Is it constitutional for Texas to require water-district board members to own land in the district?

TX AG Opinion DM-0484: Can Texas require water-board members to own land?

Plain-English summary

The Waller County Criminal District Attorney, Sherry Robinson, asked the Attorney General two things about the rule that someone must own land in a water district to serve on its board. Water Code section 53.063(2) requires a fresh-water-supply district board supervisor to own land in the district, and the Brookshire-Katy Drainage District's enabling act has a parallel rule (it requires owning land "subject to taxation"). She asked whether those land-ownership requirements violate the Equal Protection Clause of the Fourteenth Amendment, and, as a preliminary matter, whether section 53.063 had been repealed.

On the repeal question, the Attorney General concluded section 53.063 has not been repealed. The confusion came from the statute book's pocket part, which listed section 53.0631 (a different, similarly numbered provision) as repealed. That listing was not a typo: section 53.0631, enacted in 1973 and amended in 1975, set out grounds for disqualifying a supervisor and was repealed in 1989, with its substance moving to Water Code section 50.026. Section 53.063 itself remained on the books.

On the constitutional question, the Attorney General concluded a court would review the land-ownership requirement under the rational-basis standard, not heightened scrutiny, because being a candidate is not a fundamental right and neither landowners nor non-landowners have ever been treated as a suspect class. But the opinion could not predict whether the requirement would survive that test, for two reasons. First, the state interest behind the requirement is unknown. The substance of section 53.063 was first enacted in 1919, the age of the enactment makes its purpose impossible to pin down, and no one proposed a purpose to the office, so the legitimacy of the state interest could not be assessed. Second, the constitutional answer depends on fact questions the opinion process cannot resolve: whether the drainage district has a sufficiently narrow, specialized purpose and whether its activities disproportionately affect landowners. If yes, the requirement likely passes muster under Salyer Land Co. v. Tulare Lake Basin Water Storage Dist. and Ball v. James, where the U.S. Supreme Court upheld landowner-only voting for narrow-purpose water districts whose costs fall on land. If no, a court would likely follow Turner v. Fouche and Quinn v. Millsap, which struck down land-ownership requirements for broader public offices, and hold the requirement unconstitutional. The opinion noted the Fifth Circuit had signaled (in Fonseca) that a similar requirement in a sister statute, section 51.072, might raise an equal-protection issue, but no court had resolved it.

Currency note

This opinion was issued in 1998. 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 Water Code provisions on fresh-water-supply and drainage districts cited here have been amended since 1998, and later cases may bear on the equal-protection analysis of land-ownership requirements for special-district boards. Confirm the current statutes and case law before relying on any specific rule.

Who this opinion affected (as of 1998)

Fresh-water-supply and drainage districts (and their boards): The opinion confirmed the land-ownership requirement was still on the books and explained that its constitutionality turned on the district's purpose and on whom its activities burden, questions a court, not the opinion process, would have to decide.

People who wanted to run for a water-district board but did not own land: The opinion left their eligibility unresolved; whether the requirement could be challenged successfully depended on fact findings about the district.

Lawyers and election officials: The opinion laid out the governing framework (rational-basis review plus the Salyer/Ball versus Turner/Quinn line) for analyzing land-ownership requirements for special-district offices.

Common questions

Was the water-district land-ownership requirement repealed?
No. The opinion concluded Water Code section 53.063 was not repealed. What was repealed (in 1989) was a different provision, section 53.0631, on grounds for disqualifying a supervisor, whose substance moved to section 50.026.

Is requiring board members to own land unconstitutional?
The opinion could not say. It concluded a court would use rational-basis review but could not determine whether the requirement serves a legitimate state purpose, because the purpose was unknown and key fact questions about the district had to be resolved first.

What facts would decide it?
According to the opinion, whether the drainage district has a sufficiently narrow, specialized purpose and whether its activities disproportionately affect landowners. Those facts determine whether the Salyer/Ball cases (upholding such rules) or the Turner/Quinn cases (striking them down) control.

Why does the district's purpose matter so much?
The opinion explained that the U.S. Supreme Court has upheld landowner-only participation only for special, limited-purpose districts whose costs fall on land in proportion to benefits; for entities with broader governmental functions, the Court has rejected land-ownership requirements.

