Can the temporary directors of a new Texas groundwater conservation district cancel the election that would confirm the district?

Plain-English summary

The Legislature created the Southwestern Travis County Groundwater Conservation District in 2017 by enacting chapter 8871 of the Special District Local Laws Code. The statute called for seven temporary directors to be appointed by specified public officials, and it directed those temporary directors to hold a May 2018 election to confirm the new district and elect its first permanent board. Travis County approved a loan so the district could pay its share of the election. Then, on March 2, 2018, the temporary directors cancelled the election, citing concerns about the loan costs. A Texas House committee chair asked the AG a set of questions about what the temporary directors could and could not do.

On the central question, the AG concluded that the temporary directors had no authority to cancel the election. Subsection 8871.024(a) says the temporary directors "shall order" a confirmation and candidate election by the May 2018 uniform election date, and "shall" ordinarily imposes a mandatory duty. The AG walked through the statutes that do allow elections to be cancelled and explained why none fit: Water Code section 49.112 only reaches an election "called at the discretion of the district," but this election was mandatory, not discretionary; Election Code section 2.051 allows cancelling a candidate election when candidates are unopposed, but the requester did not say the candidates were unopposed and the mandatory duty cut against applying it; and Election Code section 2.081 allows cancellation when a measure is essentially moot, which the confirmation of the district was not.

The AG then addressed what powers the temporary directors retained. Section 8871.023 lists their authority, which is narrower than the powers a confirmed district would hold, because the district is not yet created until the voters confirm it. The AG concluded a court would likely find the temporary directors continue to hold office and may exercise the powers expressly given in section 8871.023 until initial directors are elected. Because nothing suggested their appointments were improper, the temporary directors were likely de facto officers acting under color of authority, so their official acts bind the public and third persons.

The AG also concluded that the officials who appointed the temporary directors could not withdraw those appointments, because chapter 8871 provides no mechanism to do so. Finally, the AG noted that the Legislature can amend chapter 8871, and that other ways to address the situation include removing a temporary director for official misconduct or bringing a quo warranto proceeding to challenge a de facto officer's right to hold office.

Currency note

This opinion was issued in 2018. 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

The legislator who requested the opinion: The AG concluded that the temporary directors lacked authority to cancel the May 2018 confirmation and candidate election, that they kept the limited powers section 8871.023 expressly grants until initial directors are elected, and that the appointing officials could not withdraw their appointments. The AG identified legislative amendment, removal for misconduct, and quo warranto as available responses.

The district's temporary directors (as the opinion described their position): The opinion treated the May 2018 election as a mandatory duty under "shall" in subsection 8871.024(a), so the directors' cancellation was likely unauthorized, while recognizing them as de facto officers whose acts remain binding on the public and third persons.

The officials who appointed the directors: The opinion concluded that, absent express authority in chapter 8871, a court would likely find those officials may not withdraw a temporary-director appointment.

Common questions

Why couldn't the temporary directors just call off the election?
Because the statute creating the district says they "shall" hold it, the AG explained, and "shall" imposes a mandatory duty. The election was not the kind of discretionary election that the Water Code and Election Code allow to be cancelled.

What powers did the temporary directors still have after the missed election?
The AG concluded they kept the authority section 8871.023 expressly lists, which is narrower than a confirmed district's powers, and that they hold office until initial directors are elected under section 8871.024.

Could the officials who appointed them take the appointments back?
No. The AG concluded chapter 8871 gives no mechanism to withdraw an appointment, so a court would likely find the appointing officials could not nullify their appointees.

What could be done about the situation?
The AG pointed to legislative amendment of chapter 8871, removal of a temporary director for official misconduct, and a quo warranto proceeding challenging a director's right to hold the office.

