Untitled Texas Attorney General Opinion

. I

The Attorney General of Texas

November 4, 1981

MARK WHITE

Attorney General

Supreme Court Building

Honorable James S. McGrath Opinion No. w-383

P. 0. Box 12549 Criminal District Attorney

Austin, TX. 79711 Jefferson County Courthouse Re: Interpretation of

5121475-2501 Beaumont, Texas 77704 legislation creating Jefferson

Telex 910/974-1367

County Drainage District No. 7

Telecopier 51214750266

Dear Mr. McGrath:

1807 Main St.. Suite 14W You ask three questions regarding the provisions for choosing

Dallas, TX. 75201 directors of the Jefferson County Drainage District No. 7.

21417428944

In 1962, the Texas Legislature created the Jefferson County

4824 Alberta Ave.. Suite 160 Drainage District No. 7, a special district established pursuant to

El Paso. TX. 79905 article XVI, section 59 of the Texas Constitution. Acts 1962, 57th

91515334464 Leg., ch. 34, at 98. Section 4 of the act provided that the

commissioners of the district be appointed by the Jefferson County

1220 Dallas Ave., Suite 202

Commissioners Court with no more than one commissioner appointed from

Howlo”, TX. 77002 any one municipality so long as five municipalities existed within the

713/65ooSS6 district. At the district's inception, then, the only method of

selecting district commissioners was by appointment by the county

commissioners court. However, section 4 was amended in 1977 to permit

606 Broadway, Suite 312

Lubbock. TX. 79401

the election of the district's commissioners. The 1977 amendment

8061747-522-9 provides, in pertinent part, as follows:

...[T]he provisions of Sections 56.061 through

4309 N. Tenth. Suite S

56.063, Water Code...shall apply to the

McAllen, TX. 79501

51218824547

Commissioners of the District. Section 56.064,

Water Code. as amended. shall auolv to this

District, except that ;he Commissioners Court

200 Main Plaza, Suite 400 shall order the election on petition of at least

San Antonio. TX. 79205

20 percent of the real property taxpayers of the

51212254191

district, and that five Commissioners shall be

elected at lame if an election is ordered under

An Equal Opportunity/ that section...: (Emphasis added).

Afflrmative Action Employer

Acts 1977, 65th Leg., ch. 614, 01, at 1520. Section 56.061 of the

Water Code provides that the commissioners (or "directors") of the

district be appointed by the county commissioners court. Section

56.064 of the Water Code declares that "[o]n petition of a majority of

the real property taxpayers of a district requesting an election of

district directors, the commissioners court shall immediately order an

election...." (Emphasis added).

p. 1295

Mr. James S. McGrath - Page 2 (m-383)

You request our opinion concerning the proper interpretation of

the 1977 amendment. First, you ask whether the 1977 amendment, which

authorizes 20 percent of the real property taxpayers of the district

to require the election of district directors, constitutes an improper

delegation of legislative authority to private citizens both to make

and to suspend the law in violation of the Texas Constitution. We

hold that the amendment does neither.

Article I, section 28 of the Texas Constitution provides that

"[n]o power of suspending laws in this State shall be exercised except

by the Legislature." Article III, section 1 of the Texas Constitution

declares that "]t]he Legislative power of this State shall be vested

in a Senate and House of Representatives...." It has been suggested

that the 1977 amendment, by empowering 20 percent of the real property

taxpayers of the district to determine the method of governance of the

drainage district, authorizes them to suspend the special law

provision on appointment of the district's directors and thereby

authorizes an unconstitutional delegation of legislative authority to

a group of private citizens.

Early on, the Texas Supreme Court recognized the distinction

between a delegation of legislative power to make a law and the

discretionary exercise of a power conferred by a law. In State v.

Swisher, 17 Tex. 441 (1856). the supreme court struck down as being an

unconstitutional delegation of legislative authority a statute which

empowered the voters of each county to determine by election whether a

certain prohibition on the sale of liquor would be effective in their

respective counties. In City of San Antonio v. Jones, 28 Tex. 19

(1866) 3 the supreme court upheld a statute which authorized a

municipality, after an affirmative vote of its citizens, to subscribe

to stock in a railroad company. The court reaffirmed State v.

Swisher, w. but distinguished it in the following passage:

The legislature may grant authority as well as

give commands, and acts done under its authority

are as valid as if done in obedience to its

commands. Nor is a statute, whose complete

execution and application to the subject matter

is, by its provisions, made to depend on the

assent of some other body, a delegation of

legislative power. The discretion goes to the

exercise of the power conferred by the law, but

not to make the law itself.

