Untitled Texas Attorney General Opinion

OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS

JOHN CORNYN

October 3 1,2002

The Honorable Jeff Wentworth Opinion No. JC-0569 --..-

Chair, Committee on Redistricting

Texas State Senate Re: Consequences of the defeat of a ballot

P.O. Box 12068 proposition confirming the creation of the

Austin, Texas 787 11 Southeast Trinity Groundwater Conservation

District, and related questions (RQ-0544-JC)

The Honorable Edmund Kuempel

Chair, Committee on State Recreational

Resources

Texas House of Representatives

P.O. Box 12068

Austin, Texas 78711

Dear Gentlemen:

In November 2001 voters in the Southeast Trinity Groundwater Conservation District (the

“STGCD”) defeated a ballot proposition confirming the STGCD’s creation, although initial directors

were elected to the STGCD’s board. You ask several questions about the consequences of this

election.’ Before we lay out your questions, we will summarize some of the relevant laws and the

facts.

The STGCD covers part, although not all, of Coma1 County and lies within the Hill Country

Priority Groundwater Management Area. See Act of May 28,1999,76th Leg., R.S., ch. 133 1, 8 2(d),

1999 Tex. Gen. Laws 4536,4538; see also 30 TEX. ADMIN.CODE $9 294.30(2), .34 (2002) (Texas

Commission on Environmental Quality, Definitions and Designation of Hill Country Priority

Groundwater Management Area) (defining term “priority groundwater management area” and

designating Hill Country Priority Groundwater Management Area). It was created by a 1999

enactment that also created twelve other groundwater conservation districts under article XVI,

section 59 of the Texas Constitution. See Act of May 28,1999,$1 (a)( 1 l), (b), 1999 Tex. Gen. Laws

at 4536. Although the 1999 legislation created the STGCD, it specified two additional steps in the

district’s establishment. First, the district must be ratified by the Seventy-seventh Legislature in

2001. See id. 6 15,1999 Tex. Gen. Laws at 4539. Second, after the district is ratified, its temporary

‘Letter from Honorable Jeff Wentworth, Chair, Senate Committee on Redistricting, Texas State Senate, and

Honorable Edmund Kuempel, Chair, House Committee on State Recreational Resources, Texas House of

Representatives, to Honorable John Comyn, Texas Attorney General (May 2,2002) (on file with Opinion Committee)

[hereinafter Request Letter].

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The Honorable Edmund Kuempel - Page 2

directors, whom the 1999 Act directs the county commissioners court to appoint, see id. 8 8(a), 1999

Tex. Gen. Laws at 4538, must “call and hold an election to confirm the district and to elect the initial

directors.” Id. § 10(a), 1999 Tex. Gen. Laws at 4539. If the majority of those who vote elect to

confirm the district, the board of temporary directors must declare the winning, qualified initial

directors and notify the Texas Commission on Environmental Quality (c‘TCEQ”)2 of the results of

the initial directors’ election. See id. 5 10(c), 1999 Tex. Gen. Laws at 4539. If the ballot proposition

establishing the district is not confirmed “before the fourth anniversary” of the l-999 Act’s effective

date, the district dissolves on that date, although the district must remain organized “until all debts

are paid.” Id. 8 10(g), 1999 Tex. Gen. Laws at 4539.

In 2001 the Seventy-seventh Legislature enacted two laws ratifying the STGCD.3 The later-

enacted legislation, which was adopted on May 27,200l (“the May 27,200l Act”), relates generally

to “the development and management of’ the state’s water resources and, among other things,

ratifies several of the groundwater conservation districts created in 1999, including the STGCD. Act

of May 27, 2001, caption, 2001 Tex. Gen. Laws at 1991. On the other hand, the earlier enacted

legislation, which was adopted on May 25,200l (“the May 25,200l Act”), pertains solely to the

STGCD, ratifying it and further defining the STGCD’s “administration, powers, duties, operation,

taxing authority, and financing.” Act of May 25,2001, caption, 2001 Tex. Gen. Laws at 3292.

