation and reclamation districts), which is how this water district was created. So the constitution did not require district residency either. A candidate for director of the Smith County district needed to be a Texas resident and a district landowner, but did not need to live inside the district.

Currency note

This opinion was issued in 1988. Later statutes, court decisions, and 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 mentioned here.

The provisions at the center of this opinion, Water Code sections 51.072 and 51.073 and Election Code section 141.001, have all been amended since 1988, and the Water Code's water-district provisions have been reorganized over the years. The structural rules the opinion relies on remain sound: a specific statute governing a particular office's qualifications can displace the Election Code's general residency rule under section 141.001(b), and the constitutional district-residence requirement in article XVI, section 14 does not reach districts created under article XVI, section 59. Anyone deciding whether they qualify to run for a water district board today should confirm the current version of section 51.072 and the district's own enabling law rather than relying on the section text quoted here.

Common questions

Do I have to live inside a Texas water control and improvement district to run for its board?
Under this opinion, no. The Water Code required only that a director be a resident of the state, own taxable land in the district, and be at least 21. Confirm the current statute, which has been amended since 1988.

Why doesn't the Election Code's six-month local residency rule apply?
Because the Election Code says so. Section 141.001(b) provides that an outside statute, like the Water Code, supersedes the Election Code's general eligibility rule to the extent they conflict. The Attorney General found a real conflict here, so the Water Code controlled.

Does owning land in the district matter?
Yes. The Water Code required a director to own land in the district that is subject to taxation. That is a separate requirement from residency, and the opinion treated the pairing of "resident of the state" with "own land in the district" as a signal the legislature did not intend to require living in the district.

What about the constitution's rule that district officers live in their districts?
Article XVI, section 14 of the Texas Constitution does require that, but the Attorney General held it does not apply to districts created under article XVI, section 59, which covers conservation and reclamation districts like this water district.

Background and statutory framework

The Smith County Water Control and Improvement District No. 1 was created in 1961 under article XVI, section 59, of the Texas Constitution. Water control and improvement districts are general-law districts governed by chapter 51 of the Water Code, and the qualifications and election of directors are in subchapter C of chapter 51. Under section 51.073, the district elects five directors to staggered terms. Section 51.072 sets the qualifications: "To be qualified for election as a director, a person must be a resident of the state, own land subject to taxation in the district, and be at least 21 years of age." On its face, that provision requires state residency, not district residency.

The competing provision is Election Code section 141.001, the general candidate-eligibility statute. Subsection (a)(5) requires that a candidate "have resided continuously in the state for 12 months and in the territory from which the office is elected for six months" before the filing deadline. But subsection (b) provides that "a statute outside this code supersedes Subsection (a) to the extent of any conflict," and subsection (c) provides that subsection (a) does not apply to an office for which a constitution or an outside statute prescribes exclusive eligibility requirements. The question, then, was whether the Water Code's residency rule conflicts with the Election Code's, or merely supplements it.

The Attorney General acknowledged the supplementation view, drawing on Brown v. Patterson, 609 S.W.2d 287 (Tex. Civ. App. - Dallas 1980, no writ). There the court reconciled the Election Code's general six-month durational residence requirement with a specific school-trustee statute that required district residency but set no durational requirement; finding no conflict, it harmonized the two and imposed the Election Code's durational rule. Applied here, that reasoning would add the Election Code's twelve-month state-residence requirement on top of the Water Code. The opinion accepted that limited point but held that Brown is inapposite to the distinct question of whether a person must reside in the district. On that question the Water Code does not leave a gap for the Election Code to fill; it conflicts with the Election Code by affirmatively requiring only state residency. Citing the maxim that the express mention of one thing is equivalent to the exclusion of others (State v. Mauritz-Wells Co., 175 S.W.2d 238, 241 (Tex. 1943)) and that a statute's inclusion of specific limitations excludes other limitations of the same type (Guinn v. State, 696 S.W.2d 436, 438 (Tex. App. - Houston [14th Dist.] 1985, no writ)), the opinion concluded that the Water Code's specific rule supersedes the Election Code's general one. It added that following the state-residency requirement with a requirement that the director own land in the district suggests the legislature deliberately rejected a district-residency requirement.

