Can a Texas water district board member also be hired and paid as the district's manager?

Texas AG Opinion DM-0012: A Water District Director May Also Serve as Its General Manager

Plain-English summary

The Duval County Attorney asked the Attorney General whether a board member of the Duval County Conservation and Reclamation District could also be hired as the district's general manager. The district had appointed one of its directors as manager at a salary of $1,500 per month.

The Attorney General concluded he could. The district was created under article XVI, section 59 of the Texas Constitution and given all the powers of a water control and improvement district, which are governed by chapter 51 of the Water Code. Section 51.083 lets a board employ a general manager, and section 51.084 specifically allows a director to be employed as general manager, with compensation fixed by the other directors, while continuing to perform his director duties. The opinion read section 51.084's reference to "the other four directors" as simply reflecting the five-member board that chapter 51 generally assumes, not a requirement that there be five directors before a director can be manager. So the rule applied to this four-member board, with pay fixed by the other three directors.

That left one proviso: section 51.084 is subject to the disqualification rule in section 50.026(a). The opinion worked through that rule and found it did not apply to this district. Section 50.026(a) reaches a qualifying district only if, among other conditions, the district includes "less than 75 percent of the incorporated area" of any city it sits within. Here the district covered the entire area of both cities it served, San Diego and Benavides, so it did not meet that condition, and section 50.026(a) did not disqualify the director. The bottom line: a board member could serve at the same time as the district's general manager.

Currency note

This opinion was issued in 1991. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. The Water Code provisions on district boards and director-managers have been amended since 1991. Verify current law before relying on any specific rule mentioned here.

Common questions

Can a water district director be paid as the district's manager?
Under this opinion, yes. Water Code section 51.084 allows a director to be employed as general manager with compensation fixed by the other directors, while still serving as a director.

Did it matter that the board had four members, not five?
No. The opinion read the statute's reference to "the other four directors" as a reflection of chapter 51's general five-member board model, not a requirement of five directors. On this four-member board, the other three directors would fix the manager's pay.

What about the disqualification rule in section 50.026(a)?
The opinion found it did not apply, because the district included the entire incorporated area of both cities it served, so it did not include "less than 75 percent" of any city's incorporated area, one of the conditions for that rule to bite.

Background and statutory framework

The Duval County Conservation and Reclamation District was created in 1949 (originally the Jim Wells-Duval Counties Conservation and Reclamation District) and limited to Duval County in 1963. Its enabling act, adopted under article XVI, section 59 of the Texas Constitution, vested it with all the powers of a water control and improvement district and incorporated the general laws by reference, with the enabling act prevailing in any conflict. Chapter 51 of the Water Code governs water control and improvement districts. Section 51.083 lets the board employ a general manager, and section 51.084 provides that, except as limited by section 50.026(a), a director may be employed as general manager with compensation fixed by the other directors while continuing to perform director duties. Although chapter 51 generally contemplates a five-member board (section 51.071), the opinion concluded section 51.084 did not depend on a particular number of directors. It then applied the section 50.026(a) disqualification test and found the district fell outside it, because the district encompassed the entire incorporated area of the cities of San Diego and Benavides rather than less than 75 percent of either.

Citations

Statutory and constitutional provisions:

• TEX. WATER CODE ANN. §§ 50.026, 51.071, 51.083, 51.084
• TEX. CONST. art. XVI, § 59

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0012
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1991/dm0012.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

March 27, 1991

Honorable Abelardo Garza
Duval County Attorney
Duval County Courthouse
P. O. Drawer M
San Diego, Texas 78384

Opinion No. DM-12

Re: Whether a board member of a conservation and reclamation district may serve simultaneously as the district's manager (RQ-2192)

Dear Mr. Garza:

You have requested our opinion as to whether a board member of a conservation and reclamation district may serve simultaneously as the district's manager. You state that an individual board member of the Duval County Conservation and Reclamation District has been appointed as manager of the district at a salary of $1,500.00 per month.

The district was created in 1949 as the Jim Wells-Duval Counties Conservation and Reclamation District. Acts 1949, 51st Leg., ch. 398, at 737. In 1963, the district's boundaries were changed so as to be limited to Duval County. Acts 1963, 58th Leg., ch. 452, at 1164. Sections 1, 2 and 3 of the enabling legislation now provide, in pertinent part:

Under and pursuant to the provisions of Article 16, Section 59, of the Constitution of Texas, there is hereby created within the State of Texas . . . a conservation and reclamation district to be known as the Duval County Conservation and Reclamation District . . . consisting of that part of the State of Texas which is included within the boundaries of Duval County, exclusive of that part of Duval County comprising the Freer Water Control and Improvement District, of Duval County.

The District shall have and exercise, and is hereby vested with all of the rights, powers, privileges and duties conferred and imposed by the General Laws of this State now in force or hereafter enacted, applicable to water control and improvement districts created under authority of Section 59, Article 16 of the Constitution, but to the extent that the provisions of any such General Laws may be in conflict or inconsistent with the provisions of this Act, the provisions of this Act shall prevail. All such General Laws are hereby incorporated by reference with the same effect as if incorporated in full in this Act.