Background and statutory framework

The Legislature created the Brookshire-Katy Drainage District in 1961 under Texas Constitution article XVI, section 59. Its enabling act states a "sole purpose" of reclaiming and draining lands in the district, found that achieving that purpose would benefit all lands and property in the district, gave the district the powers and duties of a fresh-water-supply district, and authorized it to levy and collect taxes under the general laws for such districts. The enabling act creates a five-member elected board and sets three eligibility requirements: a supervisor must be over 21, must own land subject to taxation in the district, and must reside in the area from which elected. The district is also subject to Water Code chapters 49 (general provisions for general-law districts, including authority to set charges and fees under section 49.212) and 53 (fresh-water-supply districts, with powers to conserve, transport, and distribute water, set rates, acquire sewer systems, issue bonds, and levy taxes on district property). Water Code section 53.063 sets parallel supervisor qualifications: 21 or older, owning land in the district, and residing in the district. To the extent the enabling act and section 53.063 conflict, the enabling act prevails, but both require land ownership, the only requirement questioned.

On repeal, the Attorney General found no legislation repealing section 53.063. The pocket-part listing of section 53.0631 as repealed was accurate: section 53.0631 was enacted in 1973, amended in 1975, and repealed in 1989, its substance now at section 50.026.

On equal protection, the opinion explained that the Fourteenth Amendment forbids denying any person equal protection of the laws but does not bar all classifications; a classification must rationally serve a legitimate state purpose, unless it infringes a fundamental right or creates a suspect classification, in which case it must serve a compelling interest (citing Zobel v. Williams, 457 U.S. 55 (1982); Clements v. Fashing, 457 U.S. 957 (1982); Bullock v. Carter, 405 U.S. 134 (1972)). Because candidacy is not a fundamental right and landowners are not a suspect class, rational-basis review applies. But the opinion could not identify the state interest: the substance of section 53.063 dated to 1919, its purpose was unascertainable, and none was proposed, and whether the requirement rationally relates to any purpose was a fact question (citing prior Attorney General Opinions JM-289 (1984), DM-98 (1992), H-56 (1973), M-187 (1968), and O-2911 (1940)).

The opinion canvassed the controlling U.S. Supreme Court cases. The Court upheld landowner-only voting in Salyer Land Co. v. Tulare Lake Basin Water Storage Dist., 410 U.S. 719 (1973) (quoting Williams v. Rhodes, 393 U.S. 23 (1968)), and in Ball v. James, 451 U.S. 355 (1981) (see also Associated Enters., Inc. v. Toltec Watershed Imp. Dist., 410 U.S. 743 (1973)), the Court upheld landowner-only voting for water districts with a "special limited purpose" whose activities and costs fell disproportionately on landowners. By contrast, in Turner v. Fouche, 396 U.S. 346 (1970), and Quinn v. Millsap, 491 U.S. 95 (1989), the Court struck down land-ownership requirements for a county board of education and a city-county board of freeholders, rejecting the rationales that landowners better understand community issues, have a greater stake, or that the body considers land-use issues. The Attorney General concluded a court would have to decide whether the drainage district's purpose is "sufficiently specialized and narrow" and whether its activities "bear on landowners so disproportionately" to distinguish it from the entities in Turner and Quinn, and noted the Fifth Circuit's observation in Fonseca v. Hidalgo County Water Imp. Dist. No. 2, 496 F.2d 109 (5th Cir. 1974), that a similar requirement in section 51.072 might raise an equal-protection issue, though it remained unresolved.

Citations

Statutes and constitution:

• Tex. Water Code §§ 49.001, 49.107, 49.212, 50.026, 53.001, 53.063, 53.0631 (repealed), 53.101, 53.107, 53.151, 53.171, 53.188, 51.072
• Tex. Const. art. XVI, § 59
• U.S. Const. amend. XIV, § 1
• Brookshire-Katy Drainage District enabling act (Act of May 4, 1961, 57th Leg., R.S., ch. 203)

Cases:

• Zobel v. Williams, 457 U.S. 55 (1982)
• Clements v. Fashing, 457 U.S. 957 (1982)
• Bullock v. Carter, 405 U.S. 134 (1972)
• Salyer Land Co. v. Tulare Lake Basin Water Storage Dist., 410 U.S. 719 (1973)
• Williams v. Rhodes, 393 U.S. 23 (1968)
• Turner v. Fouche, 396 U.S. 346 (1970)
• Ball v. James, 451 U.S. 355 (1981)
• Associated Enters., Inc. v. Toltec Watershed Imp. Dist., 410 U.S. 743 (1973)
• Quinn v. Millsap, 491 U.S. 95 (1989)
• Fonseca v. Hidalgo County Water Imp. Dist. No. 2, 496 F.2d 109 (5th Cir. 1974)

