How long are the terms of office for a Texas conservation district's board of directors?

Plain-English summary

The Chambers County Auditor asked whether the board of directors of the Trinity Bay Conservation District could change the directors' terms of office from two years to four years. The District was created in 1949 as a conservation and reclamation district under article XVI, § 59 of the Texas Constitution. That 1949 special law set up a five-member board, each serving two-year terms in staggered elections. The board tried twice to lengthen those terms: in 1991 it asked the Legislature for authority to switch to four-year terms, and four bills were filed that session to do it, but none passed. Then in 2016 the board used Election Code § 41.0052 to move its election date to the November uniform date and, in the same order, recited that the affected seats would carry four-year terms.

The AG did not resolve the question by asking whether the board had power to lengthen the terms on its own. Instead, the AG concluded the terms were already set at four years by general law. Water Code chapter 49 applies to all general-law and special-law districts, except where it directly conflicts with another Water Code chapter or with the act that created a special-law district; § 49.002(a) says the other provision controls in that event. The District fits the chapter's definition of "district" under § 49.001(1), so chapter 49 generally governs it.

The decisive provision is § 49.103. Subsection (a) says the members of a district board "shall serve staggered four-year terms." Subsection (e) adds its own conflict rule: "Section 49.002 notwithstanding, in all areas of conflict the provisions of Subsections (a) and (b) shall take precedence over all prior statutory enactments." The AG read those two subsections together to mean § 49.103(a) overrides both the general conflict rule in § 49.002(a) and the two-year terms in the 1949 Act, because both are "prior statutory enactments." Citing Molinet v. Kimbrell for the rule that "notwithstanding any other law" language signals that a statute prevails over conflicting law, the AG concluded § 49.103(a) governs and the directors serve staggered four-year terms. Having reached that result, the AG did not address the auditor's second, conditional question.

What this means for you

This describes what the opinion holds. It is the AG's 2021 reading of the Water Code; statutes can change, so confirm the current text before relying on it.

Trinity Bay Conservation District and similar special-law districts

The opinion treats the four-year-term rule in Water Code § 49.103(a) as controlling over a two-year term set in the act that created the district, because § 49.103(e) gives subsection (a) precedence over prior enactments. For a district in this position, the directors' terms come from the Water Code, not from the older special law.

County auditors and district administrators

The opinion shows why checking only the district's enabling act can give the wrong answer on term length. The AG looked past the 1949 Act to chapter 49 of the Water Code and its conflict provisions. Anyone reconciling a special-law district's charter against the Water Code should account for § 49.103(e)'s "takes precedence over all prior statutory enactments" language.

Election administrators

The opinion notes the District's 2016 use of Election Code § 41.0052 to move its general election to the November uniform date. The AG did not rest its conclusion on that order; it found the four-year terms in the Water Code itself.

Common questions

Q: How long are the Trinity Bay Conservation District directors' terms?
A: Four years, staggered, under Water Code § 49.103(a). The AG concluded that provision overrides the two-year terms in the 1949 act that created the District.

Q: The 1949 law that created the District said two years. Why doesn't that control?
A: Because § 49.103(e) says subsection (a) "shall take precedence over all prior statutory enactments." The AG treated the 1949 Act as a prior enactment, so the Water Code's four-year term wins.

Q: Did the board have to vote to change the terms?
A: The AG did not decide that. It concluded the four-year terms were already set by the Water Code, so it did not need to reach whether the board could change them on its own.

Q: Didn't the Legislature reject bills to make the terms four years?
A: Four bills to change the terms failed in 1991. But the AG's conclusion did not depend on those bills; it rested on § 49.103(a), which applies by its own terms to districts like this one.

Q: What about the older opinion that said two years?
A: The AG explained that the 1997 amendment to § 49.103(e) superseded the earlier opinion DM-269, which had concluded a different district's directors held two-year terms, to the extent of any inconsistency.

Background and statutory framework

Conservation and reclamation districts are authorized by article XVI, § 59 of the Texas Constitution. The Trinity Bay Conservation District was created by a 1949 special law (Tex. Water Aux. Laws art. 8280-135), which set five directors with two-year staggered terms. Some statutes creating special-law districts were never repealed or moved into the Water Code and remain in effect under Water Code § 1.001(d); the 1949 Act is one of them, as the AG noted (citing Save Our Springs All., Inc. v. Lazy Nine Mun. Util. Dist. for the general-law versus special-law distinction).

Water Code chapter 49 supplies default governance rules for districts. Section 49.002(a) makes chapter 49 apply except where it directly conflicts with another Water Code chapter or a special-law district's act, in which case the other law controls. Under § 49.001(1), "district" includes districts created under article XVI, § 59 "regardless of how created." Section 49.103(a) sets staggered four-year terms for board members, and § 49.103(e) provides that, notwithstanding § 49.002, subsections (a) and (b) take precedence over all prior statutory enactments in any area of conflict. The AG applied Molinet v. Kimbrell, where the Texas Supreme Court held that "notwithstanding any other law" language shows legislative intent for a provision to prevail over conflicting law, and noted the 1997 amendment that gave § 49.103(a) precedence over prior laws (superseding opinion DM-269).

