Can a county attorney's employee serve on a water district board if the attorney represents that district?

Plain-English summary

The Jim Hogg County Attorney, Rodolfo Gutierrez, asked whether section 49.052 of the Water Code disqualified an employee of his office from serving on the board of a water control and improvement district in the same county. The employee was an investigator who had worked for the county attorney's office before Gutierrez took office and was paid by the county under a budget the county attorney requested. The twist was that Gutierrez, in his private law practice, represented the water district on a retainer basis. The employee was not involved in that private practice, but his name was on the ballot for the water district board, and the county attorney wanted to know whether, if elected and still employed by the office, the employee would be disqualified.

The AG started with chapter 49 of the Water Code, which applies generally to water districts, and with section 49.052, which disqualifies a person from serving on certain water district boards if that person is an employee of a developer of property in the district or of any director, manager, engineer, attorney, or other person providing professional services to the district. Reading the statute by its plain language to find the Legislature's intent, the AG focused on the phrase any attorney. The word any carries the full force of every. The statute draws no distinction between an attorney who provides professional services only to a district and an attorney who works in dual roles, only one of which involves serving the district. Because the employee worked for the county attorney, and the county attorney provided legal services to the district, the AG concluded a court would likely construe section 49.052(a)(2) to disqualify the employee, even though the employee himself served the attorney in a role that did not involve providing legal services to the district.

Currency note

This opinion was issued in 2016. 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.

What the opinion meant for those who asked

The Jim Hogg County Attorney (as the opinion described it): The opinion answered that a court would likely read section 49.052(a)(2) to disqualify an employee of the county attorney's office from the water district board, because the county attorney provided professional legal services to the district, regardless of whether the employee personally did any work for the district.

The county-paid employee who ran for the board (as the opinion described the situation): The opinion treated the employee as covered by the disqualification because of his employment relationship with an attorney who served the district, not because of anything the employee did for the district. The AG noted the candidate had been unsuccessful in the May 2016 election but answered the question because the situation was likely to recur.

The water control and improvement district (as the opinion described it): The opinion described section 49.052 as a board-eligibility bar designed to keep certain conflicted persons off the board, here reaching an employee of the district's outside attorney.

Common questions

Who does section 49.052 keep off a water district board?
As the opinion described it, the statute disqualifies a person who is an employee of a developer of property in the district or of any director, manager, engineer, attorney, or other person providing professional services to the district.

The employee didn't do legal work for the district, so why is he disqualified?
The opinion said the statute draws no distinction between an attorney who serves only the district and one in dual roles, and reaches an employee of any attorney providing professional services to the district. So the employee's own duties did not matter; the employment relationship with the district's attorney did.

Does it matter that the employee was paid by the county, not the attorney's private practice?
Under the opinion's reading, the disqualifying fact was that the person was an employee of the county attorney, who provided legal services to the district. The opinion treated the county attorney as the attorney providing professional services and the investigator as that attorney's employee.

Is this a final ruling that the employee cannot serve?
No. AG opinions are persuasive authority, not binding law. The opinion predicted how a court would likely construe the statute; only a court could finally decide.

Background and statutory framework

Chapter 49 of the Water Code applies generally to all general and special law water districts, subject to specified exceptions (Tex. Water Code §§ 49.001-.512, 49.052(f)). Section 49.052 disqualifies a person from serving as a member of certain water district boards if that person is an employee of any developer of property in the district or any director, manager, engineer, attorney, or other person providing professional services to the district (Tex. Water Code § 49.052(a)(2)). Courts construe statutes to ascertain the Legislature's intent, and the best guide is usually the plain language; the word any is given the full force of every (Tex. Adjutant Gen.'s Office v. Ngakoue, 408 S.W.3d 350, 354 (Tex. 2013); Beck v. Craven, 360 S.W.2d 827, 830-31 (Tex. Civ. App.—Houston [1st Dist.] 1962, no writ); City of Austin v. Salyer, 441 S.W.2d 862, 865 (Tex. Civ. App.—Austin 1969, writ ref'd n.r.e.)).