Prior Attorney General opinions:

• Attorney General Opinions JM-289 (1984), DM-98 (1992), H-56 (1973), M-187 (1968), O-2911 (1940)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0484
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1998/dm0484.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

November 6, 1998

The Honorable Sherry L. Robinson
Criminal District Attorney
Waller County
836 Austin Street, Suite 105
Hempstead, Texas 77445

Opinion No. DM-484

Re: Whether Water Code section 53.063(2), requiring a fresh-water-supply district supervisor to own land in the district, and a parallel provision in the Brookshire-Katy Drainage District's enabling act violate the Equal Protection Clause of the United States Constitution, and related question (RQ-983)

Dear Ms. Robinson:

Water Code section 53.063, which sets out qualifications for election to a fresh-water-supply district board of supervisors, precludes an individual who does not own land in the district from serving as a supervisor. Likewise, the Brookshire-Katy Drainage District's enabling act forbids an individual who does not own land in the district to sit on the district's governing board. We understand you to ask about the constitutionality of the land-ownership requirements in Water Code section 53.063 and in the Brookshire-Katy Drainage District's enabling act. We conclude that a court would evaluate the land-ownership requirements using the rational-basis standard. We are unable to ultimately dispose of the issue you raise, however, because we are uncertain as to the state purpose the land-ownership requirements are intended to further. Consequently, we cannot evaluate the legitimacy of the state purpose. In addition, whether the Brookshire-Katy Drainage District (the "drainage district") has a special limited purpose and whether its activities disproportionately affect landowners--which questions must be answered to determine whether the land-ownership requirements rationally further a legitimate state purpose--require the resolution of fact questions, which cannot be answered in the opinion process.

You also question whether the legislature has repealed Water Code section 53.063. We conclude that it has not.

We begin our discussion by examining the drainage district's enabling legislation and other statutes applicable to the drainage district, including Water Code section 53.063. The legislature created the drainage district in 1961 under Texas Constitution article XVI, section 59. [Footnote: See Act of May 4, 1961, 57th Leg., R.S., ch. 203, 1961 Tex. Gen. Laws 402, 402-05.] The district's enabling act establishes the district's "sole purpose": to reclaim and drain, as necessary, lands within the district. [Footnote: See id. § 2, 1961 Tex. Gen. Laws 402, 403.] The legislature explicitly found that the achievement of this purpose would benefit "all of the lands and other property included within the District" and that all lands and property likewise would benefit from "the improvements that the District will purchase, construct, or otherwise acquire." [Footnote: Id. §§ 6, 7, 1961 Tex. Gen. Laws 402, 405.] To accomplish these public benefits, the enabling act endows the district generally with all of the powers and duties of a fresh-water-supply district created under article XVI, section 59 of the Texas Constitution. [Footnote: See id. § 6, 1961 Tex. Gen. Laws 402, 405.] Moreover, the enabling act specifically authorizes the drainage district to levy and collect taxes in accordance with general laws pertaining to fresh-water-supply districts. [Footnote: Id. §§ 2, 3, 1961 Tex. Gen. Laws 402, 403, 404.]

The Brookshire-Katy Drainage District's enabling act creates a board of five elected supervisors to manage and control the drainage district [Footnote: See id. § 5, 1961 Tex. Gen. Laws 402, 405, as amended by Act of May 4, 1967, 60th Leg., R.S., ch. 220, § 1, 1967 Tex. Gen. Laws 513, 514.] and establishes three eligibility requirements:

1. A candidate for supervisor must be more than twenty-one years of age.

2. A candidate for supervisor must own land subject to taxation in the drainage district.

3. A candidate for supervisor must reside in the area of the drainage district from which he or she seeks election. [Footnote: See id. § 3, 1961 Tex. Gen. Laws 402, 404.]

