Who runs the West Brazoria County Drainage District if the board election never happened?

Plain-English summary

The chairman of the Texas House Committee on Redistricting asked who legally runs the West Brazoria County Drainage District, a special district created in 1969 under the conservation-and-reclamation provision of the Texas Constitution. When the district was set up in 1969, the law made the Brazoria County commissioners court its governing body. In 1981 the Legislature amended the law to switch to a five-member board elected from single-member districts for staggered two-year terms. The 1981 law told the commissioners court to adopt an order, within 90 days, setting the boundaries and numbers for the single-member districts, and to call and hold an election on the first Saturday in April 1982 to elect the five board members. The commissioners court never did either one. So the question was: with no election ever held, who is the district's governing body now?

The Attorney General concluded the commissioners court is still it. The 1981 statute said that the commissioners court serving as the governing board on the effective date would continue in office and exercise the board's powers and duties "until the first elected board members have qualified for office." Because no single-member districts were drawn and no election was held, no elected board members ever qualified, so the commissioners court has continued as the governing board since 1981. The opinion read a small ambiguity in the statute, which referred both to "the commissioners court serving as the governing board . . . on the effective date" and to "[t]he persons serving on the board of directors . . . on the effective date," and decided the Legislature meant the offices of the individual commissioners, not the specific people who happened to hold those positions on August 14, 1981. In other words, the present Brazoria County commissioners court, as it is currently composed, makes up the district's board.

The chairman also asked whether that board could set a district tax rate and put it to the voters, given that back in 1969 the electorate had approved creating the district but voted down all taxing authority. The opinion said yes. Section 5 of the 1981 law lets the governing board levy a tax of up to 10 cents per $100 of taxable property value, but only if a majority of voters approve it at an election called for that purpose. Nothing in the statute bars the board from setting a rate and calling a fresh election just because an earlier election rejected the tax. So the commissioners court, as the current board, may set a tax rate and call an election to seek approval.

Finally, the chairman asked whether the board could establish single-member districts without new legislation. The opinion explained that the board could not act under section 6(a), because that provision was tied specifically to the April 1982 election that never happened. But section 2 of the law independently requires the board, after each decennial census, to divide the district into five single-member districts that are compact, contiguous, and as nearly equal in population as practicable, and to hold an April election to fill the seats. Since a new decennial census, the 1990 census, had been completed and its results announced since the 1981 law passed, the opinion concluded it was reasonable to require whatever board exists to comply anew. The board was therefore not just permitted but commanded to divide the district into five single-member districts based on the 1990 census and to call an election for the first Saturday in April 1993 to fill the directorships.

Currency note

This opinion was issued in 1992. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The opinion's instructions were tied to the 1990 census and an April 1993 election, both long past, and the governing special law may have been amended since 1992, so this page describes the district's situation as the AG saw it in 1992 and is not a guide to the district's present governance.

Background and statutory framework

The West Brazoria County Drainage District was created under article XVI, section 59 of the Texas Constitution by a special law enacted in 1969. House Bill 273, Acts 1969, 61st Leg., ch. 48, at 139-44, designated the commissioners court of Brazoria County "as the governing body of [the] district." In 1981 the statute was amended to provide for "a board of directors composed of five members who shall be elected from single-member districts to serve for staggered terms of two years and until their successors are elected and have qualified for office." S.B. 21, Acts 1981, 67th Leg., 1st C.S., ch. 6, at 58-63. The 1981 legislation directed the existing governing board, the commissioners court, "[w]ithin 90 days after the effective date of this Act," to "adopt an order establishing the boundaries and numbers for single-member board districts," id. § 6(a), at 62, and to "call and hold an election on the first Saturday in April 1982, to elect five members to the board." The commissioners court never took any action to establish single-member districts or hold the election.

On the first question, Senate Bill 21 provided that "[t]he commissioners court serving as the governing board of the West Brazoria County Drainage District on the effective date of this Act shall continue in office and shall exercise the powers and duties and perform the functions of the board of directors of the district until the first elected board members have qualified for office," and similarly that "[t]he persons serving on the board of directors . . . on the effective date of this Act shall continue in office . . . until the first elected board members have qualified for office." Id. §§ 5, 6(b), at 62. Because section 6 was never implemented, neither an order establishing single-member districts nor an order calling an election having issued, the opinion concluded the commissioners court serving as the governing board has continued to function as the governing board since 1981. The statute's dual references created some ambiguity, but the opinion believed the Legislature intended to constitute the individual commissioner positions, rather than the specific persons holding those positions on August 14, 1981, as the holdover board. Thus the present commissioners court of Brazoria County, not the commissioners court as it existed on August 14, 1981, makes up the current board.