The law, in such cases, may depend for its

Practical efficiency on the act of some other body

or individual; still, it is not derived from such

act, but from the legislative authority.

Lenislation of this character is of familiar use,

and occurs whenever rights or privileges are

conferred upon individuals or bodies, which may be

p. 1296

Mr. James S. HcGrath - Page 3 (MW-383)

exercised or not in their discretion. And if it

may be left to the judgment of individuals or

private corporations whether they will avail

themselves of privileges conferred by the

legislature, there is certainly no valid reason

why the same may not be done with citizens of a

town or district, who, as a class, are to be

affected by the proposed act. (Emphasis added).

28 Tex. at 32-33.

Thus, the Texas Court of Criminal Appeals and the Texas Supreme

Court struck down as being an unconstitutional delegation of

legislative authority a statute which authorized voters in each county

to decide whether pool halls should be prohibited in their respective

counties. Lyle v. State, 193 S.W. 680 (Tex. Grim. App. 1917); Ex

parte Mitchell, 177 S.W. 953 (Tex. 1915). Cf. Brown Cracker 6 Candy

Co. v. City of Dallas, 137 S.W. 342 (Tex, 1911) (city ordinance

regulating prostitution); Ex parte Farnsworth, 135 S.W. 535 (Tex.

Grim. App. 1911) (city ordinance governing rate-setting procedures).

At the same time, Texas courts have recognized that statutes

which confer powers to particular political subdivisions only upon an

affirmative vote of those persons affected thereby are not

impermissible exercises of legislative authority. A statute which

authorized municinalities to take control of their schools won an

affirmative vote of the citizens therein was upheld in Werner v. City

of Galveston, 7 S.W. 726 (Tex. 1888), rehearing denied, 12 S.W. 159

(Tex. 1888). The statute was challenged as an unconstitutional

delegation -of legislative authority to the voters of the respective

municipalities. The supreme court declared:

It is a well-settled principle that the

legislature cannot delegate its authority to make

laws by submitting the question of their enactment

to a popular vote; and in State v. Swisher, 17

Tex. 441, this court held an act of the

legislature which authorized the counties of the

state to determine by popular vote whether liquor

should be sold in their respective limits to be

unconstitutional. But it does not follow from

this that the legislature has no authority to

confer a power upon a municipal corporation, and

to authorize its acceptance or rejection by the

municipality according to the will of its voters

as expressed at the ballot box. (Emphasis added).

7 S.W. at 727.

In Riley v. Town of Trenton, 184 S.W. 344 (Tex. Civ. App. -

Texarkana 1916, writ ref'd), the court approved a statute which

provided that the benefits of then chapter 11 of title 22 of the

Mr. James S. McGrath - Page 4 (MW-383)

Revised Civil Statutes relating to cities and towns applied to any

city when either the governing body submitted the question to the

voters or one hundred qualified voters petitioned for an election and

the majority of votes were cast therefor. The court declared:

In voting to adopt certain statutory provisions,

the voters do not in reality adopt the law; they

merely bring about a situation to which the law by

its terms has been made applicable. The law is

the finished product of the Legislature, and it

only awaits the existence of the conditions to

which by its terms it is made applicable in order

to be enforced.

184 S.W. at 346. See also Trimmier v, Carlton, 296 S.W. 1070 (Tex.

1927); Spears v. City of San Antonio, 223 S.W. 166 (Tex. 1920); Graham

v. City of Greenville, 2 S.W. 742 (Tex. 1886).

Admittedly, a petition is ordinarily used only to call an

election to determine whether a proposition will effect some change,

rather than to effect the change itself. Such a procedure, though,

has received the imprimatur of the Texas Supreme Court. In Graham v.

City of Greenville, B, the supreme court held effective an

annexation accomplished by means of a petition, in spite of the fact

that the statute under which the annexation was authorized provided

that “[wlhenever a majority of the inhabitants qualified to

vote...shall vote in favor of [annexation].‘I 2 S.W. at 743.

(Emphasis added). The signing of the paper was the only mode of

election resorted to for determining the question of annexation.