In provisions relating specifically to the STGCD, the May 27,200 1 Act ratifies the STGCD,

“a locally controlled groundwater district, to protect, recharge, and prevent” groundwater waste and

“to control” water subsidence from “groundwater reservoirs.” Act of May 27,200 1, 9 3.100 1,200l

Tex. Gen. Laws at 2041. Compare id. 0 3.1002,2001 Tex. Gen. Laws at 2041 (ratifying STGCD’s

creation) with Act of May 25,2001,§ 1,200l Tex. Gen. Laws at 3292 (same). Except as provided

by that portion of the May 27, 2001 Act that relates specifically to the STGCD, the May 27 Act

grants the STGCD those “permitting and general management powers” that chapter 36 of the Water

Code grants to a groundwater conservation district. See Act of May 27,2001, 8 3.1006(a), 2001

Tex. Gen. Laws at 2042; Act of May 28,1999,§ 5(a), 1999 Tex. Gen. Laws at 4538 (same); cJ: Act

of May 25,2001,§ 5,200l Tex. Gen. Laws at 3294 (“Except as otherwise provided by this Act, the

[STGCD] has all of the rights, powers, privileges, authority, functions, and duties” state’s general

law provides, including Water Code chapter 36.). The STGCD is governed by a board of five

directors, and, the May 27, 2001 Act notes, “[t]emporary directors have been appointed by [the]

Coma1 County Commissioners Court.” Act of May27,2001,§ 3.1007(a)-(b), 2001 Tex. Gen. Laws

at 2043; cJ: Act of May 25,2001,§ 6(a)-(b), 2001 Tex. Gen. Laws at 3294. The temporary directors

are to serve until “initial directors” are “elected at a confirmation election,” and the initial directors

‘Effective September 1,2002, the name of the Texas Natural Resource Conservation Commission changed to

the Texas Commission on Environmental Quality. See Act of May 28,2001,77th Leg., R.S., ch. 965, 0 18.01(a)(l),

2001 Tex. Gen. Laws 1933, 1985; “TNRCC is Now the TCEQ,” at ht@://www.tceo.state.tx.us/l63.234.20.106/AC/

corm-n exec/name channe2.html.

3See Act ofMay 27,2001,77thLeg., RX, ch. 966, art. III, part lo,2001 Tex. Gen. Laws 1991,2041-45; Act

of May 25, 2001, 77th Leg., R.S., ch. 1335, $ 1, 2001 Tex. Gen. Laws 3292, 3292. We will refer to these two acts

collectively as “the 2001 Acts.”

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serve “until permanent directors are elected” at a later date. Act of May 27,200 1, 8 3.1007(b), (d),

2001 Tex. Gen. Laws at 2043; cf: Act of May 25,2001, 0 6(b), (d), 2001 Tex. Gen. Laws at 3294.

The 2001 Acts require the STGCD’s temporary directors to call a confirmation election after

September 1, 2001, to determine three issues: (1) to confirm the district’s establishment; “(2) to

elect five initial directors; and (3) to authorize the district to impose a tax.” Act of May 27,2OOl,

0 3.1008(a), 2001 Tex. Gen. Laws at 2044; accord Act of May 25,2001, 9 8(a), 2001 Tex. Gen.

Laws at 3295. The Coma1 County Cornmissioners Court must “pay the expenses of conducting the

confirmation and initial directors election, subject to reimbursement” either from the district if the

voters confirm the district’s establishment or from available revenues, “including funds allocated

under Section 36.160, Water Code, if’ the district’s establishment is defeated. Act of May 27,2001,

8 3.1008(f), 2001 Tex. Gen. Laws at 2044; cJ: Act of May 25,2001,§ S(f), 2001 Tex. Gen. Laws

at 3296 (requiring Coma1 County Commissioners Court to pay election expenses, “subject to

reimbursement from available revenues” if district’s establishment is confirmed “or from funds

allocated under Section 36.160, Water Code,” if district’s establishment is defeated). In the event

the district’s establishment is defeated, the May 27,200l Act permits the “temporary directors” to

hold three subsequent elections to conk-n the district’s establishment:

If the district is defeated, the temporary directors may call and hold

subsequent elections to confirm establishment of the district. A subsequent election

may not be held earlier than the first anniversary of the date on which the previous

election was held. If the district has not been confirmed at an election held under this

section before the fourth anniversary of the effective date of this part, the district is

dissolved on that date, except that any debts incurred shall be paid and the

organization of the district shall be maintained until all debts are paid.

