Can a Texas city remove the board member it appointed to a regional water district before the term ends?

Plain-English summary

State Representative Jim Keffer, chairing the House Committee on Natural Resources, asked the AG whether the governing body of a member city of the North Texas Municipal Water District may remove or replace a director it appointed to the District board, at its discretion and with or without cause, during the director's term. The District is a conservation and reclamation district created by special law under the Texas Constitution, governed by a board whose members each serve a two-year term after appointment by a member city. The District's enabling legislation says each director serves for the term and "thereafter until his successor shall be appointed and qualified."

The AG looked first for express authority to remove a director early and found none. The enabling act provides only for replacement at the end of a term, and the other laws made applicable to the District, including the Water Code chapters it must follow, do not address removal or replacement of a director. The general Water Code provision that allows removal of a water-district board member only for cause does not apply to this District, which is excluded from that chapter.

Finding no express authority, the AG considered whether the enabling act implies a removal power. The Legislature's goal of keeping each board seat filled for the term and until a successor qualifies led the AG to conclude that member cities have implied authority to fill a vacancy that opens before a term ends. But the AG found no basis to imply a power to remove a director, with or without cause, while the director is still able to serve until a successor is appointed and qualified.

The AG rejected two arguments raised by city attorneys for several home-rule member cities. First, while a home-rule city has broad power over its own officers, a District director is an officer of the district who merely happens to be appointed by the city council, not a municipal officer, as the AG had concluded in an earlier opinion about the City of Garland. Second, a court decision letting a city remove a municipal judge it appointed did not control, because that judge was a city officer and employee, and because member cities do not establish the District board or set the directors' qualifications; the Legislature does. The AG's bottom line: cities may fill a vacancy that opens early to keep the seat filled, but may not remove a sitting District director before the term ends.

Currency note

This opinion was issued in 2016. 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.

What the opinion meant for those who asked

Representative Keffer and the Legislature (as the opinion described it): The opinion answered that a court would likely conclude member cities may fill a vacancy that opens before a term ends, but have no implied power to remove a sitting District director, with or without cause, before the end of the term.

Member cities and their councils (as the opinion described them): The opinion explained that a city's authority over its own officers does not extend to District directors, because a director is an officer of the district, not a municipal officer, even though the city appoints them.

District directors (as the opinion described them): The opinion treated a director as entitled to serve out the two-year term and continue until a successor is appointed and qualified, absent an actual vacancy.

Common questions

Can a Texas city fire the person it put on a regional water district board?
As the opinion described it, a court would likely conclude no, not at will. The city may fill a vacancy if one opens before the term ends, but the opinion found no authority to remove a sitting director early with or without cause.

Why doesn't the city's power over its own officials apply?
The opinion explained that a District director is an officer of the district, not a city officer, even though the city council appoints them. So a home-rule city's broad power over its own officers does not reach a District director.

What does "fill a vacancy" mean here?
The opinion concluded that if a seat actually becomes vacant before the term ends, the member city has implied authority to fill it so the position stays occupied. That is different from removing a director who is still serving.

Does the only-for-cause removal rule for water districts apply?
No. The opinion noted that the general Water Code provision allowing removal of a board member only for cause does not apply to this District, which is excluded from that chapter.

Did a court case about removing a municipal judge change the answer?
The opinion said no. That case involved a city officer and employee, and member cities do not establish the District board or the directors' qualifications, so the reasoning did not transfer.

Background and statutory framework

The North Texas Municipal Water District is a conservation and reclamation district created by special law under the constitution, governed by directors appointed by member cities to two-year terms, with each director serving thereafter until a successor is appointed and qualified (Tex. Const. art. XVI, § 59(b); Act of Apr. 4, 1951, 52d Leg., R.S., ch. 62, § 1, 1951 Tex. Gen. Laws 96 (Enabling Act); Act of Apr. 28, 2009, 81st Leg., R.S., ch. 20, 2009 Tex. Gen. Laws 37). The laws made applicable to the District, including the Water Code chapters it must follow, do not address removal of a director (Act of Apr. 23, 1975, 64th Leg., R.S., ch. 90, 1975 Tex. Gen. Laws 238; Tex. Water Code §§ 5.001-.807, 6.001-.247). The general Water Code provision allowing removal of a board member only for cause excludes this District (Tex. Water Code §§ 49.052(g), 49.001(a)(1)).

The opinion considered home-rule cities' inherent authority and the limits on it, concluding that authority did not reach District directors (Tex. Const. art. XI, § 5(a); In re Sanchez, 81 S.W.3d 794, 796 (Tex. 2002); Town of Lakewood Village v. Bizios, 2016 WL 3157476, at *2 (Tex. 2016); Tex. Att'y Gen. Op. No. JM-1239 (1990)). It distinguished a decision letting a home-rule city remove a municipal judge because that judge was a city officer and employee, unlike a District director whose office and qualifications are set by the Legislature (Barnett v. City of Plainview, 848 S.W.2d 334, 340-41 (Tex. App.—Amarillo 1993, no writ); Tex. Gov't Code § 29.004(a)).

Citations

Constitutional, statutory, and session-law provisions:

• Tex. Const. art. XVI, § 59(b); art. XI, § 5(a)
• Tex. Water Code §§ 5.001-.807, 6.001-.247, 49.001(a)(1), 49.052(g)
• Tex. Gov't Code § 29.004(a)
• Act of Apr. 4, 1951, 52d Leg., R.S., ch. 62, § 1, 1951 Tex. Gen. Laws 96 (Enabling Act)
• Act of Apr. 23, 1975, 64th Leg., R.S., ch. 90, 1975 Tex. Gen. Laws 238
• Act of Apr. 28, 2009, 81st Leg., R.S., ch. 20, 2009 Tex. Gen. Laws 37

Texas Attorney General opinions:

• Tex. Att'y Gen. Op. No. JM-1239 (1990)

Cases:

• In re Sanchez, 81 S.W.3d 794 (Tex. 2002)
• Town of Lakewood Village v. Bizios, 2016 WL 3157476 (Tex. 2016)
• Barnett v. City of Plainview, 848 S.W.2d 334 (Tex. App.—Amarillo 1993, no writ)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0117
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2016/kp0117.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

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 law 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, § 1(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 of Lakewood 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 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 of Plainview 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"). In 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.

                                  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

[1] See Letter from Honorable Jim Keffer, Chair, House Comm. on Nat. Res., to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Apr. 11, 2016), https://www.texasattorneygeneral.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, 61st 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, 81st 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 of less 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, 81st Leg., R.S., ch. 20, § 5, 2009 Tex. Gen. Laws 37, 40.

[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. § 49.001(a)(1) (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).

[6] Chapter 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.).

[8] See Collective Brief at 3; McKinney Brief at 5.