                        Office of tfje Igttornq,dhntral
                                    Otah of &txas



                                   March 27,199l




Honorable Abelardo Garxa                        Opinion No. DM-12
Duval County Attorney
Dud County Courthouse                           Re:    Whether a board member of a
P. 0. Drawer M                                  conservation and reclamation district may
San Diego, Texas 78384                          serve simultaneously as the district’s man-
                                                ager (RQ-2192)


Dear Mr. Gama:

        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 $l,SOO.OOper 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’s0 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



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Honorable Abelardo Gatza - Page 2      (DM-12 )




       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 . . . . T!te 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 51.0&J is also
applicable to the board, since that provision assumes that there are five directors
rather than four.




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Honorable Abelardo Garza - Page 3         (DM-12 1




        All of chapter 51 of the Water Code, which governs water control and
improvement dlltricts, contemplates a five-member board of directors. Water Code
3 51.971. 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 genemlb 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, ic, 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:




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Honorable Abe&do Garza - Page 4          (DM-   12 )




           . .. .


                    (2) he is an employee of any developer of
                property in the district, or any director, manager,
                engines, or attorneyfor 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 Benevides-and the district encompasses the
entire area of both cities. Therefore, the district does not “include within its
boundaries I.ars 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



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Honorable Abelardo Garxa - Page 5      (DM- 12 )




by the other [three] directors.” Water Code 9 51.0&1. 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

RENEAHIcKs
Special Assistant Attorney General

SUSAN GARRISON
Acting Chairman, Opinion Committee

Prepared by Rick Gilpin
Assistant Attorney General




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