Act of May 27, 2001, 8 3.1008(g), 2001 Tex. Gen. Laws at 2044; accord Act of May 25,2001,

§$ 8(g), 15(b), 2001 Tex. Gen. Laws at 3296.

Chapter 36 of the Water Code pertains to groundwater conservation districts generally. See

TEX. WATER CODE ANN. 8 36.0015 (Vernon Supp. 2002). Section 36.017, which is particularly

relevant to many of the issues you raise, requires a groundwater conservation district to dissolve

immediately if the voters elect not to confirm the district’s establishment:

(f) If a majority of the votes cast at the election favor the creation of the

district, the temporary board shall declare the district created and shall enter the result

in its minutes.

(g) If a majority of the votes cast at the election are against the creation of

the district, the temporary board shall declare the district defeated and shall enter the

result in its minutes. The temporary board shall continue operations in accordance

with Subsection (h).

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(h) If the majority of the votes cast at the election are against the creation of

the district, the district shall have no further authority, except that any debts incurred

shall be paid and the organization of the district shall be maintained until all the debts

are paid.

(i) If a majority of the votes cast at the election are against the levy of a

maintenance tax, the district shall set production fees to pay for the district’s

regulation of groundwater in the district, including fees based on the amount of water

to be withdrawn from a well.

TEX. WATER CODEANN. 8 36.017(f)-(i) (Vernon Supp. 2002).

You inform us that the STGCD held the required confirmation election in November 2001.

See Request Letter, supra note 1, at 1. The voters rejected the proposition establishing the STGCD,

as well as the proposition authorizing the district to impose a tax. See id. Nevertheless, the voters

selected a slate of initial directors. See id. Based on the circumstances, you ask nine questions,

which you group into three categories:

I. Future election issues

1. Do the temporary directors or the initial directors elected in the

November[] 2001 election call and hold subsequent elections?

2. Even though doing so is not expressly authorized, may a proposition

authorizing the district to impose a maintenance tax be included on the ballot in

future confirmation elections? ,

3. Is the county in which the district is located required to fund future

confirmation elections if the district is unable to do so?

4. Is the holding of future confirmation elections permissible or is it

mandatory?

5. Do elections have to be held in each of the three years after the initial

election?

6. May either the temporary directors or the initial directors dissolve the

district immediately without holding future confirmation elections?

II. Authority of district subsequent to confirmation election

1. What authority does the district have in the interim period between the

recent defeat of the confirmation proposition in the November 2001 election and

subsequent future confirmation elections that can be conducted in each of the next

three years prior to the district’s automatic dissolution in 2005?

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2. Do the temporary directors have the authority to dissolve the district prior

to the district’s automatic dissolution in the absence of a successful confirmation

election?

III.Creation by the Texas Natural Resources Conservation Commission

U’CEQI) o f a groundwater conservation district

=-a--

If the Southeast Trinity Groundwater District is dissolved immediately in

response to the defeat of the proposition confnrning the district at the confirmation

election in November[] 2001, is the [TCEQ] required to establish a groundwater

conservation district in Coma1 County on land that is included within the boundaries

of the Hill Country Priority Groundwater Management Area?

Request Letter, supra note 1, at 3-5.

With multiple legislative acts at issue, it is useful to articulate the appropriate rules governing

conflicts between various statutes generally. Our primary goal is to harmonize all of the acts, so that

each is fully effective. See Exparte Kuester, 21 S.W.3d 264,267 (Tex. Crim. App. 2000) (en bane).