Citations

Statutory provisions:

• Tex. Water Code §§ 49.001-.512
• Tex. Water Code §§ 49.052, 49.052(a)(2), 49.052(f)

Cases:

• Tex. Adjutant Gen.'s Office v. Ngakoue, 408 S.W.3d 350 (Tex. 2013)
• Beck v. Craven, 360 S.W.2d 827 (Tex. Civ. App.—Houston [1st Dist.] 1962, no writ)
• City of Austin v. Salyer, 441 S.W.2d 862 (Tex. Civ. App.—Austin 1969, writ ref'd n.r.e.)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0110
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2016/kp0110.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

August 15, 2016

The Honorable Rodolfo V. Gutierrez Opinion No. KP-0110
Jim Hogg County Attorney
Post Office Box 847 Re: Whether section 49.052 of the Water Code
Hebbronville, Texas 78361 disqualifies an employee of the county
attorney's office from serving as a member of
the board of a water control and improvement
district in the same county, when the county
attorney also provides professional legal
services to the water district (RQ-0102-KP)

Dear Mr. Gutierrez:

    You ask whether section 49.052 of the Water Code disqualifies an employee of the county attorney's office from serving as a member of the board of a water control and improvement district in the same county, when the individual serving as county attorney provides professional legal services to the water district in a private capacity. [1] You tell us the employee is an investigator with the Jim Hogg County Attorney's office and was so employed prior to your taking office as county attorney. See Request Letter at 2. You also tell us that the employee is paid by the county, pursuant to a budget requested by you. See id. You tell us further that the employee is not employed by you "in any matters pertaining to [your] private law practice, which includes representation of the Water District on a retainer basis." Id. You state that the employee's name will be on the ballot for the May 7, 2016 water district election. [2] See id. You question whether the employee, if elected and if still employed by the county attorney's office, would be disqualified from service on the district's board by section 49.052. See id.

    Chapter 49 of the Water Code applies generally to all general and special law water districts. [3] See TEX. WATER CODE §§ 49.001-.512 (titled "Provisions Applicable to All Districts"); but see id. § 49.052(f) (providing for specified exceptions to the application of section 49.052). Section 49.052 disqualifies a person from serving as a member of a board of certain water districts, "if that person ... is an employee of any developer of property in the district or any director, manager, engineer, attorney, or other person providing professional services to the district." Id. § 49.052(a)(2) (emphasis added).

    Turning to your question, we note that the goal of statutory construction is to "ascertain the Legislature's intent." Tex. Adjutant Gen.'s Office v. Ngakoue, 408 S.W.3d 350, 354 (Tex. 2013). "The best guide to that determination is usually the plain language of the statute." Id.

    Subsection 49.052(a)(2) includes within its disqualification an employee of any attorney providing professional services to a district. TEX. WATER CODE § 49.052(a)(2). You tell us this person is an employee of the county attorney, thus we need only consider the scope of the phrase "any attorney." The term "any" is defined to mean "[s]ome; one out of many; ... and is given the full force of 'every.'" Beck v. Craven, 360 S.W.2d 827, 830-31 (Tex. Civ. App.—Houston [1st Dist.] 1962, no writ) (internal quotation marks omitted)); see also City of Austin v. Salyer, 441 S.W.2d 862, 865 (Tex. Civ. App.—Austin 1969, writ ref'd n.r.e.). On its face, the statute makes no distinction between an attorney providing professional services solely to a district and an attorney working in dual roles, only one of which involves providing professional services to a district. Absent such a distinction, a court would likely construe subsection 49.052(a)(2) to disqualify an employee of an attorney who provides professional legal services to a district, even if the employee serves the attorney in a role that does not include the provisions of legal services to the district.

                                  SUMMARY

                   A court would likely construe subsection 49.052(a)(2) of the Water Code to disqualify an employee of the county attorney from serving as a member of the board of a water control and improvement district in the same county, when the county attorney also provides professional legal services to the water district.

                                         Very truly yours,

                                         KEN PAXTON
                                         Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy First Assistant Attorney General

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

CHARLOTTE M. HARPER
Assistant Attorney General, Opinion Committee

[1] See Letter from Honorable Rodolfo V. Gutierrez, Jim Hogg Cty. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Mar. 16, 2016), https://www.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").

[2] In a telephone call to your office, you explained that the candidate was unsuccessful but that you still desire the opinion because it is likely this scenario will arise again. Telephone conference with Honorable Rodolfo V. Gutierrez, Jim Hogg Cty. Att'y (May 11, 2016).

[3] You do not ask us to make a determination about whether section 49.052 applies to the district in question. For purposes of this opinion, we presume that it does.