Citations and references

Statutes:

• Tex. Const. art. XVI, § 59 (conservation and reclamation districts)
• Tex. Water Code § 49.103 (staggered four-year terms; precedence provision)
• Tex. Water Code §§ 49.001(1), 49.002(a) (definition; chapter 49 applicability and conflict rule)
• Tex. Elec. Code § 41.0052(a), (b) (moving the general election to the November uniform date)

Key cases:

• Molinet v. Kimbrell, 356 S.W.3d 407 (Tex. 2011) ("notwithstanding any other law" means the statute prevails over conflicting law)
• Save Our Springs All., Inc. v. Lazy Nine Mun. Util. Dist. ex rel. Bd. of Dirs., 198 S.W.3d 300 (Tex. App.—Texarkana 2006, pet. denied) (general-law versus special-law districts)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0389
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2021/kp-0389.pdf

Original opinion text

PAXTON
ATTORNEY GENERAL OF TEXAS

November 1, 2021

Mr. Tony Sims
Chambers County Auditor
Post Office Box 910
Anahuac, Texas 77514

Opinion No. KP-0389

Re: Authority of a conservation district to change the directors' terms of office from two to four years (RQ-0407-KP)

Dear Mr. Sims:

You ask whether the Trinity Bay Conservation District (the "District") board of directors possesses the authority to change the directors' terms of office from two to four years.¹

Background: the 1949 Act creating the District

In 1949, the Legislature created the District as a conservation and reclamation district under article XVI, section 59, of the Constitution. See TEX. WATER AUX. LAWS art. 8280-135 [Act of May 19, 1949, 51st Leg., R.S., ch. 282, § 1, 1949 Tex. Gen. Laws 510] ("1949 Act"); see also TEX. CONST. art. XVI, § 59 (authorizing the creation of conservation and reclamation districts). The 1949 Act established a five-person board of directors, each to serve two-year terms of office, elected in staggered elections. 1949 Act, § 2. While the 1949 Act has been amended several times, the amendments do not address the length of directors' terms.² In 1991, the Board sought amendments to the 1949 Act that would authorize the Board to change to four-year terms. See Request Letter at 1–2; Exhibit "A," Trinity Bay Conservation Dist. Bd. of Dirs., Resolution 91-1 (Jan. 22, 1991). You explain that four bills were introduced in the Legislature in 1991 to change the members' terms to four years but none passed.³ Request Letter at 2.

¹ See Letter and Exhibits from Mr. Tony Sims, Chambers Cnty. Auditor, to Honorable Ken Paxton, Tex. Att'y Gen. at 2 (May 5, 2021), https://www2.texasattorneygeneral.gov/opinions/opinions/51paxton/rq/2021/pdf/RQ0407KP.pdf ("Request Letter" and "Exhibits A–C," respectively, on file with the Op. Comm.).

² See Act of Feb. 28, 1950, 51st Leg., 1st C.S., ch. 45, 1950 Tex. Gen. Laws 116, 116–18; Act of Apr. 24, 1957, 55th Leg., R.S., ch. 144, 1957 Tex. Gen. Laws 321, 321–22; May 15, 1969, 61st Leg., R.S., ch. 362, 1969 Tex. Gen. Laws 1114; Act of May 12, 1975, 64th Leg., R.S., ch. 249, 1975 Tex. Gen. Laws 604, 604–07; Act of May 7, 1987, 70th Leg., R.S., ch. 121, 1987 Tex. Gen. Laws 285, 285–86.

³ See Tex. H.B. 2780, 72d Leg., R.S. (1991); Tex. H.B. 136, 72d Leg., 1st C.S. (1991); Tex. S.B. 45, 72d Leg., 1st C.S. (1991); Tex. S.B. 53, 72d Leg., 2d C.S. (1991).

You further tell us that in 2016, pursuant to the authority granted in subsections 41.0052(a) and (b) of the Election Code, the District board of directors adopted an order changing the election date of District board of director members from May 2016 to November 8, 2016, and extending members' terms to the November date. Id. at 2; Exhibit "C", Trinity Bay Conservation District Board of Directors, Order Transitioning Board of Director Elections to November of Even-Numbered Years and Extending Terms of Directors (Feb. 17, 2016).⁴ The order recites: "Those positions to have appeared on the May, 2016 ballot will appear on the November, 2016 ballot and will be 4-year terms." Exhibit "C" at 1. You ask whether the District board of directors possessed authority to change members' terms from two-years to four-years. Request Letter at 4.

Chapter 49 of the Water Code

Because the 1949 Act creating the District established board member terms of two years, unchanged by any amendment specifically concerning the District, we must examine other applicable law to determine whether the District board of directors' terms remain established as two-year terms. You reference subsection 49.103(a) of the Water Code, which provides that water district board members serve four-year terms. Request Letter at 3; TEX. WATER CODE § 49.103(a). The statute specifies that chapter 49

applies to all general and special law districts⁵ to the extent that the provisions of this chapter do not directly conflict with a provision in any other chapter of this code or any Act creating or affecting a special law district. In the event of such conflict, the specific provisions in such other chapter or Act shall control.

