                              ATTORNEY GENERAL OF TEXAS
                                          GREG        ABBOTT




                                               July 29, 2008



Ms. Kathleen T. Jackson, Chair                        Opinion No. GA-0650
Lower Neches Valley Authority
Post Office Box 511 7                                 Re: Whether members of the board of directors of
Beaumont, Texas 77726-5117                            the Lower Neches Valley Authority may participate
                                                      in the Authority's health care plan (RQ-0673-GA)

Dear Ms. Jackson:

      You ask whether members of the board of directors of the Lower Neches Valley Authority
may participate in the Authority's health care plan. 1

        The Lower Neches Valley Authority (the "LNVA") was created in 1933 by special act ofthe
Legislature "as a governmental agency, body politic and corporate, vested with all the authority as
such under the Constitution and Laws of the State; and which shall have and be recognized to
exercise all of the powers of such governmental agency and body politic and corporate as are
expressly authorized in the provisions of the Constitution, Section 59 of Article 16." Act approved
Oct. 23, 1933, 43d Leg., 1st C.S., ch. 63, 1933 Tex. Gen. Laws 169, 169-70. "The management and
control of all the affairs of such district shall be vested in a Board of Directors, consisting of nine
(9) members," who are appointed by the governor with the advice and consent of the Senate, and
who shall hold office for staggered terms of six years. Act of May 26,1997, 75th Leg., R.S., ch.
1263, § 1, 1997 Tex. Gen. Laws 4787, 4787.

         As a conservation and reclamation district created under article XVI, section 59 ofthe Texas
Constitution, the LNVA is also subject to chapter 49 of the Water Code. Chapter 49 is applicable
to "all general and special law districts to the extent that the provisions ofthis chapter do not directly
conflict with a provision in any other chapter of [the Water Code] or any Act creating or affecting
a special law district." TEX. WATER CODE ANN. § 49.002(a) (Vernon 2008). The word "district,"
for purposes of chapter 49, means "any district or authority created by authority of either Sections
52(b)(I) and (2), Article III, or Section 59, Article XVI, Texas Constitution, regardless of how
created," but does not include any navigation district or port authority or a district governed by
chapter 36 of the Water Code. Id. § 49.001(a)(1).


          ILetter from Ms. Kathleen T. Jackson, Chair, Lower Neches Valley Authority, to Honorable Greg Abbott,
Attorney General of Texas (Jan. 29, 2008) (on file with the Opinion Committee, also available at http://www
.texasattomeygeneral.gov) [hereinafter Request Letter].
Ms. Kathleen T. Jackson - Page 2               (GA-0650)




        You ask whether members ofthe board ofdirectors are entitled to participate in the LNVA's
health care plan established under section 49.069 of the Water Code. Request Letter, supra note 1,
at 1. Section 49.069 authorizes a district operating under chapter 49 of the Water Code to offer a
health care plan to its employees:

                       The board may include hospitalization and medical benefits
               to its employees as part of the compensation paid to the officers and
               employees and may adopt any plan, rule, or regulation in connection
               with it and amend or change the plan, rule, or regulation as it may
               determine.

TEX. WATER CODE ANN. § 49.069(c) (Vernon 2008).. We presume for purposes ofthis opinion that
members of the board of directors of the LNVA. are "officers" within the meaning of section
49.069(c). The only express authorization to the board is to include hospitalization and medical
benefits only in the compensation paid "to its employees." Id. Thus, under the plain terms ofsection
49.069(c), only employees may receive hospitalization and medical benefits as part of their
compensation.

        It has been suggested, however, that the directors ofthe LNVA might themselves qualify as
"employees" for purposes of section 49.069(c). Request Letter, supra note 1, at 2. In a prior
opinion, this office considered whether directors of a chapter 49 water district might be classified
as "employees" for purposes ofparticipation in a deferred compensation plan. See Tex. Att'y Gen.
Op. No. JC-0197 (2000). The opinion relied on a decision of the United States Supreme Court
declaring that when the term "employee" is used in the law without an accompanying definition, "the
term presumably describes 'the conventional master-servant relationship as understood by the
common-law agency doctrine.'" Id. at 3 (quoting Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318,
322-23 (1992)). The opinion concluded that a director of a chapter 49 district "is not an employee
ofthe district under the common law." Id. Based on this same reasoning and authority, we conclude
that LNVA directors are not "employees" for purposes of section 49.069(c).

