Does a water district's resign-to-run rule apply to Edwards Aquifer Authority board members?

Texas AG Opinion JC-0006: Resign-to-Run Applies to Edwards Aquifer Authority Directors

Plain-English summary

The Edwards Aquifer Authority is a special water district created by a 1993 Texas law, with its directors elected after a 1995 amendment. The Water Code has a "resign-to-run" rule in section 49.072: a person serving as a director of a district who becomes a candidate for another office is no longer qualified to serve as director. A state senator asked whether that rule reached the Authority's board, after an elected director filed in January 1998 to run for state representative, lost the March primary, and kept sitting on the board.

The Attorney General concluded the rule applies. Chapter 49 of the Water Code governs all general and special law districts unless a provision conflicts with another Water Code chapter or with the act that created the particular district. The Edwards Aquifer Authority was created under article XVI, section 59 of the Texas Constitution, so it falls within chapter 49, and the opinion found nothing in the Water Code or the Authority's enabling act that conflicts with the resign-to-run rule. The Authority's own statute covers electing directors and filling vacancies but says nothing about running for another office. So section 49.072 governs. When the director filed for state representative, he was a "candidate" under Election Code section 251.001, which made him disqualified and created a vacancy on the board, to be filled by board appointment under section 49.105. There is a second piece, though, that explains why he was still on the board. Article XVI, section 17 of the Texas Constitution says officers continue to perform the duties of their offices until their successors are duly qualified. So the disqualified director keeps acting as a "holdover" until a replacement is appointed and qualifies. Losing the primary did not change that; the holdover continues until the board fills the seat.

Currency note

This opinion was issued in 1999. 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 and the Edwards Aquifer Authority's enabling act may have changed since 1999. Verify current law before relying on any specific rule mentioned here.

Common questions

Does the resign-to-run rule cover Edwards Aquifer Authority directors?
Yes. The opinion concluded Water Code section 49.072 applies to the Authority's directors, because chapter 49 governs the Authority and nothing in the Water Code or the Authority's enabling act conflicts with the rule.

What happens when a director files to run for another office?
The director becomes a "candidate" under Election Code section 251.001 and is immediately disqualified from serving, which vacates the seat. Under Water Code section 49.105, the board fills the vacancy by appointment for the unexpired term.

Why was the director still serving after losing his primary?
Because of article XVI, section 17 of the Texas Constitution, which keeps officers performing their duties until a successor is duly qualified. The disqualified director served as a holdover until the board appointed and qualified a replacement, and losing the primary did not end the holdover.

Did it matter that the director lost the election?
No. The disqualification was triggered by becoming a candidate, not by the outcome. Whether he won or lost, his seat was vacant, and he continued only as a constitutional holdover until a successor qualified.

Background and statutory framework

Water Code section 49.072 provides that "[a] person serving as director of a district who becomes a candidate for another office is no longer qualified to serve as director," with "candidate" defined by reference to Election Code section 251.001. Chapter 49 applies to all general and special law districts "to the extent that [its provisions] do not directly conflict with a provision in any other chapter of this code or any Act creating or affecting a special law district," with the more specific provision prevailing in a conflict (section 49.002; see Loyd v. Eco Resources, Inc., 956 S.W.2d 110, 122 (Tex. App.-Houston [14th Dist.] 1997, no pet.), applying chapter 49's sovereign-immunity provision to a municipal utility district). The districts subject to chapter 49 include any district or authority created under article XVI, section 59 of the Texas Constitution (section 49.001(a)(1)). Because the Edwards Aquifer Authority was created under that constitutional provision, and the opinion found no conflicting provision in the Water Code or the Authority's enabling act (which addresses electing directors and filling vacancies but not candidacy for other office), section 49.072 governs its directors.

A person who files an application for a place on a ballot is a candidate under Election Code section 251.001, so when the director filed for state representative he became disqualified and vacated his seat (citing prior opinion DM-493 (1998) and Letter Opinion LO-98-29 on the vacancy created by disqualification). Section 49.105(a) directs that board vacancies be filled for the unexpired term by board appointment. Finally, article XVI, section 17 of the Texas Constitution provides that "[a]ll officers within this State shall continue to perform the duties of their offices until their successors shall be duly qualified," so the disqualified director continues as a holdover until a successor is appointed and qualifies.

Citations

Statutory and constitutional provisions:

• TEX. WATER CODE ANN. §§ 49.001(a)(1), 49.002, 49.072, 49.105(a) (Vernon Supp. 1999)
• TEX. ELECTION CODE ANN. § 251.001
• TEX. CONST. art. XVI, §§ 17, 59

Cases:

• Loyd v. Eco Resources, Inc., 956 S.W.2d 110, 122 (Tex. App.-Houston [14th Dist.] 1997, no pet.)

Prior Attorney General opinions cited: DM-493 (1998); LO-98-29.