Where a later-enacted provision cannot be harmonized with an earlier-enacted provision, however,

the later-enacted provision prevails. See TEX. GOV’T CODE ANN. $ 3 12.014(a) (Vernon 1998)

(directing us to construe irreconcilable statutes enacted at same legislative session so that later-

enacted statute prevails); cJ: id. $3 11.025(a) (same pertaining to codes). Similarly, where a general

provision cannot be harmonized with a specific provision, the specific provision prevails as an

exception to the general provision. See id. 8 3 11.026; Sam Bassett Lumber Co. v. City of Houston,

198 S.W.2d 879, 881 (Tex. 1947) (stating that specific act is properly regarded as exception to

general law on same subject). A specific provision prevails over a conflicting general provision even

if the specific provision was enacted earlier. See Hallum v. Tex. Liquor Control Bd., 166 S.W.2d

175, 177 (Tex. Civ. App.-Dallas 1942, writ ref d) (quoting 59 C.J. Statutes fj 623(d), at 1057

(1932)); accord Font v. Carr, 867 S.W.2d 873,881 (Tex. Civ. App.-Houston [ 1st Dist.] 1993, writ

dism’d w.o.j.).

For the purposes of the issues you raise, the provisions relating to the STGCD in the two

2001 Acts appear to be consistent. To the extent either of the 2001 Acts cannot be harmonized with

the May 28, 1999 Act, a 2001 Act prevails. See TEX. GOV’T CODE ANN. 9 312.014(a) (Vernon

1998) (directing us to construe irreconcilable statutes enacted at same legislative session so that later-

enacted statute prevails); cJ: id. 8 3 11.025(a) (same pertaining to codes). Finally, the 1999 and 2001

Acts prevail over irreconcilable general provisions in chapter 35 or 36 of the Water Code. See Act

of May 27,2001, 0 3.1012,2001 Tex. Gen. Laws at 2045 (stating explicitly that May 27,200l Act

prevails over Water Code chapter 36); TEX. WATER CODEANN. 0 36.052 (Vernon 2000) (stating

that, with exception of some named sections of chapter 36, “a special law governing a specific

district . . . prevail[s] over” chapter 36).

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I. Future election issues

You ask first whether it is the temporary directors or the newly elected initial directors who

may call subsequent confirmation elections. See Request Letter, supra note 1, at 3. Chapter 36 of

the Water Code does not apply to this issue; rather, the 1999 and 2001 Acts resolve the issue.

We conclude that subsequent elections may be called and held by the board of temporary

directors, not the board of initial directors. The 2001 Acts expressly authorize temporary directors

to “call and hold subsequent elections.” Act of May 27,2001, 8 3.1008(g), 2001 Tex. Gen. Laws

at 2044; Act of May 25,2001, 8 8(g), 2001 Tex. Gen. Law at 3296. Moreover, under the May 28,

1999 Act, the winners of the initial directors’ election may be declared only if the district is

confirmed at the election:

(c) If the district is confirmed at the election, the temporary board of

directors, at the time the vote is canvassed, shall:

(1) declare the qualified person who receives the most votes

for each position to be elected as the initial director for that position;

and

(2) include the results of the initial directors’ election in the

district’s election report to the [TCEQ].

Act of May 28,1999,§ 10(c), 1999 Tex. Gen. Laws at 4539 (emphasis added). The 1999 Act alone

provides for this procedural matter, and it therefore comports with the 2001 Acts and chapter 36 of

the Water Code. See Exparte Kuester, 2 1 S.W.3d at 267 (emphasizing importance of harmonizing

legislation so that all is effective). Because the STGCD was not confirmed at the November 2001

election, the board of temporary directors lacks authority to declare the winning initial directors and

to report the names to the TCEQ. Accordingly, the temporary directors continue in office, and until

the STGCD is confirmed, only the board of temporary directors may call and hold a subsequent

election.

You ask next whether “a proposition authorizing the [STGCD] to impose a maintenance

tax [may] be included on the ballot in future confirmation elections.” Request Letter, supra

note 1, at 3.