Background and statutory framework

Chapter 8871 of the Special District Local Laws Code created the district under Texas Constitution article XVI, section 59, and provided for seven temporary directors appointed by various public officials (Tex. Spec. Dist. Code §§ 8871.002, 8871.021(a)). The temporary directors serve until initial directors are elected under section 8871.024 and generally have the same permitting and general-management powers as initial and permanent directors under chapter 8871 and Water Code chapter 36 (Tex. Spec. Dist. Code §§ 8871.021(c), .023(a)). Subsection 8871.024(a) requires the temporary directors to order an election by the May 2018 uniform election date to confirm the district and elect initial directors (Tex. Spec. Dist. Code § 8871.024(a), (c); Tex. Elec. Code § 41.001(a)(2)). If creation is not confirmed, the candidates receiving a majority become a second set of temporary directors who must order a later election no earlier than May 2020 (Tex. Spec. Dist. Code § 8871.024(e), (f); § 8871.025(a)).

The word "shall" ordinarily imposes a mandatory duty (Tex. Gov't Code § 311.016(2); Tex. Att'y Gen. Op. No. MW-380 (1981)). The AG found no cancellation authority applicable: Water Code section 49.112 covers only an election "called at the discretion of the district"; Election Code section 2.051 covers unopposed candidate elections; and Election Code section 2.081 covers moot measures (Tex. Water Code § 49.112; Tex. Elec. Code §§ 2.051, 2.081). Section 8871.023 enumerates the temporary directors' authority, which is distinguished from the powers of a confirmed district because the district is not created until approved at an election (Tex. Spec. Dist. Code § 8871.023(a)-(d); Tex. Att'y Gen. Op. No. JC-0569 (2002)). The temporary directors are likely de facto officers whose acts bind the public and third persons (Williams v. State, 588 S.W.2d 593, 595 (Tex. Crim. App. 1979); Plains Common Consol. Sch. Dist. No. 1 of Yoakum Cty. v. Hayhurst, 122 S.W.2d 322, 327 (Tex. Civ. App.-Amarillo 1938, no writ)). Chapter 8871 provides no mechanism for appointing officials to withdraw an appointment (Tex. Spec. Dist. Code §§ 8871.001-.157). Removal for official misconduct and quo warranto remain available (Tex. Const. art. V, § 24; Tex. Loc. Gov't Code §§ 87.011(3), .012(15), .013(2); J.C. Engleman Land Co. v. Donna Irrigation Dist. No. 1, 209 S.W. 428, 429 (Tex. Civ. App.-San Antonio 1919, writ ref'd); Tex. Civ. Prac. & Rem. Code §§ 66.001-.003; Toyah Indep. Sch. Dist. v. Pecos-Barstow Consol. Indep. Sch. Dist., 497 S.W.2d 455, 456-57 (Tex. Civ. App.-El Paso 1973, writ ref'd n.r.e.), cert. denied, 415 U.S. 991 (1974); Tex. Water Code §§ 36.301-.310).

Citations

Statutory provisions:

• Tex. Const. art. XVI, § 59; art. V, § 24
• Tex. Spec. Dist. Code §§ 8871.002, 8871.021(a), (c), 8871.023(a)-(d), 8871.024(a), (c), (e), (f), 8871.025(a), 8871.001-.157
• Tex. Elec. Code §§ 41.001(a)(2), 2.051, 2.081
• Tex. Water Code §§ 49.112, 36.301-.310
• Tex. Gov't Code § 311.016(2)
• Tex. Loc. Gov't Code §§ 87.011(3), .012(15), .013(2)
• Tex. Civ. Prac. & Rem. Code §§ 66.001-.003

Cases and Attorney General opinions:

• Williams v. State, 588 S.W.2d 593, 595 (Tex. Crim. App. 1979)
• Plains Common Consol. Sch. Dist. No. 1 of Yoakum Cty. v. Hayhurst, 122 S.W.2d 322, 327 (Tex. Civ. App.-Amarillo 1938, no writ)
• J.C. Engleman Land Co. v. Donna Irrigation Dist. No. 1, 209 S.W. 428, 429 (Tex. Civ. App.-San Antonio 1919, writ ref'd)
• Toyah Indep. Sch. Dist. v. Pecos-Barstow Consol. Indep. Sch. Dist., 497 S.W.2d 455, 456-57 (Tex. Civ. App.-El Paso 1973, writ ref'd n.r.e.), cert. denied, 415 U.S. 991 (1974)
• Tex. Att'y Gen. Op. No. MW-380 (1981)
• Tex. Att'y Gen. Op. No. JC-0569 (2002)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0217
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2018/kp0217.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