Apparently, some of those who signed were under the impression that

the purpose of the petition was merely to call an election to

determine the question of annexation, not to effect it. The court, in

declaring that the statute did not provide the usual prerequisites for

an election, such as an order and notice therefor and a specification

of the time, place, and manner it was to be held, stated:

The legislature, having power to provide by

general law for the extension of the corporate

limits of cities of 10,000 inhabitants or less,

with the assent of a majority of the residents of

the territory proposed to be annexed, has

certainly the right to prescribe the manner in

which their wishes shall be ascertained. The

constitution says that in all elections by the

people the vote shall be taken by ballot, but does

not provide that the will of a limited number of

people upon any subject in which they may be

interested shall be ascertained in no other way

except by a public election. We are pointed to no

clause in that instrument which, either directly

or by implication, compels the legislature, in

case it proposes to ascertain whether the people

p. 1298

Mr. James S. McGrath - Page 5 (MW-383)

living near a city wish to be annexed to it, to

submit that question to them at a public election.

With the unlimited power over municipal

corporations possessed by the legislature, it may

provide for an extension of their limits upon

petition of a majority of persons residing within

the territory proposed to be annexed, or upon

their request ascertained in any other manner, as

well as by votes given at a public election.

2 S.W. at 743.

Nor does the fact that the 1977 amendment authorizes a minority

of real property taxpayers in the district to require the election of

directors render the amendment unconstitutional. You argue that the

legislature is without power to authorize a minority of real property

taxpayers to change the method of selection from one of appointment to

one of election. We have found no authority in support of this claim;

Washington ex rel. Seattle Title Trust Company v. Roberge. 278 U.S.

116 (1928) and progeny cited in your brief are inapposite. Such cases

are concerned with zoning ordinances and turn on property rights under

the fifth and fourteenth amendments to the U.S. Constitution.

The legislature is clearly empowered to determine that the

requisite number of signatures on a petition to call an election be

less than a majority. In discussing the number of petitioners

necessary to call a local option election, the Texas Supreme Court

stated as follows:

According to the varying views of legislative

bodies, these numbers are sometimes few and

sometimes many....The number ought to be

sufficient to give some assurance that there

exists a desire on part of a large proportion of

the voters for the change to be voted for, and

that there is a probability that, in case the

election be ordered, the proposition will carry.

Scarborough v. Eubank, 53 S.W. 573, 574 (Tex. 1899). For example, the

legislature has provided that a petition signed by 20 or a majority of

the legally qualified voters of each affected school district may

effect a consolidation election. Educ. Code 9519.232-19.234. See

also V.T.~C.S. arts. 966 (a petition signed by at least 50 electors

required for incorporation of cities and towns of certain population).

990 (a petition signed by at least 26 taxpaying voters necessary for

special election for filing vacancy in municipal offices of any

incorporated city or town), 1086 (a petition signed by at least

two-thirds of the property owners affected thereby necessary to effect

powers of towns, cities, and villages with respect to street

improvements), 6716-1 (a petition signed by a number equal to at least

10% of the qualified voters of county who voted for governor at the

last general election necessary for adoption of Optional County Road

p. 1299

Mr. James S. IicGrath- Page 6 (NW-383)

Law of 1947). 7048a (a petition signed by at least 10% of the

qualified property taxpaying voters necessary for levy for farm to

market and lateral roads); Alto. Bev. Code $251.11 (a petition signed

by a number equal to at least 35% of the qualified voters of county

who voted for governor at the last general election necessary for

local option liquor election).

Moreover. state novernments have areat flexibilitv in determinine

whether "nonlegislati~e" offices be appointed or elected. See Sailors

v. Board of Education, 387 U.S. 105 (1967); Fortson v. Morris, 385

U.S. 231 (1966). This office has already declared that the duties of

the commissioners of Jefferson County Drainage District No. 7 fall

within the ambit of the U. S. Supreme Court's description of a

"nonlegislative" local governing body. Attorney General Opinion H-855

(1976). While it is true that a minority of the real property

taxpayers is empowered, by signing a petition therefor, to compel the

county commissioners court to call an election of drainage district

commissioners, the candidates receiving the greatest number of votes

of those cast will still take office. Moreover, it is important to

realize that the minority of real property taxpayers are not empowered

to appoint or elect the commissioners, but are empowered only to

determine that the commissioners be elected.

Admittedly, a statute which provides that a petition is

sufficient to effect a change or determine a question rather than

merely to determine whether a proposition will effect a change is

unusual. Article I, section 2 of the Texas Constitution, which finds

political power inherent in the people, has been read to require a

majority to exercise that power. See Ramsey v. Dunlop, 205 S.W.2d 979

(Tex. 1947). However, the will ofthe majority is not undermined by a

statutory procedure for increasing popular control over the choice of

public offices. With respect to a delegation of legislative

authority, the courts have held that a law must be perfect, final and

decisive in all of its parts, and the discretion that is given must

relate only to its execution. McCombs v. Dallas County, i36 S.W.2d

975, 979 (Tex. Civ. App. - Dallas), writ ref'd, 140 S.W.2d 1109 (Tex.