We conclude that the board of temporary directors may not put the issue of a maintenance

tax on the ballot in subsequent confirmation elections. The 2001 Acts specifically provide for the

calling of subsequent elections only “to confirm” the STGCD’s establishment. See Act of May 27,

2001,§ 3.1008(g), 2001 Tex. Gen. Laws at 2044; Act ofMay25,2001,§ 8(g), 2001 Tex. Gen. Laws

at 3296; cJ: Act of May 28, 1999, 6 10(g), 1999 Tex. Gen. Laws at 4539 (stating that, if district’s

establishment has not been confirmed before fourth anniversary of 1999 Act’s effective date, district

is dissolved). By their terms, the 2001 Acts distinguish between the confirmation election and the

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initial directors’ election, and we believe that, by extension, they also distinguish a tax election.

First, the relevant section is titled “Confirmation Election and Election of Initial Directors.”

Act of May 27,2001, 5 3.1008 title, 2001 Tex. Gen. Laws at 2044; Act of May 25,2001, 9 8 title,

2001 Tex. Gen. Laws at 3295. But see TEX. GOV’T CODEANN. 4 3 11.024 (Vernon 1998) (stating

that title does not limit or expand statute’s meaning). Additionally, the section lists three separate

propositions that may be included on the election ballot: (1) confirmation of the STGCD’s

establishment; (2) election of initial directors; and (3) authorization to impose a tax. See Act of May

27,2001, 8 3.1008(a), 2001 Tex. Gen. Laws at 2044; Act of May 25,2001, 5 8(a), 2001 Tex. Gen.

Laws at 3295. Finally, subsection (a) of the relevant section lists as one of the propositions “to

confirm establishment of the district,” and subsection (g), which authorizes the board of temporary

directors to call and hold subsequent elections uses identical language: “If the district is defeated,

the temporary directors may call and hold subsequent elections to confirm establishment of the

district.” Act of May 27, 2001, 8 3.1008(a), (g), 2001 Tex. Gen. Laws at 2044; Act of May 25,

2001,§ 8(a), (g), 2001 Tex. Gen. Laws at 3295 (emphasis added). While the 2001 Acts specifically

require initial directors to be elected at the confirmation election, see Act of May 27, 2001,

8 3.1007(d), 2001 Tex. Gen. Laws at 2043 (requiring initial directors to be elected at confirmation

election); Act of May 25, 2001, 5 6(d), 2001 Tex. Gen. Laws at 3294 (same), there is no similar

requirement that the maintenance-tax option be on a confirmation-election ballot. Once the

STGCD’s creation is confirmed, it may conduct an election to levy taxes to pay the district’s

“maintenance and operating expenses.” TEX. WATER CODEANN. 8 36.201(c) (Vernon 2000).

We conclude, in answer to your third question, that the county in which a district is located

must “fund future confirmation elections if the district is unable to do so.” Request Letter, supra

note 1, at 3. The 2001 Acts explicitly require the Coma1 County Commissioners Court to pay the

expenses of a confirmation election: “The Coma1 County Commissioners Court shall pay the

expenses of conducting the confirmation and initial directors election.” Act of May 27, 2001,

8 3.1008(f), 2001 Tex. Gen. Laws at 2044; Act of May 25, 2001, 9 8(f), 2001 Tex. Gen. Laws

at 3296. If the district is confirmed, the STGCD may reimburse Coma1 County. See Act of

May 27,2001,§ 3.1008(f), 2001 Tex. Gen. Laws at 2044; Act of May 25,2001,§ 8(f), 2001 Tex.

Gen. Laws at 3296.

In answer to your fourth question, we conclude that the board of temporary directors may call

confirmation elections subsequent to the initial election, but it is not required to do so. The 2001

Acts use permissive, not mandatory, language. They provide that, if the STGCD is defeated, “the

temporary directors may call and hold subsequent elections.” Act of May 27, 2001, 8 3.1008(g),

2001 Tex. Gen. Laws at 2044 (emphasis added); Act of May 25,2001, (i 8(g), 2001 Tex. Gen. Laws

at 3296 (same); Act of May 28, 1999, 8 10(g), 1999 Tex. Gen. Laws at 4539 (same). The term

“may” generally denotes permission to perform a certain act, but it does not require that the act be

done. See BRYANA. GARNER,ADICTIONARYOFMODERNLEGALUSAGE354,354 (1987). Neither

the 1999 Act nor chapter 36 of the Water Code apply to this issue because neither can be harmonized

with the 2001 Acts, which prevail in the event of a conflict. The 1999 Act, which provides that a

district will be dissolved if its “establishment . . . has not been confirmed,” does not clearly permit

the board of temporary directors to call and hold subsequent elections. See Act of May 28, 1999,

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8 10(g), 1999 Tex. Gen. Laws at 4539. Section 36.017 of the Water Code does not permit

subsequent elections, but rather precludes the board of temporary directors to do anything but pay

its debts. See TEX. WATER CODEANN. 8 36.017(g)-(h) (Vernon Supp. 2002).