On the tax question, section 5 authorizes the governing board to "levy and cause to be collected a tax not exceeding 10 cents on each $100 valuation of taxable property subject to district taxation within the district," but such a tax may not be levied or assessed "until authorized at an election called for such purpose by said board, in the manner provided by Section 4, hereof, at which a majority of the qualified electors . . . vote in favor of the levy and collection of such tax." Id. § 5, at 59. The 1969 electorate had voted to create the district but turned down all taxing authority. The opinion found nothing in the statute prohibiting the governing board from setting a tax rate and calling an election merely because a prior election disapproved the tax, and concluded the commissioners court, as the current governing board, may establish a tax rate and call an election for its approval.

On the redistricting question, the opinion noted the board could not act under section 6(a), which sets the election for the first Saturday in April 1982. But section 2 provides that "[a]fter each decennial census, the board shall divide the area of the district into five single-member districts that are compact, contiguous, and as nearly equal in population as is practicable," and that "[a]n election shall be held in the district on the first Saturday in April of each year to elect the appropriate number of members to the board." Id. § 2(c), (d), at 58. Ordinarily the office might have construed subsections 2(c) and 2(d) in harmony with subsection 6(a) to apply only to the April 1982 election, but since Senate Bill 21 was enacted a new decennial census had been held and its results announced, so it seemed reasonable to require whatever board exists to comply anew with subsections 2(c) and 2(d). Because the current board is the Brazoria County commissioners court, the opinion concluded the board is in a position to, and is commanded to, comply by dividing the area into five single-member districts based on the 1990 census and calling an election for the first Saturday in April 1993 to fill the directorships.

Common questions

Does a board election that never happened mean a special district has no government?
Not under this opinion. The Attorney General concluded that because the statute kept the commissioners court in place "until the first elected board members have qualified," and none ever did, the Brazoria County commissioners court remained the drainage district's governing board.

Is the "holdover" board the people who held office in 1981, or whoever holds office now?
Whoever holds the office now. The opinion read the 1981 law to keep the commissioner positions, not the specific 1981 individuals, as the board, so the present commissioners court makes up the district's board.

Can the board try a tax again after voters rejected one before?
Yes. The opinion found nothing barring the board from setting a tax rate and calling a new approval election just because a prior election (in 1969) had turned down taxing authority. The tax still cannot take effect without voter approval.

Could the board draw single-member districts without new legislation?
Yes, under a different part of the statute. The opinion said the April 1982 election provision was spent, but section 2 separately requires redistricting after each decennial census, so the board was required to draw five single-member districts based on the 1990 census and call an April 1993 election.

Citations

• Tex. Const. art. XVI, § 59
• House Bill 273, Acts 1969, 61st Leg., ch. 48, at 139-44
• S.B. 21, Acts 1981, 67th Leg., 1st C.S., ch. 6, §§ 2(c), (d), 4, 5, 6(a), (b), at 58-63

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0140
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1992/dm0140.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

DAN MORALES
ATTORNEY GENERAL

July 13, 1992

Honorable D. R. "Tom" Uher
Chairman
Committee on Redistricting
Texas House of Representatives
P. O. Box 2910
Austin, Texas 78768-2910

Opinion No. DM-140

Re: The status of the West Brazoria County Drainage District, and related questions (RQ-326)

Dear Representative Uher:

You have requested our opinion regarding the current status of the West Brazoria County Drainage District. That district was created pursuant to article XVI, section 59 of the Texas Constitution by a special law enacted in 1969. House Bill 273, Acts 1969, 61st Leg., ch. 48, at 139-44, designated the commissioners court of Brazoria County "as the governing body of [the] district." In 1981, the statute was amended to provide for "a board of directors composed of five members who shall be elected from single-member districts to serve for staggered terms of two years and until their successors are elected and have qualified for office." S.B. 21, Acts 1981, 67th Leg., 1st C.S., ch. 6, at 58-63. The 1981 legislation directed the existing governing board, the commissioners court, "[w]ithin 90 days after the effective date of this Act," to "adopt an order establishing the boundaries and numbers for single-member board districts." Id. § 6(a), at 62. The board was also enjoined to "call and hold an election on the first Saturday in April 1982, to elect five members to the board." Id. You indicate that the commissioners court has never taken any action to implement the requirement of section 6 for establishing single-member districts or for holding an election. You ask whether the commissioners court is at present "the legally authorized body to act for said drainage district."