September 26, 2018

The Honorable Lyle Larson Opinion No. KP-0217
Chair, Committee on Natural Resources
Texas House of Representatives Re: Authority of the temporary directors of the
Post Office Box 2910 Southwestern Travis County Groundwater
Austin, Texas 78768-2910 Conservation District (RQ-0218-KP)

Dear Representative Larson:

    You ask several questions about the authority of the temporary directors of the

Southwestern Travis County Groundwater Conservation District ("District"). [1] You recount the
following facts relevant to your questions. The Legislature created the District with the 2017
enactment of chapter 8871 of the Special District Local Laws Code. See Request Letter at 1-2.
Seven temporary directors were appointed as directed by chapter 8871. See id. at 2; see also TEX.
SPEC. DIST. CODE § 8871.021(a) (providing for the appointment of temporary directors by
specified public officials). Chapter 8871 provides for a May 2018 election to confirm the District
and to elect the initial directors. See TEX. SPEC. DIST. CODE § 8871.024(a); see also Request Letter
at 2. The Travis County Commissioners Court approved a loan to the District to enable the District
to pay for its share of the May 2018 election. See Request Letter at 2. On March 2, 2018, the
District's temporary directors cancelled the election citing concerns about loan costs. See id.

    Chapter 8871 of the Special District Local Laws Code provides for the creation of a

groundwater conservation district in Travis County under Texas Constitution section 59, article
XVI. See TEX. SPEC. DIST. CODE § 8871.002. It provides for the appointment of seven temporary
directors by various public officials. See id. § 8871.021(a). The temporary directors serve until
the date the initial directors are elected in an election held under section 8871.024, and they
generally have "the same permitting and general management powers as those provided for initial
and permanent directors" in chapter 8871 and in chapter 36 of the Water Code. See id.
§§ 8871.021(c), .023(a). Section 8871.024 requires that the "temporary directors shall order an
election in the district, to be held not later than the uniform election date in May 2018, to confirm
the creation of the district and to elect the initial directors." Id. § 8871.024(a); see also id.
§ 8871.024(c) (providing for application of section 41.001(a), Election Code). "If the [D]istrict's
creation is not confirmed . . . , the candidate who receives a majority of the votes cast at that
election for each of the seven positions on the board becomes a temporary director." Id.
§ 8871.024(e), (f) (distinguishing from temporary directors the terms of "[t]emporary directors
elected under Subsection (e)"). This second set of temporary directors elected under subsection
8871.024(e) "shall order a subsequent election . . . to confirm the creation of the district and to
elect the initial directors not earlier than the uniform election date in May 2020." Id. § 8871.024(e).
Subsection 8871.025 sets out specific tasks for the second set of temporary directors elected under
subsection 8871.024(e) with respect to the initial directors if the District is confirmed. See id.
§ 8871.025(a).

    You first ask what legal authority allows the temporary directors to cancel the May 2018

election of directors and voter confirmation of the District. See Request Letter at 1. Subsection
8871.024(a) provides that the "temporary directors shall order an election in the district, to be held
not later than the uniform election date in May 2018, to confirm the creation of the district and to
elect the initial directors." TEX. SPEC. DIST. CODE § 8871.024(a); see also TEX. ELEC. CODE
§ 41.001(a)(2) (providing the uniform election dates). Without context providing otherwise, the
word "shall" imposes a mandatory duty. See TEX. GOV'T CODE § 311.016(2); see also Tex. Att'y
Gen. Op. No. MW-380 (1981) at 1 (concluding that "shall" in legislation requiring temporary
board of drainage district to call confirmation election imposes a mandatory duty). In subsection
8871.024(a), the Legislature imposed a duty on the temporary directors to call a confirmation and
candidate election in May 2018.