In a related question, you ask whether the board of temporary directors must call and conduct

a confirmation election in “each of the three years after the initial election.” Request Letter, supra

note 1, at 3. It need not. Under the 2001 Acts, if the STGCD’s board of temporv directors chooses

to call a confirmation election subsequent to an election in which the district’s confirmation was

defeated, the election may be conducted no sooner than one year after the immediately preceding

election. See Act of May 27,2001, fj 3.1008(g), 2001 Tex. Gen. Laws at 2044; accord Act of May

25,2001, 0 8(g), 2001 Tex. Gen. Laws at 3296. The 2001 Acts do not, on the other hand, require

the STGCD to hold a confirmation once each year for four years. For the reasons mentioned in

answer to your previous question, the 1999 Act and section 36.017 of the Water Code do not apply.

Your final question in the “Future Election Issues” section is whether the board of temporary

directors may dissolve the district immediately without holding future confirmation elections.

See Request Letter, supra note 1, at 3. It may not. The board may exercise only those powers that

the legislature has delegated to it, either expressly or implicitly. See Tex. Att’y Gen. Op. No.

JC-0202 (2000) at 2 (stating that special purpose district may exercise only express or implied

powers) (citing Tri-City Fresh Water Supply Dist. No. 2 v. Mann, 142 S.W.2d 945,946 (Tex. 1940)).

“Implied powers are those that are ‘indispensable’ [to accomplishing the political subdivision’s

purposes]; powers ‘merely convenient’ or ‘useful’ cannot be implied,” and the political subdivision

may not assume them. Id. (quoting Tri-City Fresh Water Supply Dist. No. 2, 142 S.W.2d at 947).

While the STGCD is not required to conduct any more confirmation elections before its automatic

dissolution on September 1,2005, nothing in the 1999 Act, either of the 2001 Acts, or chapter 36

of the Water Code authorizes the STGCD’s board of temporary directors to dissolve the district in

any circumstance.

II. District’s authority subsequent to confirmation election

Your next two questions focus upon the board’s authority in light of the confirmation

election’s outcome. See Request Letter, supra note 1, at 4. The second question in this section

appears to reiterate the question we have just answered: you ask whether the temporary directors

may dissolve the district prior to the STGCD’s “automatic dissolution in the absence of a successful

confirmation election.” Id. As we have stated, the STGCD’s board of temporary directors lacks

authority to dissolve the district. See supra at 8.

You also ask what authority the STGCD has “in the interim period between the” November

2001 confirmation election and subsequent “confirmation elections that can be conducted in each

of the next three years prior to the district’s automatic dissolution in 2005.” Request Letter, supra

note 1, at 4.

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We conclude that the authority of the STGCD’s current board is limited to that expressly

granted by section 5 of the 1999 Act and section 36.206 of the Water Code. Only these two laws

refer specifically to temporary directors’ authority. Section 5 of the 1999 Act expressly permits the

temporary directors to exercise some powers granted under chapter 36 of the Water Code, but

withholds other chapter 36 powers:

(a) Except as provided by Subsections (c) and (d) of this section or otherwise

by this Act, the temporary directors of a district have the same permitting and general

management powers as those granted to initial and permanent directors under

Chapter 36, Water Code.

(b) The temporary directors or their designees have the authority to enter any

public or private property located within the district to inspect a water well as

provided by Section 49.22 1, Water Code.

