The opinion
February 26,1999
The Honorable Jeff Wentworth Opinion No. JC-0006
Chair, Committee on Nominations
Texas State Senate Re: Whether the resign-to-run provision in Water
P.O. Box 12068 Code section 49.072 applies to a member of the
Austin, Texas 78711 Board of Directors of the Edwards Aquifer
Authority (RQ- 1205)
Dear Senator Wentworth:
You ask whether the resign-to-run provision in chapter 49 of the Water Code applies to the
directors of the Edwards Aquifer Authority (“Authority”). The resign-to-run provision does apply
to directors of the Authority, but a director who is disqualified under that provision will continue to
perform the duties of his office pursuant to article XVI, section 17 of the Texas Constitution until
his successor qualities for office.
The Authority was created by a special law adopted in 1993. ’ Initially, its directors were
appointed, but in 1995 the law was amended to require the election of directors.2 You inform us that
on January 2,1998, an elected member ofthe Board of Directors (“board”) of the Authority filed as
a candidate to run for the office of state representative. He was defeated in the primary election in
March 1998 and has remained on the board ofthe Authority since that time. The board is concerned
that section 49.072 of the Water Code prevents this director from continuing to serve. This provision
reads as follows:
(a) A person serving as director of a district who becomes a candidate for
another office is no longer qualified to serve as director.
(b) In this section, “candidate” has the meaning assigned by Section
25 1.OO1, Election Code.
TEX. WATER CODE ANN. 5 49.072 (Vernon Supp. 1999). See Tex. Att’y Gen. Op. No. DM-493
(1998) (discussing constitutionality of Water Code section 49.072 under article XV, section 7 ofthe
Texas Constitution).
‘Act of May 30,1993,73d Leg., RX, ch. 626,1993 Tex. Gen. Laws 2350.
‘Act of May 29, 1995,74th Leg., RX, ch. 261,1995 Tex. Gen. Laws 2505.
The Honorable Jeff Wentworth - Page 2 (X-0006)
Chapter 49 “applies to all general and special law districts to the extent that [its provisions]
do not directly conflict with a provision in any other chapter of this code or any Act creating or
affecting a special law district.” TEX.WATERCODEANN.5 49.002 (Vernon Supp. 1999). See Loyd
v. Eco Resources, Inc., 956 S.W.2d 110,122 (Tex. App.-Houston [14thDist.] 1997, no pet.) (section
49.066(a) of Water Code chapter 49 on sovereign immunity applies to MUD). The specific
provisions in the other chapter or act prevail in the event of a conflict. TEX. WATERCODEANN.
5 49.002 (Vernon Supp. 1999). The districts subject to chapter 49 include “any district or authority
created by authority of. . Section 59, Article XVI, Texas Constitution, regardless ofhow created.”
Id. 5 49.001(a)(l). The Authority, created pursuant to article XVI, section 59 of the Texas
Constitution,’ is subject to section 49.072 to the extent that this provision does not directly conflict
with another provision in the Water Code or in the act creating the Authority.
We have found no other provisions in the Water Code that conflict with section 49.072, nor
do we find any in the special law establishing the Edwards Aquifer Authority. The act governing
the Authority includes provisions on electing directors and filling vacancies, but no provision
addresses candidacy for another office. Accordingly, section 49.072 applies to the directors of the
Authority.
A person who files an application for a place on a ballot is a candidate within section 25 1.OOl
of the Election Code and is therefore a candidate for purposes of section 49.072 of the Water Code.
When the director of the Authority filed as a candidate for the office of state representative, he
became disqualified to serve on the board and vacated his position on the board. See Tex. Att’y Gen.
Op. No. DM-493 (1998) (discussing effect of Water Code 5 49.072); Tex. Att’y Gen. LO98-29, at
5 (vacancy created upon disqualification). Section 49.105 provides that “all vacancies on the board
shall be tilled for the unexpired term by appointment of the board.” TEX. WATERCODEANN.
i’49.105(a) (Vernon Supp. 1999).
You have informed us that the disqualified director has remained on the board since his
defeat in the primary election in March 1998. Article XVI, section 17 of the Texas Constitution
provides that “[a]11officers within this State shall continue to perform the duties oftheir offices until
their successors shall be duly qualified.” TEX. CONST.art. XVI, 5 17. Pursuant to this provision,
the director in question will continue to perform the duties of his office until his successor has been
appointed and qualifies for office. See Tex. Att’y Gen. LO98-29, at 5-6.
‘Actof May 30, 1993, 73d Leg., RX, ch. 626, 5 1.02, 1993 Tex. Gen. Laws2350,2351.
The Honorable Jeff Wentworth - Page 3 (JC-0006)
SUMMARY
A director of the Edwards Aquifer Authority who filed as a candidate to
run for another office is subject to section 49.072 of the Water Code,
providing that a director who becomes a candidate for another office is no
longer qualified to serve as director. His disqualification as director creates
a vacancy to be tilled by the board, but the disqualified director will continue
to perform the duties of his office pursuant to article XVI, section 17 of the
Texas Constitution until his successor has qualified for office.
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK RENT ERVlN
Deputy Attorney General - General Counsel
ELIZABETH ROBINSON
Chair, Opinion Committee
Prepared by Susan L. Garrison
Assistant Attorney General