Having decided that section 51.072 supersedes section 141.001(a), the opinion addressed whether section 51.072 violates article XVI, section 14 of the Texas Constitution, which requires that all district officers reside within their districts. The answer was no: article XVI, section 14 does not apply to officers of districts created under article XVI, section 59 (Walton v. Brownsville Navigation District of Cameron County, 181 S.W.2d 967, 969 (Tex. Civ. App. - San Antonio 1944, writ ref'd); Kaufman County Levee Improvement District No. 10 v. National Life Insurance Co., 171 S.W.2d 188, 189 (Tex. Civ. App. - Dallas 1943, writ ref'd)). A footnote observed that a brief reviewing the acts of the 69th and 70th legislatures showed those bodies enacting varied director-qualification rules for many new districts, sometimes using district property ownership as an alternative to district residency, in part because a newly created, undeveloped district may have few or no residents to serve as directors.

Citations

Statutory and constitutional authority:

• Water Code chapter 51, subchapter C: sections 51.072 (director qualifications), 51.073 (five directors, staggered terms)
• Election Code section 141.001: subsections (a)(5), (b), (c) (general candidate eligibility; outside statute supersedes; exclusive-requirements exception)
• Tex. Const. article XVI, section 59 (conservation and reclamation districts); article XVI, section 14 (district officers shall reside within their districts)

Cases:

• Brown v. Patterson, 609 S.W.2d 287 (Tex. Civ. App. - Dallas 1980, no writ) (Texas court of civil appeals; reconciling a general durational-residence rule with a silent specific statute)
• State v. Mauritz-Wells Co., 175 S.W.2d 238, 241 (Tex. 1943) (Texas Supreme Court; express mention of one thing excludes others)
• Guinn v. State, 696 S.W.2d 436, 438 (Tex. App. - Houston [14th Dist.] 1985, no writ) (Texas court of appeals; specific limitations exclude others of the same type)
• Walton v. Brownsville Navigation District of Cameron County, 181 S.W.2d 967, 969 (Tex. Civ. App. - San Antonio 1944, writ ref'd); Kaufman County Levee Improvement District No. 10 v. National Life Insurance Co., 171 S.W.2d 188, 189 (Tex. Civ. App. - Dallas 1943, writ ref'd) (Texas courts; article XVI, section 14 does not apply to article XVI, section 59 districts)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-909
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1988/jm0909.pdf

Original opinion text

Best-effort transcription from a scanned PDF (pdftotext -layout). Minor OCR errors remain (for example, garbled case names corrected here against the reporters: Walton v. Brownsville Navigation District of Cameron County, Kaufman County Levee Improvement District No. 10 v. National Life Insurance Co.); the linked PDF is authoritative.

THE ATTORNEY GENERAL OF TEXAS

May 24, 1988

Honorable Jack Skeen, Jr.
Criminal District Attorney
Smith County Courthouse
Tyler, Texas 75702

Opinion No. JM-909

Re: Whether a member of a board of directors of a water control and improvement district must reside in the district (RQ-1134)

Dear Mr. Skeen:

You have asked whether a person must reside within the territory encompassed by the Smith County Water Control and Improvement District No. 1 (the District) to be eligible for election as a district director. The District was created in 1961 pursuant to article XVI, section 59, of the Texas Constitution. Water control and improvement districts are general law districts governed by chapter 51 of the Water Code. Provisions regarding qualifications and election of district directors are found in subchapter C of chapter 51 of the Water Code.

In accordance with section 51.073 of the Water Code, the District elects five directors to serve staggered terms. Section 51.072 of the Water Code provides as follows:

To be qualified for election as a director, a person must be a resident of the state, own land subject to taxation in the district, and be at least 21 years of age. (Emphasis added.)

Thus, with respect to residency of directors, the Water Code requires only that they be residents of the state.

You ask, however, whether the residency requirements found in section 141.001(a)(5) of the Election Code apply to candidates for director of the District. Your question specifically concerns the applicability in this context of the requirement that a person reside in the territory from which the office is elected -- in this case, the water district.

Section 141.001 of the Election Code states in relevant part:

(a) To be eligible to be a candidate for, or elected or appointed to, a public elective office in this state, a person must:

(1) be a United States citizen;

(2) be 18 years of age or older on the first day of the term to be filled at the election . . . ;

(3) have not been determined mentally incompetent by a final judgment of a court:

(4) have not been finally convicted of a felony from which the person has not been pardoned or otherwise released from the resulting disabilities;

(5) have resided continuously in the state for 12 months and in the territory from which the office is elected for six months immediately preceding the [candidates' filing deadline]:

. . . .