TEX. WATER CODE § 49.002(a).⁶ The chapter defines "district" as including any district or authority created by authority of article XVI, section 59 of the Constitution, "regardless of how created."⁷ Id. § 49.001(1). Accordingly, the District is generally governed by chapter 49 of the Water Code, but only to the extent chapter 49 does not directly conflict with a provision in another Water Code provision or an Act creating a special-law district. Id. §§ 49.001(1), .002(a). Subsection 49.002(a) contains a choice-of-conflicting-law provision, stating that in the event of such a conflict, the other Water Code provision or the special district law control over section 49.002. Id. § 49.002(a).

⁴ See TEX. ELEC. CODE § 41.0052(a), (b) (authorizing specified districts to change their general election date for officers to the November uniform election date and conform the terms of office to the new election date).

⁵ General-law water districts are those created according to procedures prescribed in the Water Code, while a special-law district is created by a specific act of the Legislature. See Save Our Springs All., Inc. v. Lazy Nine Mun. Util. Dist. ex rel. Bd. of Dirs., 198 S.W.3d 300, 313 (Tex. App.—Texarkana 2006, pet. denied). Some statutes creating a special-law district were neither repealed nor placed in the Water Code and remain in effect. See TEX. WATER CODE § 1.001(d). The 1949 Act creating the District is such a law. See TEX. WATER AUX. LAWS 47, 79 (Vernon's 2020 Pamphlet).

⁶ The subsection excepts certain districts governed by chapter 36 of the Water Code concerning groundwater conservation districts. TEX. WATER CODE § 49.002(a), (b). This subsection also includes an exception that is not pertinent here.

⁷ The definition contains other exceptions not pertinent here. See id. § 49.001(1) (excepting specified districts including districts governed by chapter 36 of the Water Code concerning groundwater conservation districts).

With respect to board members' terms, section 49.103 provides in relevant part:

(a) [With an exception not pertinent here], the members of the board of a district shall serve staggered four-year terms.

....

(e) Section 49.002 notwithstanding, in all areas of conflict the provisions of Subsections (a) and (b) shall take precedence over all prior statutory enactments.

Id. § 49.103(a), (e). By its plain terms, section 49.103 not only establishes a four-year term for directors in subsection (a) but also includes its own choice-of-conflicting-law provision in subsection (e), resolving any conflict with prior statutory enactments about directors' terms in favor of subsection (a). Id.

When a statute expressly states how to resolve conflicts in statutes, courts determine priority according to the statute's language. See Molinet v. Kimbrell, 356 S.W.3d 407, 413–14 (Tex. 2011); see also Tex. Att'y Gen. Op. No. KP-0151 (2017) at 3 (discussing Molinet). Here, two choice-of-conflicting-law provisions potentially apply—subsection 49.002(a) for chapter 49 generally and subsection 49.103(e) for board member terms specifically. Compare TEX. WATER CODE § 49.002(a), with id. § 49.103(a), (e). But subsections 49.103(a) and (e) plainly state that directors shall serve staggered four-year terms, "section 49.002 notwithstanding." Id. § 49.103(a), (e); see also Molinet, 356 S.W.3d at 413 (holding that "notwithstanding any other law" in a statute evidenced legislative intent that it "prevails over conflicting law"). Moreover, the directive in subsection 49.103(a) "take[s] precedence over all prior statutory enactments." TEX. WATER CODE § 49.103(e). Both section 49.002(a) and the 1949 Act are "prior statutory enactments."⁸ Therefore, subsection 49.103(a) governs the length of directors' terms. Subsection 49.103(a) expressly establishes four-year staggered terms for district board members.⁹ Id. That being the case, we do not address your second question conditioned on a conclusion to the contrary.

⁸ See Act of May 24, 1995, 74th Leg., R.S., ch. 715, § 2, 1995 Tex. Gen. Laws 3755, 3756 (enacting Water Code section 49.002); Act of May 30, 1997, 75th Leg., R.S., ch. 1070, § 4, 1997 Tex. Gen. Laws 4074, 4075 (amending Water Code section 49.103(e) to provide that subsection (a) prevails over conflicting prior laws).

⁹ You reference an Attorney General opinion, DM-269, that concluded the directors of the El Paso Water Control and Improvement District held two-year terms contrary to the Water Code's provision for four. Request Letter at 3; Tex. Att'y Gen. Op. No. DM-269 (1993). The 1997 amendment to subsection 49.103(e) of the Water Code superseded the conclusion stated in DM-269 to the extent of any inconsistency.

S U M M A R Y

While the 1949 special law creating the Trinity Bay Conservation District established a board of directors for the District with members having two-year terms, the subsequently enacted section 49.103 of the Water Code provides for the members of the board of certain districts, including the Trinity Bay Conservation District, to serve staggered four-year terms.

Very truly yours,

KEN PAXTON
Attorney General of Texas

BRENT E. WEBSTER
First Assistant Attorney General

LESLEY FRENCH
Chief of Staff

MURTAZA F. SUTARWALLA
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

WILLIAM A. HILL
Assistant Attorney General, Opinion Committee