Senate Bill 21 provides, in pertinent part:

  The commissioners court serving as the governing board of the West Brazoria County Drainage District on the effective date of this Act shall continue in office and shall exercise the powers and duties and perform the functions of the board of directors of the district until the first elected board members have qualified for office.

  . . . .

  The persons serving on the board of directors of the West Brazoria County Drainage District on the effective date of this Act shall continue in office and shall exercise the powers and duties and perform the functions of board members until the first elected board members have qualified for office. . . .

Id. §§ 5, 6(b), at 62. Since section 6 of the 1981 legislation was never implemented, in that neither an order establishing single-member districts nor an order calling for an election to select board members was ever issued, the statute makes clear that "the commissioners court serving as the governing board" of the district has continued to function as the governing board since 1981. Although the statute permits some ambiguity, since it speaks of "the commissioners court serving as the governing board . . . on the effective date [of] this Act," and of "[t]he persons serving on the board of directors . . . on the effective date of this Act," we believe that it was the intent of the legislature to constitute the individual commissioner positions, rather than the specific persons who held those positions on August 14, 1981, as the holdover board for the district. Thus, it is the present commissioners court of Brazoria County, rather than the commissioners court as it existed on August 14, 1981, that makes up the current board of the district.

You also ask whether the commissioners court may establish a tax rate for the district and call an election for its approval. You indicate that in 1969 the affected electorate "voted for the creation of said drainage district but turned down all taxing authority."

Section 5 authorizes the governing board to "levy and cause to be collected a tax not exceeding 10 cents on each $100 valuation of taxable property subject to district taxation within the district." Such tax may not be levied or assessed, however, "until authorized at an election called for such purpose by said board, in the manner provided by Section 4, hereof, at which a majority of the qualified electors . . . vote in favor of the levy and collection of such tax." Id. § 5, at 59. Nothing in the statute prohibits the governing board from setting a tax rate and calling an election merely because a prior election has resulted in disapproval of the tax. We conclude, therefore, that the commissioners court, as the current governing board of the district, may establish a tax rate and call an election for its approval.

Your last question is whether the commissioners court may "establish single member districts for the election of drainage commissioners without further legislation being passed." Certainly, the commissioners court, acting as the current board, may not do so pursuant to section 6(a) of Senate Bill 21, since that provision sets the election for the first Saturday in April 1982. Section 2 of Senate Bill 21, however, provides, in pertinent part:

  After each decennial census, the board shall divide the area of the district into five single-member districts that are compact, contiguous, and as nearly equal in population as is practicable. . . .

  An election shall be held in the district on the first Saturday in April of each year to elect the appropriate number of members to the board.

Id. § 2(c), (d), at 58. Ordinarily, we might be constrained to construe subsections 2(c) and 2(d) in harmony with subsection 6(a) to infer that the redistricting and election provisions of the statute were intended to be applicable only to the election contemplated for April 1982. Since the enactment of Senate Bill 21, however, a new "decennial census" has been held, and the results thereof announced, so that it seems reasonable to require whatever "board" exists to comply anew with the requirements of subsections 2(c) and 2(d). As we have stated, the current "board" is the commissioners court of Brazoria County. Accordingly, the board is in a position to, and, in our opinion, is commanded, to comply with those requirements by dividing the area into "five single-member districts" based on the 1990 census, and calling an election for the first Saturday in April 1993, to fill the directorships from those districts.

                               SUMMARY

      The commissioners court of Brazoria County at present constitutes the governing board of the West Brazoria County Drainage District. As such, it may set a tax rate and call an election to seek voter approval therefor. The commissioners court, acting as the board, should establish single-member districts based on the 1990 census, and call an election for the first Saturday in April 1993.

                                            DAN MORALES
                                            Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Rick Gilpin
Assistant Attorney General