In addition to its enabling act, the drainage district is subject, among other things, to Water Code chapters 49 and 53. Chapter 49, containing provisions generally applicable to all general-law districts, [Footnote: Water Code chapter 49 applies to any district created under Texas Constitution article XVI, section 59, except for certain navigation districts, port authorities, or conservation and reclamation districts. Water Code § 49.001(a)(1). The drainage district is not excepted from chapter 49.] authorizes the drainage district, among other things, to adopt "all necessary charges, fees, or rentals, in addition to taxes, for providing or making available any district facility or service." [Footnote: Id. § 49.212.] Chapter 53 pertains more particularly to fresh-water-supply districts. [Footnote: See id. § 53.001(1).] Under chapter 53, a fresh-water-supply district may "conserve, transport, and distribute fresh water from any sources for domestic and commercial purposes." [Footnote: Id. § 53.101.] Included within this broad authority are specific powers to prescribe the terms on which a district will furnish water; to fix the rate users will pay to purchase water from the district; and to regulate the distribution and use of water. [Footnote: See id. § 53.107(a).] Chapter 53 further authorizes a fresh-water-supply district to acquire and repair sanitary sewer systems using revenues from the sale of bonds or other obligations, maintenance taxes, or operating revenues. [Footnote: See id. § 53.151(a); see also id. § 49.107(a) (requiring maintenance-tax election).] Moreover, chapter 53 permits a district to issue bonds to secure indebtedness [Footnote: See id. § 53.171(a).] and, once it has done so, to "levy taxes on all property in the district, whether real, personal, or mixed." [Footnote: Id. § 53.188.]

Like the drainage district's enabling act, Water Code section 53.063 establishes qualifications for supervisors of a fresh-water-supply district:

1. He or she must be twenty-one years of age or older at the time of the election.

2. He or she must own land within the district.

3. He or she must reside in the district.

Certainly, to the extent the drainage district's enabling act sets eligibility standards that are inconsistent with those in section 53.063, the enabling act's standards prevail. [Footnote: See Act of May 4, 1961, 57th Leg., R.S., ch. 203, § 2, 1961 Tex. Gen. Laws 402, 403.] We need not resolve any inconsistencies here, though, because both section 3 of the enabling act and Water Code section 53.063(2) require a candidate for election as a supervisor to own land within the district. [Footnote: We note that the drainage district's enabling act limits ballot access to an individual who owns land "subject to taxation" in the district, while Water Code section 53.063(2) limits ballot access to any individual owning land in the district, regardless of the land's taxability. We do not need to resolve any inconsistency created by this difference in language to answer the questions you have posed.] The land-ownership requirement is the only requirement you question.

As a preliminary matter, you question whether section 53.063 has been repealed; a repeal, you suggest, would moot your primary question: whether the land-ownership requirement violates federal equal protection mandates. We are uncertain as to how this would moot your primary question because the land-ownership requirement is also in the drainage district's enabling act. Nevertheless, we will respond.

We conclude that Water Code section 53.063 has not been repealed. The drainage district's superintendent avers that the statute book's pocket part lists section 53.0631, not section 53.063, as repealed. Nevertheless, the superintendent has been unable to find any record of section 53.0631, and he therefore inquires whether the pocket part's listing of section 53.0631 is a typographical error. Certainly, where the publisher has made an error in printing a statute, we should disregard it. [Footnote: See 67 Tex. Jur. 3d Statutes § 117, at 700 (1989).] But the pocket part is not in error. We have found no legislation repealing Water Code section 53.063. Moreover, we have found that the legislature enacted section 53.0631 in 1973, [Footnote: See Act of May 24, 1973, 63d Leg., R.S., ch. 635, sec. 3, § 53.0631, 1973 Tex. Gen. Laws 1748, 1750-51.] amended it in 1975, [Footnote: See Act of May 14, 1975, 64th Leg., R.S., ch. 248, § 3, 1975 Tex. Gen. Laws 600, 602-03.] and repealed it in 1989. [Footnote: See Act of May 28, 1989, 71st Leg., R.S., ch. 328, § 12, 1989 Tex. Gen. Laws 1292, 1295.] Section 53.0631 set out several grounds for disqualifying a supervisor; [Footnote: See Act of May 24, 1973, 63d Leg., R.S., ch. 635, sec. 3, § 53.0631, 1973 Tex. Gen. Laws 1748, 1750-51.] its substance now is found in Water Code section 50.026. [Footnote: See Act of May 28, 1989, 71st Leg., R.S., ch. 328, § 1, 1989 Tex. Gen. Laws 1291, 1292-93.]