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0006
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1999/jc0006.pdf

Original opinion text

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

February 26, 1999

The Honorable Jeff Wentworth
Chair, Committee on Nominations
Texas State Senate
P.O. Box 12068
Austin, Texas 78711

Opinion No. JC-0006

Re: Whether the resign-to-run provision in Water Code section 49.072 applies to a member of the Board of Directors of the Edwards Aquifer Authority (RQ-1205)

Dear Senator Wentworth:

You ask whether the resign-to-run provision in chapter 49 of the Water Code applies to the directors of the Edwards Aquifer Authority ("Authority"). The resign-to-run provision does apply to directors of the Authority, but a director who is disqualified under that provision will continue to perform the duties of his office pursuant to article XVI, section 17 of the Texas Constitution until his successor qualifies for office.

The Authority was created by a special law adopted in 1993.[1] Initially, its directors were appointed, but in 1995 the law was amended to require the election of directors.[2] You inform us that on January 2, 1998, an elected member of the Board of Directors ("board") of the Authority filed as a candidate to run for the office of state representative. He was defeated in the primary election in March 1998 and has remained on the board of the Authority since that time. The board is concerned that section 49.072 of the Water Code prevents this director from continuing to serve. This provision reads as follows:

(a) A person serving as director of a district who becomes a candidate for another office is no longer qualified to serve as director.

(b) In this section, "candidate" has the meaning assigned by Section 251.001, Election Code.

TEX. WATER CODE ANN. § 49.072 (Vernon Supp. 1999). See Tex. Att'y Gen. Op. No. DM-493 (1998) (discussing constitutionality of Water Code section 49.072 under article XV, section 7 of the Texas Constitution).

Chapter 49 "applies to all general and special law districts to the extent that [its provisions] do not directly conflict with a provision in any other chapter of this code or any Act creating or affecting a special law district." TEX. WATER CODE ANN. § 49.002 (Vernon Supp. 1999). See Loyd v. Eco Resources, Inc., 956 S.W.2d 110, 122 (Tex. App.-Houston [14th Dist.] 1997, no pet.) (section 49.066(a) of Water Code chapter 49 on sovereign immunity applies to MUD). The specific provisions in the other chapter or act prevail in the event of a conflict. TEX. WATER CODE ANN. § 49.002 (Vernon Supp. 1999). The districts subject to chapter 49 include "any district or authority created by authority of . . . Section 59, Article XVI, Texas Constitution, regardless of how created." Id. § 49.001(a)(1). The Authority, created pursuant to article XVI, section 59 of the Texas Constitution,[3] is subject to section 49.072 to the extent that this provision does not directly conflict with another provision in the Water Code or in the act creating the Authority.

We have found no other provisions in the Water Code that conflict with section 49.072, nor do we find any in the special law establishing the Edwards Aquifer Authority. The act governing the Authority includes provisions on electing directors and filling vacancies, but no provision addresses candidacy for another office. Accordingly, section 49.072 applies to the directors of the Authority.

A person who files an application for a place on a ballot is a candidate within section 251.001 of the Election Code and is therefore a candidate for purposes of section 49.072 of the Water Code. When the director of the Authority filed as a candidate for the office of state representative, he became disqualified to serve on the board and vacated his position on the board. See Tex. Att'y Gen. Op. No. DM-493 (1998) (discussing effect of Water Code § 49.072); Tex. Att'y Gen. LO-98-29, at 5 (vacancy created upon disqualification). Section 49.105 provides that "all vacancies on the board . . . shall be filled for the unexpired term by appointment of the board." TEX. WATER CODE ANN. § 49.105(a) (Vernon Supp. 1999).

You have informed us that the disqualified director has remained on the board since his defeat in the primary election in March 1998. Article XVI, section 17 of the Texas Constitution provides that "[a]ll officers within this State shall continue to perform the duties of their offices until their successors shall be duly qualified." TEX. CONST. art. XVI, § 17. Pursuant to this provision, the director in question will continue to perform the duties of his office until his successor has been appointed and qualifies for office. See Tex. Att'y Gen. LO-98-29, at 5-6.

Footnote 1: Act of May 30, 1993, 73d Leg., R.S., ch. 626, 1993 Tex. Gen. Laws 2350.

Footnote 2: Act of May 29, 1995, 74th Leg., R.S., ch. 261, 1995 Tex. Gen. Laws 2505.

Footnote 3: Act of May 30, 1993, 73d Leg., R.S., ch. 626, § 1.02, 1993 Tex. Gen. Laws 2350, 2351.

SUMMARY

A director of the Edwards Aquifer Authority who filed as a candidate to run for another office is subject to section 49.072 of the Water Code, providing that a director who becomes a candidate for another office is no longer qualified to serve as director. His disqualification as director creates a vacancy to be filled by the board, but the disqualified director will continue to perform the duties of his office pursuant to article XVI, section 17 of the Texas Constitution until his successor has qualified for office.

JOHN CORNYN
Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Prepared by Susan L. Garrison
Assistant Attorney General