1940). In the instant statute, a minority of real property taxpayers

is without authority to make a law or to appoint public officers, but

is authorized only to compel that an election be held for the purpose

of selecting those public officers. The statute is '!final" and the

discretion conferred does relate only to its execution.

We believe, therefore, that the 1977 amendment does not effect

either an unconstitutional delegation of legislative authority nor a

suspension of laws in contravention of the Texas Constitution, that

the amendment is most accurately characterized as a law which is made

effective as to a political subdivision only after action taken by the

people affected thereby, that it merely authorizes the people to

establish "instrumentalities or agencies upon which the law can

operate" and relates to "matters of administration and municipal

control." Ex parte Francis, 165 S.W. 147, 171 (Tex. Grim. App.

1914)(dissent), that it concerns a matter of "local regulation" for

p. 1300

Mr. James S. McGrath - Page 7 (Mw-383)

which the people may fairly be supposed to be "more competent to judge

of their needs than a central authority." Johnson v. Martin, 12

S.W.321, 323 (Tex. 1889).

Second, you ask whether the 1977 amendment to the special

legislation creating the district should be construed to mean that the

election be conducted at large or by place with each place reserved to

a municipality within the district. Section 1 of the amendment

amending section 4 of the original act creating the district sets

forth the following:

...five Commissioners shall be elected at large if

an election is ordered under that section [i.e..

Water Code 056.0641....After the expiration of the

terms of the present Commissioners, no more than

one Commissioner shall be appointed and/or elected

from any one municipality as long as five

municipalities exist within the district.

(Emphasis added).

1977 Acts, 65th Leg., ch. 614. Il. at 1520. It appears from your

brief that five municipalities do in fact presently exist within the

district. You suggest that the two provisions are hopelessly in

conflict.

It is a cardinal rule of statutory construction that, when new

provisions are introduced into a statute by amendment the amended act

and all its sections, new and old, must be construed as a harmonious

whole, all sections mutually acting upon each other. Shipley v.

Floydada Independent School District, 250 S.W. 159, 160 (Tex. Comm'n.

App. 1923). An amendment must be interpreted in such a way as to give

it effect, Independent Life Insurance Company v. Work, 77 S.W.Zd 1036

(Tex. 1934). rather than render it useless. Stolte P. Karren, 191

S.W. 600, 606 (Tex. Civ. App. - San Antonio 1916, writ ref'd). The

provision contained in the act originally creating the district

stipulated that no more than one commissioner shall be appointed from

any one municipality as long as five municipalities exist within the

district. The 1977 amendment set forth that the election, if held, be

at large. That the legislature intended the provisions to be

construed together and considered as a whole is clear; the provision

of the original act which set forth that no more than one commissioner

be appointed from any one municipality was amended to be "appointed

and/or elected" at the same time that the provision for election was

included.

It is also a rule of statutory construction that the ordinary

signification be applied to words, except words of art or words

connected with a particular subject matter. V.T.C.S. art. 10. The

phrase "at large" has been defined as "[nlot limited to any particular

place, district, person, matter, or question." Black's Law Dictionary

114 (5th ed. 1979). The only reasonable interpretation which would

give effect to both provisions is one which provides that the election

p. 1301

Mr. James S. HcGrath - Page 8 (MU-383)

be at large. i.e., that candidates run without regard to place, but

that the top five vote-getters, no two of which are from the same

municipality, would take office. In other words, if the two top

vote-getters were both from Municipality A with the next four top

voter-getters each from one other municipality within the district,

then the second highest vote-getter from Municipality A would not take

office. The first and third through sixth top vote-getters would take

office. We concede that such interpretation could have the practical

effect of creating places for each commissioner with a place reserved

for each of the five municipalities within the district. It is

reasonable to conclude that the legislature, in adopting such a

proviso, intended that the smaller municipalities be adequately

represented.

You suggest in your brief that, if both provisions of the

amendment are given effect, the principle of “one man--one vote” may

be violated. You indicate that the provision permitting no more than

one commissioner to be elected from each municipality within the

district would effectively create districts within the drainage

district to which the “one man--one vote” principle would apply.