(6) satisfy any other eligibility requirements prescribed by law for the office.

(b) A statute outside this code supersedes Subsection (a) to the extent of any conflict.

(c) Subsection (a) does not apply to an office for which the federal or state constitution or a statute outside this code prescribes exclusive eligibility requirements. (Emphasis added.)

Subsection (b) of section 141.001 provides that a statute outside the Election Code, such as the Water Code, supersedes subsection (a) to the extent of any conflict. Thus, the question we must decide is whether the Water Code's specific provision that to be qualified for election as a director of a water district a person must be a resident of the state, conflicts with the Election Code's general provision that to be elected to a public office a person must have resided continuously in the state for twelve months and in the territory from which the office is elected for six months.

Under one view, the Election Code provision does not conflict with the Water Code, but merely supplements it. An example of such reasoning is found in Brown v. Patterson, 609 S.W.2d 287 (Tex. Civ. App. - Dallas 1980, no writ). In Brown the court reconciled the Election Code's general six-month durational residence requirement with a specific statute governing the election of school trustees. While the specific statute required residency in the school district, it had no durational requirement. The court found no conflict, harmonized the two provisions, and imposed the Election Code's durational residence requirement. If similar reasoning were applied to the question of residency requirements for water district directors, the result would be that in order to be a director, a person would not only have to be a resident of the state, as required by the Water Code, but he would also have to have been a resident of the state for twelve months prior to the candidates' filing deadline, as required by section 141.001(a)(5) of the Election Code.

In our view, however, the reasoning of Brown is inapposite to the question of whether a person must be a resident of the district, as distinguished from how long he must have resided in the state. In establishing a district residency requirement, the Election Code does not merely supplement the Water Code, but instead conflicts with it. The express mention of one person, thing, consequence, or class is equivalent to an express exclusion of all others. State v. Mauritz-Wells Co., 175 S.W.2d 238, 241 (Tex. 1943). Put another way, a statute's inclusion of specific limitations excludes all other limitations of the same type. Guinn v. State, 696 S.W.2d 436, 438 (Tex. App. - Houston [14th Dist.] 1985, no writ).

When the legislature provides in a specific statute for a residency requirement and in a general statute for the duration of a residency requirement, as in Brown, the general statute can be read as supplementing the special statute. However, when the legislature addresses residency limitations by providing in a specific statute only that a person must be a resident of the state, then a general statute that requires residency in a district must be read as conflicting. Moreover, when the requirement that a director need only be a resident of the state is followed by a requirement that the director own land in the district, that juxtaposition suggests that the legislature rejected a district residency requirement.[1]

Having found that section 51.072 of the Water Code supersedes section 141.001(a) of the Election Code, we must determine whether section 51.072 violates article XVI, section 14, of the Texas Constitution, which requires that all district officers shall reside within their districts. The short and easy answer is no. Article XVI, section 14, is not applicable to officers of districts created under the authority of article XVI, section 59, of the Texas Constitution. Walton v. Brownsville Navigation District of Cameron County, 181 S.W.2d 967, 969 (Tex. Civ. App. - San Antonio 1944, writ ref'd); Kaufman County Levee Improvement District No. 10 v. National Life Insurance Co., 171 S.W.2d 188, 189 (Tex. Civ. App. - Dallas 1943, writ ref'd).

SUMMARY

The district residency requirement of section 141.001(a)(5) of the Election Code conflicts with section 51.072 of the Water Code. Pursuant to section 141.001(b) of the Election Code, the Water Code therefore supersedes the Election Code. A candidate for the office of director of the Smith County Water Control and Improvement District No. 1 need not be a resident of the district.

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 F. Scott McCown
Assistant Attorney General

[1] One brief provided to us reviewed the acts of the 69th legislature and the 70th legislature. Those two legislatures enacted laws authorizing creation of three general law districts and over seventy conservation and reclamation districts. In each instance specific director qualifications were provided, some in direct conflict with those of the Election Code. The variations in director qualifications suggest that the legislature sometimes tailors qualifications to different situations. In doing so, the legislature continues on occasion to use district property ownership as an alternative to district residency as a director qualification. See, e.g., Acts of 1987, ch. 993, § 7(d). As a practical matter, some districts must have non-resident landowner directors at the outset because there are few or no residents living in the undeveloped district.