    Provisions elsewhere in Texas statutes authorize the cancellation of elections but none are

applicable here. Water Code section 49.112, generally applicable to water districts, allows for the
cancellation of an election "called at the discretion of the district," but the mandatory nature of
subsection 8871.024(a) means that the May 2018 election is not within the District's discretion.
TEX. WATER CODE § 49.112 (emphasis added). Election Code section 2.051 also allows for the
cancellation of a candidate election when the candidate is unopposed. See TEX. ELEC. CODE
§ 2.051. You do not tell us whether the candidates for initial directors were unopposed but in light
of the duty imposed by subsection 8871.024(a) and the fact that the election is for initial directors,
a court would likely find that section 2.051 does not apply here. Election Code section 2.081
allows for the cancellation of an election of a measure where the action "authorized by the voters
may not be taken"-or is essentially moot. See id. § 2.081. It does not apply here because the
confirmation or lack of confirmation of the District is not a moot measure. Absent application of
these Water Code and Election Code provisions, we find no authority allowing the temporary
directors to cancel the confirmation and candidate election.

    Your remaining questions stem from the temporary directors' failure to fulfill their duty to

call the May 2018 election. See Request Letter at 2-3. You also ask whether the cancellation of
the election "either contemporaneously or subsequently terminate[s] all authorities" of the
temporary directors and what legal authorities do the temporary directors have. Request Letter at

1. Section 8871.023 enumerates the authority of the temporary directors. See TEX. SPEC. DIST.
   CODE § 8871.023. Subsection 8871.023(a) gives the temporary directors the "same permitting and
   general management powers" held by the initial and permanent directors under chapter 8871 and
   chapter 36 of the Water Code. Id. § 8871.023(a). Additionally, they have the authority to "enter
   any public or private property located in the district to inspect" certain wells. Id. § 8871.023(b).
   Subsection 8871.023(c) provides that the temporary directors do not have the authority granted by
   specific, enumerated provisions of Water Code chapter 36. See id. § 8871.023(c). "The temporary
   directors may regulate the transfer of groundwater out of the district as provided by [the Water
   Code] but may not prohibit the transfer of groundwater out of the district." Id. § 8871.023(d).
   These powers are distinguished from those powers granted to the District in section 8871.101
   because the District is unconfirmed. See Tex. Att'y Gen. Op. No. MW-380 (1981) at 2-3
   (recognizing that district is not created until approved at an election and that the directors cannot
   exercise powers granted until it is approved).

   The sole contingency chapter 8871 anticipates and provides for is the potential need to hold
   

   a second confirmation election in the event the voters do not vote for confirmation in May 2018.
   See TEX. SPEC. DIST. CODE § 8871.024(e). Chapter 8871 does not expressly speak to any
   contingency involving the failure to hold either the confirmation or the candidate election. The
   provision addressing the temporary directors' terms states that they hold office until the date the
   initial directors are elected under an election called under subsection 8871.024. See id.
   § 8871.021(c); cf. id. § 8871.024(f) (providing for terms for the contrasting "[t]emporary directors
   elected under Subsection 8871.024"). Absent any legislative intent regarding the lack of a
   candidate election, this provision could serve as a basis for a court to conclude that the temporary
   directors hold office and can exercise those powers expressly given them in subsection 8871.023
   until the initial directors are elected. See generally Tex. Att'y Gen. Op. No. JC-0569 (2002) at 9
   (concluding that authority of unconfirmed groundwater conservation district's temporary, but
   elected, directors is limited to that expressly granted to the temporary directors).