While this proviso may have the practical effect of creating places,

it would not, however, create districts within the drainage district.

All of the qualified voters within the district are still entitled to

vote for all of the offices; voters in, say, Municipality A will vote

not just for a candidate from Municipality A, but rather they will

vote for five candidates for the five offices. And, as stated

earlier, the top five vote-getters with no two of which from the same

municipality will take office.

And finally, you ask, if the 1977 amendment does not violate

constitutional principles and an election were held, would the

electorate be restricted to “property-owning taxpayers” of the

district. We conclude that it would not.

The 1977 amendment provides that section 56.064 of the Water Code

shall apply to this district, except that, upon the presentation of a

petition of only 20 percent of the “real property taxpayers,” the

county commissioners court shall order an election of district

commissioners. Neither the special legislation creating the district

nor the Water Code itself requires that the electorate be restricted

to “real property taxpayers.” Rather, the class of persons who are

authorized to sign a petition the presentation of which would require

the county commissioners court to order an election is so restricted.

With respect to the electorate, section 56.064(a) of the Water Code

declares that “[t]he election shall be held as other elections under

this chapter.” Section 56.029 of the Water Code, setting forth the

conduct of the elections, does not indicate what qualifications will

be imposed upon voters; however, Water Code section 50.002, which

applies to general law districts in the Water Code including drainage

districts, does.

p. 1302

Mr. James S. McGrath - Page 9 Ml-383)

The qualifications of voters in district

elections are as specified in the state and

federal constitutions....

Article VI, section 2 of the Texas Constitution provides that every

person who is not subject to the disqualifications set forth in

section 1 of article VI of the constitution, is at least twenty-one

years old, is a citizen of the United States, and has lived in Texas

one year next preceding an election and the last six months within the

district or county in which the person seeks to vote be deemed a

qualifled elector. The section further provides for annual

registration requirements which are not to be considered a

qualification of an elector. See also Elec. Code 655.02, 5.05~. The

twenty-sixth amendment to the United States Constitution has the

effect of lowering the minimum age of those persons who are qualified

electors in state and federal elections to eighteen.

With respect to the provision restricting the class of persons

who are authorized to sign a petition to “real property taxpayers”

neither the United States Supreme Court nor the Texas Supreme Court

has addressed the issue whether the restrictions imposed on those

persons is constitutionally permissible. We note, however, that the

United States Supreme Court has expressly approved a state voting

scheme employed in the election of directors of a special

limited-purpose district, a water reclamation district, whereby voting

eligibility was limited to landowners and votes apportioned according

to the amount of land each voter owned. Ball v. James, 49 U.S.L.W.

4459 (1981). See also Salyer Land Co. v. Tulare Lake Basin Water

Storage District, 410 U.S. 719 (1973) [hereinafter referred to as

Salyer]; Associated Enterprises, Inc. v. Toltec Watershed Improvement

District, 410 U.S. 743 (1973) (per curiam).

It is suggested that the phrase “real property taxpayer” is

unconstitutionally vague in that it fails to precisely delimit the

class of persons eligible to sign the petition. Specifically, it is

suggested that it is unclear whether nonresidents or corporations are

permitted to sign the petition, though they would clearly not be

enfranchised to vote in the commissioners’ election. In Salyer, the

court explicitly approved a voting scheme facially limited to

“landowners” which effectively enfranchised both nonresidents and

corporations. “The franchise is extended to landowners, whether they

reside in the district or out of it, and indeed whether or not they

are natural persons who would be entitled to vote in a more

traditional political election.” 410 U.S. at 730. Relying on Salyer,

we conclude that a court would probably find permissible the

qualifications for petitioners set forth in section 56.064 of the

Water Code.

SUMMARY

The 1977 amendment to the special legislation

creating the Jefferson County Drainage District

p. 1303

Mr. James S. McGrath - Page 10 (MN-383)

No. 7 neither constitutes an impermissible

delegation of legislative authority nor effects a

suspension of law. The provisions of the

amendment detailing the election procedures should

be interpreted together, giving effect to both.

The class of persons qualified to vote in the

election of district commissioners is not

restricted to "real property taxpayers."

MARK WHITE

Attorney General of Texas

JOHN W. FAINTER, JR.

First Assistant Attorney General

RICHARD E. GRAY III

Executive Assistant Attorney General

Prepared by Jim Moellinger

Assistant Attorney General

APPROVED:

OPINION COMMITTEE

Susan L. Garrison, Chairman

Jim Moellinger

p. 1304