We proceed to consider your primary question. You suggest that the land-ownership requirement violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution by distinguishing among individuals who are otherwise eligible for election to the board of supervisors solely on the basis of whether the individuals own land in the district. [Footnote: See Zobel v. Williams, 457 U.S. 55, 60 (1982).] The Equal Protection Clause prohibits a state from denying "to any person within its jurisdiction the equal protection of the laws," [Footnote: U.S. Const. amend. XIV, § 1.] but it does not absolutely forbid all legislative classifications. [Footnote: See Attorney General Opinion JM-289 (1984) at 2.] Rather, a legislative classification must either rationally serve a legitimate state purpose [Footnote: See id. at 2-3.] or, if the classification infringes a fundamental right or creates an inherently suspect classification, serve a compelling state interest. [Footnote: See id. at 2.]

A court would scrutinize the land-ownership requirement you question using the rationality standard. Because candidacy is not a fundamental right, [Footnote: See Clements v. Fashing, 457 U.S. 957, 963 (1982) (Rehnquist, J.) (plurality opinion) (citing Bullock v. Carter, 405 U.S. 134, 143 (1972)).] this restriction on ballot access is not entitled to heightened scrutiny. In addition, neither landowners nor non-landowners ever have been held to be a suspect class of individuals.

We are unable to predict, however, whether a court would determine that the land-ownership requirement serves a legitimate state interest. In the first place, we are uncertain as to the state interest served by the land-ownership requirement. "In determining whether or not state law violates the Equal Protection Clause, a court must consider the facts and circumstances behind the law, the interests which the State claims to be protecting, and the interest of those who are disadvantaged by the classification." [Footnote: Salyer Land Co. v. Tulare Lake Basin Water Storage Dist., 410 U.S. 719, 725 (1973) (quoting Williams v. Rhodes, 393 U.S. 23, 30 (1968)).] We looked in the statute's history for evidence of the interests the legislature designed the statute to protect. We found that the legislature originally enacted the substance of section 53.063 in 1919. [Footnote: See Act of July 19, 1919, 36th Leg., 2d C.S., ch. 48, § 15, 1919 Tex. Gen. Laws 107, 111.] At that time, of course, some restrictions on ballot access may have been designed to exclude, on racial grounds, some people from governmental positions. [Footnote: Cf. Turner v. Fouche, 396 U.S. 346 (1970).] On the other hand, the legislature might have imposed the land-ownership requirement because it believed that landowners comprised the class that would be primarily affected by the activities of a fresh-water-supply district. In any event, the age of the enactment precludes us from ascertaining the legislature's purpose, and no purpose has been proposed to us. Moreover, whether the land-ownership requirement rationally relates to the ostensible purpose is a question requiring fact determinations, which we are not equipped to resolve in the opinion process. [Footnote: See, e.g., Attorney General Opinions DM-98 (1992) at 3; H-56 (1973) at 3; M-187 (1968) at 3; O-2911 (1940) at 2.] In the second place, a court probably could not determine the constitutionality of the classification without determining whether the drainage district's purpose is so limited, and the drainage district's activities so disproportionately affect landowners, as to justify the restriction on ballot access. This determination, too, requires fact-based analyses for its resolution, and it is not, therefore, amenable to the opinion process. [Footnote: See, e.g., Attorney General Opinions DM-98 (1992) at 3; H-56 (1973) at 3; M-187 (1968) at 3; O-2911 (1940) at 2.]