   You do not suggest that the appointment of the temporary directors by those designated to
   

   make the appointments was improper. See Request Letter at 2-3; see also TEX. SPEC. DIST. CODE
   § 8871.021. Accordingly, the temporary directors are likely de facto officers acting under the
   color of authority. See Williams v. State, 588 S.W.2d 593, 595 (Tex. Crim. App. 1979) (describing
   a de facto officer as "one who acts under color of a known and valid appointment, but has failed
   to conform to some precedent requirement, as to take the oath, give a bond, or the like" (quotation
   marks omitted)). As such, the temporary directors' actions are binding because the "law validates
   the acts of de facto officers as to the public and third persons on the ground that, though not officers
   de jure, they are in fact officers whose acts public policy requires should be considered valid."
   Plains Common Consol. Sch. Dist. No. 1 of Yoakum Cty. v. Hayhurst, 122 S.W.2d 322, 327 (Tex.
   Civ. App.-Amarillo 1938, no writ).

   Lastly, you ask whether the public officials who appointed the temporary directors may
   

   withdraw their appointment, nullifying their respective appointee as a temporary director. See
   Request Letter at 1. Chapter 8871 does not provide any mechanism by which the officials who
   appointed the temporary directors may withdraw their respective appointment. See generally TEX.
   SPEC. DIST. CODE §§ 8871.001-.157. Absent such express authority, a court would likely conclude
   that the appointing officials may not withdraw their respective appointments.

   Certainly, the Legislature has authority to amend chapter 8871. And though appointing
   

   officials may not withdraw their appointment, temporary directors may be subject to removal for
   misconduct. See TEX. CONST. art. V, § 24 (providing for removal of county officers); TEX. LOC.
   GOV'T CODE §§ 87.011(3), .012(15), .013(2) (defining "official misconduct," naming which
   officers may be removed, and listing general grounds for removal); J.C. Engleman Land Co. v.
   Donna Irrigation Dist. No. 1, 209 S.W. 428, 429 (Tex. Civ. App.-San Antonio 1919, writ ref'd)
   (determining that director of irrigation district is a county officer for removal purposes); see also
   Tex. Att'y Gen. Op. No. MW-380 (1981) at 2 (suggesting that upon a showing of the requisite
   intent, a temporary director who fails to call a mandatory election may be found guilty of official
   misconduct). Additionally, a quo warranto proceeding is a method by which to challenge a
   de facto officer. See TEX. CIV. PRAC. & REM. CODE §§ 66.001-.003 (providing for a quo warranto
   action); Toyah Indep. Sch. Dist. v. Pecos-Barstow Consol. Indep. Sch. Dist., 497 S.W.2d 455, 456-
   57 (Tex. Civ. App.-El Paso 1973, writ ref'd n.r.e.) (recognizing that "[q]uo warranto is held to
   be the exclusive remedy afforded to the public by which it may protect itself against usurpation or
   unlawful occupancy of a public office by an illegal occupant"), cert. denied, 415 U.S. 991 (1974);
   see also TEX. WATER CODE §§ 36.301-.310 (Subchapter I, governing performance review and
   dissolution).

                                  SUMMARY
   
                  A court would likely conclude that the temporary directors
          of the Southwestern Travis County Groundwater Conservation
          District had no authority to cancel the 2018 confirmation and
          candidate election.
   
                  A court would also likely conclude that the temporary
          directors hold office and can exercise those powers expressly given
          them in section 8871.023 of the Texas Special District Local Laws
          Code until the initial directors are elected under section 8871.024.
   
                  Absent express authority in chapter 8871, a court would
          likely conclude that the appointing officials may not withdraw their
          respective appointments.
   
                  Certainly, the Legislature has authority to amend chapter
          8871. Other potential options to address the disarray resulting from
          the absence of the confirmation and director election include
          removal of the temporary directors for misconduct or a quo warranto
          proceeding challenging the authority of the temporary directors to
          hold office.
   
                                        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

CHARLOTTE M. HARPER
Assistant Attorney General, Opinion Committee

[1] See Letter from Honorable Lyle Larson, Chair, House Comm. on Nat. Res., to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Apr. 4, 2018), https://texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").