(c) The temporary directors do not have the authority granted by the

following provisions of Chapter 36, Water Code:

(1) Sections 36.017,36.019,36.020, and 36.059, relating to

elections;

(2) Sections 36.105,36.1071,36.1072,36.1073, and 36.108,

relating to eminent domain and management plans;

(3) Sections 36.17 l-36.18 1, relating to bonds and notes;

(4) Sections 36.201-36.204, relating to taxes; and

(5) Sections 36.321-36.359, relating to annexation and

consolidation.

(d) The temporary directors may regulate the transfer of groundwater out of

the district as provided by Section 36.122, Water Code, but may not prohibit the

transfer of groundwater out of the district.

Act of May 28, 1999, 0 5, 1999 Tex. Gen. Laws at 4538. In addition, section 36.206 of the Water

Code specifically authorizes a board of temporary directors to collect user fees:

(a) A temporary board may set user fees to pay for the creation and initial

operation of a district, until such time as the district creation has been confirmed and

a permanent board has been elected by a majority vote of the qualified voters voting

in the district in an election called for those purposes.

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(b) The rate of fees set for agricultural uses shall be no more than [twenty]

percent of the rate applied to municipal uses.

(c) District fees may not be used to purchase groundwater rights unless the

purchased rights are acquired for conservation purposes and are permanently held in

trust not to be produced. -.v

TEX. WATER CODEANN. lj 36.206 (Vernon Supp. 2002). No other provision in the 1999 Act, either

of the 2001 Acts, or chapter 36 of the Water Code provides specific authority for temporary

directors.

III. TCEQ’s creation of a groundwater conservation district

You ask last whether, “if the [STGCD] is dissolved immediately in response to” the

electorate’s vote not to confirm the district in November 2001, “the [TCEQ is] required to establish

a groundwater conservation district in Coma1 County on land that is included within the boundaries

of the Hill Country Priority Groundwater Management Area.” Request Letter, supra note 1, at 5.

We have concluded that the STGCD may not be dissolved immediately, and, accordingly, we do not

answer your question. See supra at 8. Nonetheless, we note that section 35 .012(b) of the Water

Code does not appear to require the TCEQ to delay compliance until September 1,2005. See TEX.

WATERCODEANN. $4 35.012(b), 36.0151 (Vernon Supp. 2002); Act ofMay27,2001,§ 3.1008(g),

2001 Tex. Gen. Laws at 2044; Act ofMay25,2001,§ 15(b), 2001 Tex. Gen. Laws at 3297. Section

35.0 12(b) requires the TCEQ to create one or more groundwater conservation districts covering the

territory of a priority groundwater management area within two years of the date the TCEQ

designated the area. See TEX. WATER CODEANN. 0 35.012(b) (Vernon Supp. 2002).

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SUMMARY

Because the voters elected not to confirm the Southeast

Trinity Groundwater Conservation District in November 2001, the

initial directors elected at that election do not take office. Rather, the

temporary directors continue in their positions, and subsequent

confirmation elections may be called by the board of temporary

directors. _--.--

A future confirmation election may not include a proposition

to authorize the district to impose a maintenance tax. Coma1 County,

the county in which the Southeast Trinity Groundwater Conservation

District is located, must fund future confirmation elections if the

district is unable to do so. The board of temporary directors is

permitted, but not required, to call and hold a future confirmation

election, and it is not required to hold such an election in each of the

three years after the initial election in November 2001. u

The temporary directors may not dissolve the district, whether

or not the board calls and holds a future confirmation election. If the

district has not been confirmed by September 1,2005, it will dissolve

by operation of law. The board of temporary directors has that

authority set out in section 5 of the 1999 Act creating the district, see

Act of May 28,1999,76th Leg., R.S., ch. 133 1, 0 5, 1999 Tex. Gen.

Laws 4536,4538, and section 36.206 of the Water Code, see TEX.

WATER CODEANN. 4 36.206 (Vernon Supp. 2002).

Attorney General of Texas

HOWARD G. BALDWIN, JR.

First Assistant Attorney General

NANCY FULLER

Deputy Attorney General - General Counsel

SUSAN DENMON GUSKY

Chair, Opinion Committee

Kymberly K. Oltrogge

Assistant Attorney General, Opinion Committee