        Moreover, the term "employees" in section 49.069(c) is clearly limited in its scope when
contrasted with the language of section 60.014 of the Water Code. In a prior opinion, we said that
members of the board of directors of a navigation district, another type of conservation and
reclamation district, were authorized to provide medical benefits to themselves. See Tex. Att'y Gen.
Op. No. GA-0284 (2004) at 4. The relevant statute provided, however, that "[t]he [navigation]
commission may include hospitalization and medical benefits for officers and employees as part
of the compensation paid to the officers and employees." TEX. WATER CODE ANN. § 60.014(a)
(Vernon 2004) (emphasis added). This provision, by specifically permitting a navigation district to
offer hospitalization and medical benefits to its officers, demonstrates that the Legislature was aware
of the kind of language required to permit the offering of such benefits to an officer. In section
49.069(c), it elected not to do so, but rather to limit hospitalization and medical benefits to
employees of the district.
Ms. Kathleen T. Jackson - Page 3                        (GA-0650)




         You suggest that a director may nevertheless participate in the LNVA's health plan because
hospitalization and medical insurance premium could be authorized by section 49.060(a) as a
director's "fees ofoffice" of"not more than $ 150 a day." See id. § 49.060(a); Request Letter, supra
note 1, at 2.2 Your suggestion appears to be based on the idea that section 49.060 provides
independent authority to the board to offer hospitalization and medical benefits. It does not. The
board's only authority in this regard comes from section 49.069(c), which, as we have concluded,
limits hospitalization and medical benefits to employees ofthe LNVA. Moreover, nothing in section
49.060(a), which limits the compensation of a director to an individual's substantive performance
of duties, 3 suggests that a director would be entitled to receive the maximum fees of office on an
ongoing and consistent basis for the kind of continuous coverage necessary for hospitalization and
medical benefits. Although a director may be theoretically eligible to receive the maximum
compensation of $7,200 per year, that compensation, as we have indicated, must be tied to actual
performance of substantive duties. See supra note 3. In addition, even ifthe entire health insurance
premium could be paid within the boundaries ofa director's maximum annual compensation, again
the relevant statutes do not specifically authorize a director of the LNVA, unlike the officers of a
navigation district or the employees of the LNVA, to participate in the LNVA's health plan. Such
authority to participate is a separate benefit, beyond the cost of such participation, and that authority
is a prerequisite to the act of participation. We conclude that a director of the LNVA is not entitled
or eligible to participate in the LNVA's health care plan.

         Finally, you ask whether the directors may participate in the LNVA's health plan under the
provisions ofsection 172.004 ofthe Local Government Code, which permits "a political subdivision
... directly or through a risk pool," to "provide health and accident coverage for political subdivision
officials, employees, and retirees." TEX. Loc. GOV'TCODEANN. § 172.004(a) (Vemon2008). That
statute, which is applicable to all "political subdivisions," is clearly broader than section 49.069(c)
of the Water Code. Section 311.026(a) of the Government Code provides that, "[i]f a general


          2The original enabling legislation for the LNVA provided that "[t]he directors shall receive as fees ofoffice the
sum of not to exceed Ten ($10.00) Dollars per day for each day of service necessary to discharge their duties, provided
such service is authorized by vote of the Board of Directors." Act approved Oct. 23, 1933, 43d Leg., 1st C.S., ch. 63,
§ 7, 1933 Tex. Gen. Laws 169, 171. Subsection (e) ofsection 49.060 ofthe Water Code, however, declares that despite
the language ofsection 49.002, the "fees ofoffice" provisions ofsection 49.060 "take precedence over all prior statutory
enactments." TEX. WATER CODE ANN. § 49.060(e) (Vernon 2008). See also TEX. GOV'T CODE ANN. § 311.026(b)
(Vernon 2005) (stating that a general provision prevails over a conflicting local provision unless "the general provision
is the later enactment and the manifest intent is that the general provision prevail").