The United States Supreme Court has upheld restrictions on the franchise where the governing body to be elected oversees a district with a specialized, narrow purpose, the activities of which the Court found to disproportionately affect landowners. In Salyer Land Company v. Tulare Lake Basin Water Storage District, [Footnote: 410 U.S. 719 (1973).] for example, the Court concluded that a statute permitting only landowners to vote in water storage district general elections reasonably furthered a legitimate state purpose and did not, therefore, violate the Equal Protection Clause. [Footnote: See id. at 734-35.] Although the Court conceded that non-landowners had an interest in the water storage district's activities, the Court did not deem that interest sufficient to overcome the presumption that the statute is reasonable. [Footnote: See id. at 732.] More importantly, the Court determined that, because of the water storage district's "special limited purpose" and the fact that the district's activities disproportionately affect landowners as a group, non-landowners were not entitled to a vote in the election of the district's governing board. [Footnote: See id. at 728.] First, according to the Court, the water storage district exists primarily to acquire, store, and distribute water for farming in the Tulare Lake Basin. [Footnote: See id.] The district's "incidental" powers, such as acquiring and operating necessary works for the storage and distribution of water; generating and distributing hydroelectric power; and fixing charges for the use of the water, [Footnote: See id. at 723-24.] did not, apparently, expand the district's purpose beyond what the Court called the district's "special limited purpose." Second, the Court found that the statutory scheme precludes economically burdening a non-landowner qua district resident; rather, "[a]ll of the costs of district projects are assessed against land . . . in proportion to the benefits received." [Footnote: Id. at 729.]

Likewise, in Ball v. James [Footnote: 451 U.S. 355 (1981).] the Court upheld an Arizona statute that limited the franchise in elections for directors of an agricultural improvement and power district to landowners. [Footnote: See id. at 371 (plurality opinion); see also id. at 372 (Powell, J., concurring); accord Associated Enters., Inc. v. Toltec Watershed Imp. Dist., 410 U.S. 743, 744 (1973) (per curiam) (upholding Wyoming statute that authorizes only landowners to vote to create water district; finding Wyoming watershed district "is a governmental unit of special or limited purpose whose activities have a disproportionate effect on landowners within the district.").] The Court concluded that the land-ownership requirement reasonably relates to its statutory objectives. [Footnote: See Ball v. James, 451 U.S. at 371.] As in Salyer, the Ball decision hinges on the Court's determination that the public entity at issue, the Salt River Project Agricultural Improvement and Power District, has a "peculiarly narrow function": to store, deliver, and conserve water. [Footnote: See id. at 357.] Significantly, water is distributed according to land ownership. [Footnote: See id. at 361.] The district's sale of electricity to subsidize its water operations is, the parties stipulated, incidental to this primary function. [Footnote: See id. at 368-69.] In addition, although the district may condemn land, sell tax-exempt bonds, and levy taxes on real property, [Footnote: See id. at 360.] the district's actions, the Court said, disproportionately affect landowners. [Footnote: See id. at 366.] The district could not, for example, levy an ad valorem tax or a sales tax to which all, landowners and non-landowners alike, would be subject; [Footnote: See id. at 370.] rather, "the voting landowners are the only residents of the District whose lands are subject to liens to secure District bonds. Only these landowners are subject to the acreage-based taxing power of the District, and voting landowners are the only residents who have ever committed capital to the District through stock assessments charged by the [District]." [Footnote: Id. at 370.]

On the other hand, the United States Supreme Court has struck down as unconstitutional statutes that deem non-landowners ineligible to serve in certain offices. In Turner v. Fouche [Footnote: 396 U.S. 346 (1970).] the Court held invalid a Georgia law requiring that members of a county board of education be freeholders. The Court said, "The State may not deny to some the privilege of holding public office that it extends to others on the basis of distinctions that violate federal constitutional guarantees." [Footnote: Id. at 362-63.] While the Court often defers to lawmakers in determining whether a particular statute meets the rationality standard, it determined in Turner that "the Georgia free-holder requirement must fall even when measured by the traditional test for a denial of equal protection . . . ." [Footnote: Id. at 362. In Turner the Court considered whether a Georgia scheme for appointing members to a county board of education unconstitutionally discriminated against individuals on the basis of their race. See id. at 350. Race-based classifications generally are subject to stricter scrutiny than the rational-basis standard. See id. at 362. The Turner Court did not apply a heightened standard, nevertheless, because the scheme at issue did not even satisfy the lesser standard. See id.] The Court thus deemed insufficient Georgia's argument in support of the freeholder requirement: that because the statute did not specify a minimum real-property holding, anyone who "aspires to county school-board membership 'would be able to obtain a conveyance of the single square inch of land he would require to become a 'freeholder.'" [Footnote: Id. at 363.] In short, the Court concluded that Georgia could not rationally presume that a citizen who did not own land would be an irresponsible member of a county board of education. [Footnote: See id. at 363-64.] Additionally, the Court would not permit the state to presume that a non-landowner lacks attachment to the community and its educational values. [Footnote: See id. at 364.]

Likewise, in Quinn v. Millsap [Footnote: 491 U.S. 95 (1989).] the Court struck as violative of equal protection a Missouri law requiring an appointee to a particular office to own real property. [Footnote: See id. at 108.] The Missouri Constitution permitted the governments of the City of St. Louis and St. Louis County to reorganize if the city and county electorate approved a reorganization plan drafted by a "board of freeholders." The State of Missouri offered three rationales for the real-property requirement. [Footnote: See id. at 96.] First, the State claimed that a real-property owner knows "first[]hand . . . the value of good schools, sewer systems[,] and the other problems and amenities of urban life." [Footnote: See id. at 107 (quoting Brief for Appellees 41).] Second, the State asserted that a real-property owner "has a tangible stake in the long[-]term future" of the area in which the owner lives. [Footnote: See id. (quoting Brief for Appellees 41).] Third, the State argued that the land-ownership requirement was justified because the board of freeholders considers issues that may relate to land. [Footnote: See id. at 108.] The Quinn Court concluded, however, that its decision in Turner disposed of the first two of the proffered justifications: [Footnote: Id. at 108 (quoting Turner, 396 U.S. at 363-64).]

As to the first, the [Turner] Court explained that an ability to understand the issues concerning one's community does not depend on ownership of real property. . . . The Court in Turner also squarely rejected appellees' second argument by recognizing that persons can be attached to their community without owning real property.

Similarly, the Quinn Court concluded that Turner and its progeny disposed of the third proffered justification: "[T]he mere fact that the board of freeholders considers land-use issues cannot suffice to sustain a land-ownership requirement in this case." [Footnote: See id. at 108-09.] Furthermore, according to the Court, the effect of the board's work would not be limited to landowners, but would extend to all citizens of the city and county. [Footnote: See id. at 109.] Consequently, the Court stated, the State of Missouri could not "entirely exclude from eligibility for appointment to this board" all individuals who do not own real property. [Footnote: See id.]

We believe a court evaluating the land-ownership requirements in Water Code section 53.063(2) and the drainage district's enabling act would have to consider whether the purpose of the drainage district is "sufficiently specialized and narrow and whether its activities bear on landowners so disproportionately as to distinguish" the drainage district from those public entities whose more general governmental functions warrant application of the Turner/Quinn analysis. [Footnote: See Ball, 451 U.S. at 362. We found no cases applying the analysis enunciated in Salyer and Ball, voting rights cases, to a ballot-access situation like this. But we believe that a court evaluating the land-ownership requirement in Water Code section 53.063(2) and the district's enabling act would have to consider their applicability. In Quinn, a ballot-access case, the Court hinted that the Salyer/Ball analysis might apply in an appropriate ballot-access case. See Quinn, 491 U.S. at 105.] If a court determines that the drainage district does not serve a sufficiently narrow purpose and that the drainage district's activities affect landowners and non-landowners proportionately, we believe it would be likely to follow Turner and Quinn and conclude that the land-ownership requirements violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution because they do not rationally serve a legitimate state purpose. If, on the other hand, a court determines that the drainage district's purpose is sufficiently narrow and the district's activities disproportionately affect landowners, we believe the court would conclude, consistently with the Salyer Land Co./Ball cases, that the land-ownership requirements pass constitutional muster. We note, in this regard, that the United States Court of Appeals for the Fifth Circuit has indicated that the land-ownership requirement in Water Code section 53.063's sister statute pertaining to water control and improvement districts, Water Code section 51.072, may raise an equal-protection issue: "We are unable to say . . . that [an] assertion of the unconstitutionality of section 51.072 of the . . . Water Code requiring that a candidate for water district director be a freeholder, is insubstantial . . . ." [Footnote: Fonseca v. Hidalgo County Water Imp. Dist. No. 2, 496 F.2d 109, 112 (5th Cir. 1974).] Unfortunately for us, the Fifth Circuit did not resolve the question, and we have not found any other judicial decision considering the issue.

SUMMARY

Water Code section 53.063 has not been repealed.

If the requirements in Water Code section 53.063(2) and the enabling act for the Brookshire-Katy Drainage District prohibiting a non-landowner from holding a position on the drainage district's governing board rationally serve a legitimate state purpose, a court would likely conclude that the requirements do not violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

DAN MORALES
Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by Kymberly K. Oltrogge
Assistant Attorney General