The management and control of the District is hereby vested in a board of directors which shall have all the powers and authority conferred and imposed upon boards of directors of Water Control and Improvement Districts . . . . The board of directors shall be composed of four (4) members who shall have the same qualifications as directors of Water Control and Improvement Districts. (Emphasis added.)

One of the "powers" conferred on a board of directors of a water control and improvement district is the power to employ a general manager. Chapter 51 of the Water Code is applicable to water control and improvement districts. Section 51.083 thereof declares:

The board may employ a general manager and give him full authority in the management and operation of the affairs of the district subject only to the orders of the board.

Section 51.084 then states:

Except as provided in Section 50.026(a) of this code, a director may be employed as general manager with compensation fixed by the other four directors. When so employed, he shall continue to perform the duties of a director.

Clearly, section 51.083 is applicable to the Duval County Conservation and Reclamation District, since the employment of a general manager is one of the "powers . . . conferred . . . upon boards and directors of Water Control and Improvement Districts." The question then becomes whether section 51.084 is also applicable to the board, since that provision assumes that there are five directors rather than four.

All of chapter 51 of the Water Code, which governs water control and improvement districts, contemplates a five-member board of directors. Water Code § 51.071. Nevertheless, the enabling legislation for the Duval County Conservation and Reclamation District directs that the board of directors shall have "all the powers and authority conferred upon boards of directors of Water Control and Improvement Districts." Furthermore, it also provides that the "General Laws are . . . incorporated by reference." As we have indicated, the enabling legislation provides that, in the event of conflict with the general laws, the enabling legislation prevails. See generally Acts 1925, 39th Leg., ch. 25, at 86 (adopting substance of chapter 51).

We do not believe that there is any necessary conflict between the provision of the enabling legislation for four directors, and the authority of the board to employ a director as general manager under section 51.084. The latter is not dependent for its meaning upon any particular number of directors. It simply declares that a director may be employed as general manager, and his compensation fixed by the other directors. In our opinion, the reference in section 51.084 to the "other four directors" is simply a reflection of the fact that chapter 51 contemplates a five-member board, not a reflection of legislative intent that five directors are necessary to permit a director to be general manager.

Since we have concluded that section 51.084 applies to the Duval County Conservation and Reclamation District, we must now determine the applicability of the proviso to section 51.084, i.e., section 50.026(a) of the Water Code.

Section 50.026 provides, in part:

(a) A person is disqualified from serving as a member of a governing board of a district which was created under this title or by special act of the legislature, which is providing or proposing to provide, as the district's principal function, potable water, sewer, drainage, and flood control or protection facilities or services, or any of these facilities or services to household, commercial, or industrial users, other than agricultural or irrigation users; and which district includes less than all the territory in at least one county and which, if located within the corporate area of a city or cities, includes within its boundaries less than 75 percent of the incorporated area of the city or cities if:

. . . .

(2) he is an employee of any developer of property in the district, or any director, manager, engineer, or attorney for the district.

. . . .

(4) he is serving as an attorney, consultant, engineer, manager, architect, or in some other professional capacity for the district or a developer of property in the district in connection with the district or property located in the district. (Emphasis added.)

You indicate that the principal function of the district "is the provision of potable water, sewer, drainage, flood control, and protection services, [. . . and that it] also serves household, commercial, industrial, or agricultural and irrigation users." You also state that "the District includes the entire Cities of San Diego and Benavides. The Duval County Conservation and Reclamation District also provides services to unincorporated cities of Realitos, Conception, and Ramirez."

As indicated in the district's enabling legislation, the Duval County Conservation and Reclamation District includes "less than all the territory in at least one county," which is one of the stipulations of section 50.026(a). The remaining condition necessary for a district to fall within the coverage of subsection (a) of section 50.026 is that the district, "if located within the corporate area of a city or cities," include within its boundaries less than 75 percent of the incorporated area of the city or cities. The district is in fact located within the area of two incorporated cities, San Diego and Benavides, and the district encompasses the entire area of both cities. Therefore, the district does not "include within its boundaries less than 75 percent of the incorporated area of the city or cities." (Emphasis added.) As a result, not all conditions of subsection (a) of section 50.026 are satisfied by the Duval County Conservation and Reclamation District, and thus, that section is not applicable to the district.

We conclude that, since section 50.026(a) of the Water Code is not in this case applicable to the district, there is no impediment to a director being simultaneously employed as the district's general manager, "with compensation fixed by the other [three] directors." Water Code § 51.084. Accordingly, in the situation you pose, a board member of the Duval County Conservation and Reclamation District may serve simultaneously as the district's manager.

SUMMARY

A board member of the Duval County Conservation and Reclamation District may serve simultaneously as the district's manager, if his compensation is fixed by the remaining directors.

DAN MORALES
Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY (Ret.)
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

SUSAN GARRISON
Acting Chairman, Opinion Committee

Prepared by Rick Gilpin
Assistant Attorney General