         3The statute further limits the amount of fees to which a director is entitled:

                             In this subsection, "performing the duties ofa director" means substantive
                   performance of the management or business of the district, including participation
                   in board and committee meetings and other activities involving· the substantive
                   deliberation of district business and in pertinent educational programs. The phrase
                   does not include routine or ministerial activities such as the execution ofdocuments,
                   self-preparation for meetings, or other activities requiring a minimal amount of
                   time.

TEX. WATER CODE ANN. § 49.060(a) (Vernon 2008).
Ms. Kathleen T. Jackson - Page 4                (GA-0650)




provision conflicts with a special or local provision, the provisions shall be construed, if possible,
so that effect is given to both." TEX. GOV'T CODE ANN. § 311.026(a) (Vernon 2005). Section
311.026(b) of the Government Code declares that "[i]fthe conflict between the general provision
and the special or local provision is irreconcilable, the special or local provision prevails as an
exception to the general provision, unless the general provision is the later enactment and the
manifest intent is that the general provision prevail." Id. § 311.026(b). Texas courts, including the
Texas Supreme Court, have construed the term "special or local" to mean "specific." See City of
Dallas v. Mitchell, 870 S.W.2d 21, 23 (Tex. 1994); see also Tex. Att'y Gen. Ope No. GA-0441
(2006) at 4-5 (section 311.026(b) ofthe Government Code has been construed to mean that, in case
of conflict, a specific enactment controls over a more general enactment).

        We believe that section 172.004 of the Local Government Code is in conflict with section
49.069(c) of the Water Code, which effectively operates to prohibit directors from participating in
the LNVA's health plan. As we have noted, section 172.004(a) is the more general provision, in that
it applies to all political subdivisions, while section 49.069(c) is limited to those districts to which
chapter 49 of the Water Code is applicable. By excluding directors from the ambit of section
49.069(c), the Legislature made a decision to restrict the scope of section 172.004(a) with regard to
those districts covered by section 49.069(c). See, e.g., In re Bell, 91 S.W.3d 784,790 (Tex. 2002)
("every word excluded from a statute must ... be presumed to have been excluded for a purpose");
State v. Kaiser, 822 S.W.2d 697,700 (Tex. App.-Fort Worth 1991, pet. refd) (legislative intent
may be inferred from the fact that a statute does not contain a certain provision). Thus, we believe
that a court would conclude that, with regard to a director's eligibility to participate in a district's
health plan, section 172.004(a) of the Local Government Code is in irreconcilable conflict with the
provisions of chapter 49 of the Water Code. Furthermore, section 49.069(c) of the Water Code, an
enactment that is more specific than section 172.004(a) ofthe Local Government Code, was enacted
subsequently to section 172.004. Compare Act ofMay 25, 1995, 74th Leg., R.S., ch. 715, 1995 Tex.
Gen. Laws 3755, 3755-3804 (enacting chapter 49 of Water Code), with Act of May 16, 1989, 71st
Leg., R.S., ch. 1067, 1989 Tex. Gen. Laws 4316, 4316-20 (enacting chapter 172 of Local
Government Code). Thus, section 311.026(b) ofthe Government Code does not preclude the result
we reach here. We conclude that section 172.004 ofthe Local Government Code does not authorize
the LNVA to provide health coverage for its directors.
Ms. Kathleen T. Jackson - Page 5            (GA-0650)




                                   SUMMARY

                      A director of the Lower Neches Valley Authority is not
              eligible to participate in the Authority's health care plan.




                                                      BBOTT
                                                  y G neralofTexas


KENT C. SULLIVAN
First Assistant Attorney General

ANDREW WEBER
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee
