                                  ATTORNEY GENERAL                      OF    TEXAS
                                                GREG        ABBOTT




                                                   March 13,2006



Mr. E.G. Rod Pittman                                         Opinion No. GA-04 11
Chair, Texas Water Development             Board
Post Office Box 1323 1                                       Re: Possible conflict between two versions of
Austin, Texas 7871 l-323 1                                   sections 16.341 and 17.923 of the Water Code, as
                                                             amended by House Bill 467 and Senate Bill 425,
                                                             both adopted during the Seventy-ninth Legislature
                                                             (RQ-0394-GA)

Dear Mr. Pittman:

          The Texas Water Development Board (the “Board”) asks us to resolve perceived conflicts
between two versions of section 16.341 of the Water Code, pertaining to water supply and sewer
services in economically distressed areas, and section 17.923 of the same code, which concerns
financial assistance to economically distressed counties for water supply and sewer services.’ The
two statutes were amended twice during the Seventy-ninth Legislature, first by Senate Bill 425 on
May 25,2005 and subsequently by House Bill 467 on May 27, 2005.2 The Board suggests that the
bills amended sections 16.341 and 17.923 in different, inconsistent ways and asks which version of
these statutes state agencies and political subdivisions should follow. See Request Letter, supra note
 1, at 1.

         Water Code chapter 16, subchapter J, for which section 16.341 defines terms, and chapter
17, subchapter K, of which section 17.923 is a part, were adopted together in 1989 as part of a large
bill intended to provide for the improvement of water supply and sewer systems in the border
colonias and other economically distressed areas in border counties. See TEX. WATER CODE ANN.
$5 16.341-.356 (Vernon 2000 & Supp. 2005); id. $5 17.921-.936.3 A reading of chapter 16,
subchapter J and chapter 17, subchapter K suggests that the two are intertwined. Section 16.343(a)


         ‘See Letter from J. Kevin Ward, Executive Administrator, on behalf of E.G. Rod Pittman, Chair, Texas Water
Development Board, to Honorable Greg Abbott, Attorney General of Texas (Sept. 14,2005) (on file with the Opinion
Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter].

           *See Act of May 25,2005,79th    Leg., R.S., ch. 708, $4 15, 16,2005 Tex. Gen. Laws 1724, 1728-29 (Senate
Bill 425); Act of May 27,2005,79th     Leg., R.S., ch. 927, $3 2, 15,2005 Tex. Gen. Laws 3 166,3 166-67, 3 17 1 (House
Bill 467).

           ‘Adoptedby   Act ofMay28,   1989,71stLeg.,   R.S., ch. 624, $9 2.13, .21, 1989 Tex. Gen. Laws2063,2067-72,
2078-82.
Mr. E.G. Rod Pittman        - Page 2                   (GA-04 11)




requires the Board to adopt model rules to assure that water supply and sewer services in residential
areas of political subdivisions meet minimum standards for safety and sanitation. See id. $16.343(a)
(Vernon Supp. 2005). Section 17.922 permits the Board to provide financial assistance to a county
to construct, acquire, or improve water supply and sewer services, but only if the county has adopted
the Board’s model rules, promulgated under section 16.343(a). See id. fj 17.922(a); id. 0 17.921(3)
(defining “political subdivision”); id. 6 17.921(6) (defining “economically           distressed areas
account”); id. § 16.350(a) (Vernon 2000) (requiring a county or municipality to adopt the Board’s
model rules to participate in the financial assistance program). Section 16.345(a) authorizes a county
to participate in the financial assistance program established under chapter 17, subchapter K. See
id. 0 16.345(a). A county that receives financial assistance under section 17.922 may use the money
to “construct, contract for construction, operate or contract” for the operation of water supply or
sewer services or facilities. See id. 6 16.355.

I.       General Principles

          Under the Code Construction Act, if the same session of the legislature amends the same
statute multiple times, each amendment without reference to the other, we typically must harmonize
the amendments “if possible, so that effect may be given to each.” See TEX. GOV’T CODE ANN.
$ 3 11.025(b) (Vernon 2005). “If the amendments are irreconcilable,” however, the later enacted
amendment prevails. Id. 0 3 11.025(a)-(b). In determining a statute’s date of enactment, “the date
of enactment is the date on which the last legislative vote is taken on the bill enacting the statute.”
Id. 6 311.025(d); see also id. 5 3 11.025(e) (p roviding for cases in which the journals or other
legislative records fail to disclose relative dates of enactment). Consequently, to the extent the
sections are in irreconcilable conflict, the later enacted provisions-those    adopted on May 27,2005
by the adoption of House Bill 467-generally        prevail. See id. 9 3 11.025(a)-(b).

         Mere difference does not constitute an irreconcilable conflict. See Garcia v. State, 669
S.W.2d 169, 171 (Tex. App.-Dallas        1984, pet. ref d); Tex. Att’y Gen. Op. No. GA-0369 (2005)
at 4. “Irreconcilable conflict involves a direct conflict such that ‘it is impossible to comply with both
provisions at the same time.“’ Tex. Att’y Gen. Op. No. GA-0369 (2005) at 4 (quoting Tex. Att’y
Gen. LO-98-124, at 4).

II.      Water Code Section 16.341(l), Definiw               the Term “Affected County”

         We consider first the amendments to section 16.341 ‘s definition of “affected county.” Many
provisions in chapter 16, subchapter J apply to a political subdivision, which is defined to include
an affected county. See TEX. WATER CODE ANN. 6 16.341(3) (Vernon Supp. 2005).4 Thus, the
definition of “affected county” in section 16.34 1 is important in restricting the class of counties that
can participate in the program established by chapter 16, subchapter J.


         4See, e.g., TEX. WATERCODE ANN.    $ 16.343(a)(Vernon Supp. 2005) (requiringthe Board to adopt model rules
to assure that minimum safety and sanitation standards are met “in residential areas of political subdivisions”); id. $
16.345(a) (Vernon 2000) (authorizing a political subdivision to participate in a program under chapter 17, subchapter
K); id. 8 16.347(b) (authorizing a political subdivision that has applied for financial assistance under chapter 17,
subchapter K to “impose a distressed areas water financing fee”).
Mr. E.G. Rod Pittman     - Page 3                  (GA-041 1)




         Prior to its amendment in 2005, the definition of the term “affected county” was limited to
counties (1) with below average per capita income and above average unemployment or (2) that are
adjacent to the international border.5 Senate Bill 425 amended the definition of “affected county”
to enlarge the category of counties to include certain counties located within 100 miles of an
international border:

               (1)    “Affected county” means a county:

                     (A) that has a per capita income that averaged 25 percent
               below the state average for the most recent three consecutive years for
               which statistics are available and an unemployment rate that averaged
               25 percent above the state average for the most recent three
               consecutive years for which statistics are available; [or]

                      (B)   that is adjacent to an international      border; or

                     (C) that is located in whole or in part within 100 miles of an
               international border and contains the majority of the area of a
               municipality with a population of more than 250,000.

Act of May 25,2005,79th       Leg., R.S., ch. 708,s 15,2005 Tex. Gen. Laws 1724,1728-29 (Senate
Bill 425, now codz?ed at Water Code section 16.341(l)) (strikeout indicates deleted language;
emphasis indicates new language). House Bill 467 also amended the definition of “affected county,”
but did so in part by deleting all geographic criteria:

               (1)    “Affected county” means a county[:

                    [f243] that has an economically distressed area which has a
               median household income that is not greater than 75percent of the
                                                         . .
               median state household income. [[




Act of May 27,2005,79th Leg., R.S., ch. 927,s 2,2005 Tex. Gen. Laws 3 166,3 166-67 (House Bill
467, now codified at Water Code section 16.341( 1)) (strikeout indicates deleted language; emphasis
indicates new language). Water Code section 17.92 1 defines the term “economically distressed area”
used in House Bill 467 without reference to the area’s geographic location:



       ‘See Act of May 28, 1989,71st   Leg., R.S., ch. 624, 9 2.13, 1989 Tex. Gen. Laws 2063,2067.
Mr. E.G. Rod Pittman     - Page 4                (GA-041 1)




                (1)   “Economically    distressed area” means an area in which:

                     (A) water supply or sewer services are inadequate to meet
                minimal needs of residential users as defined by [Board] rules;

                      (B) financial resources are inadequate to provide water supply
                or sewer services that will satisfy those needs; and

                     (C) an established residential subdivision was located on June
                1,2005, as determined by the [Board].

TEX. WATER CODE ANN. 8 17.921(l)         (Vernon Supp. 2005); see also id. 6 16.341(2) (defining
“economically distressed area” to have the meaning section 17.92 1 assigns); id. $17.001(l) (Vernon
2000) (defining “Board”).

          The two versions of section 16.34 1‘s definition of the phrase “affected county” differ in three
respects. First, Senate Bill 425 retains the economic requirement from the pre-2005 definition, so
that an affected county has “a per capita income that averaged 25 percent below the state average
* . . and an unemployment rate that averaged 25 percent above the state average . . . .” Act of May
25,2005,79th Leg., RX, ch. 708,s 15,2005 Tex. Gen. Laws 1724,1728-29 (Senate Bill 425, ylow
codified at Water Code section 16.341(1)(A)).          H ouse Bill 467, on the other hand, changes the
economic requirement to a county with “an economically distressed area [as defined by section
 17.92 l] which has a median household income that is not greater than 75 percent of the median state
household income.” Act of May 27,2005,79th Leg., R.S., ch. 927,s 2,2005 Tex. Gen. Laws 3 166,
3 166-67 (House Bill 467, lzow codified at Water Code section 16.34 l(1)). Second, House Bill 467
eliminates the requirement that a county’s unemployment rate be ascertained. See id. And third,
Senate Bill 425 includes counties adjacent to an international border and certain counties within 100
miles of an international border without regard to economic and unemployment factors. See Act of
May 25, 2005,79th Leg., R.S., ch. 708, $ 15,2005 Tex. Gen. Laws 1724, 1729 (Senate Bill 425,
ylow codzjied at Water Code section 16.341(l)(B)-(C)).          By contrast, House Bill 467 requires an
analysis of economic factors with respect to all counties. See Act of May 27,2005,79th Leg., R.S.,
ch. 927, 6 2,2005 Tex, Gen. Laws 3 166,3 166-67 (House Bill 467, y2owcodzjied at Water Code
section 16.341(l)).

         We believe the two versions of section 16.341’s definition of affected county are in
irreconcilable conflict. The required economic analyses of income-“a           per capita income that
averaged 25 percent below the state average” as compared to “a median household income that is
not greater than 75 percent of the median state household income”-use         different figures in their
calculations: per capita income as opposed to household income, and the state average as opposed
to the median state household income. Moreover, one definition requires that the unemployment rate
be factored in, while the other does not. And with respect to the class of counties that are authorized
to receive financial assistance for water supply and sewer services, a county that is (1) adjacent to
an international border or (2) located within 100 miles of such a border and containing the majority
of the area of a municipality with a population greater than 250,000 automatically qualifies as an
Mr. E.G. Rod Pittman           - Page 5                 (GA-04 11)




affected county without an analysis of economic factors under Senate Bill 425 but not under House
Bill 467.6

        Because these two definitions cannot be harmonized, the later enacted provision prevails.
See TEX. GOV’T CODEANN. $3 11.025(b) (Vernon 2005) (directing that a later enacted amendment
prevails over irreconcilable amendments). The final legislative vote on Senate Bill 425 was taken
on May 25,2005, while the final legislative vote on House Bill 467 was taken on May 27, 2005.7

         Consequently, section 16.341( 1) as adopted by House Bill 467 on May 27, 2005, with no
unemployment requirement and no geographic requirement, prevails over the amendment adopted
on May 25, 2005 in Senate Bill 425. The prevailing version of section 16.341(l) defines the term
“affected county” as “a county that has an economically distressed area which has a median
household income that is not greater than 75 percent of the median state household income.” TEX.
WATER CODE ANN. 5 16.341(l) (Vernon Supp. 2005).’ Thus, counties located adjacent to or within
100 miles of an international border are not automatically qualified as an affected county.

III.         Water Code Section 17.923

        The Board also asks about apparently inconsistent amendments to section 17.923 made by
Senate Bill 425 and House Bill 467. See Request Letter, supra note 1, at 1. Prior to its amendment
in 2005, section 17.923 limited the set of counties that could receive financial assistance under
section 17.922 to counties that:

                           (1) **. have a per capita income that averaged 25 percent below
                     the state average for the most recent three consecutive years for which
                     statistics are available and an unemployment rate that averaged 25
                     percent above the state average for the most recent three consecutive
                     years for which statistics are available; or

                           (2) . . . [are] located adjacent to an international     border.’




          %2ompare Act of May 25200579th      Leg., RX, ch. 708, 9 15,2005 Tex. Gen. Laws 1724, 1728-29 (Senate
Bill 425, now codzj2ed at Water Code section 16.341(1)(B), (C)), with Act of May 27,2005, 79th Leg., R.S., ch. 927,
$2,2005 Tex. Gem Laws 3 166,3 166-67 (House Bill 467, now codiJied at Water Code section 16.341( 1)).

          ‘See Act of May 25,2005, 79th Leg., R.S., ch. 708, 9s 15, 16,2005 Tex. Gen. Laws 1724, 1728-29 (Senate
Bill 425); Act of May 27,2005,79th     Leg., R.S., ch. 927, $5 2, 15,2005 Tex. Gen. Laws 3 166,3 166-67,3 171 (House
Bill 467); see also TEX. GOV’T CODE ANN. 9 3 11.025(d) (Vernon 2005) (providing that “the date of enactment is the
date on which the last legislative vote is taken on the bill enacting the statute”).

             ‘Amended by Act of May 27,2005,79th   Leg., R.S., ch. 927, 8 2,2005 Tex. Gen. Laws 3 166,3 166-67 (House
Bill 467).

         ‘Act of May 28, 1989, 71st Leg., R.S., ch. 624, Q 2.21, sec. 17.883, 1989 Tex. Gen. Laws 2063, 2078,
renumbered by Act of June 6, 1990, 71st Leg., 6th C.S., ch. 12, 5 2(36), sec. 17.923, 1990 Tex. Gen. Laws 88, 90.
Mr. E.G. Rod Pittman       - Page 6                 (GA-041 1)




Senate Bill 425 added a third consideration, thereby including counties that are “located in whole
or in part within 100 miles of an international border and contain the majority of the area of a
municipality with a population of more than 250,000.” Act of May 25,2005, 79th Leg., R.S., ch.
708, $ 16,2005 Tex. Gen. Laws 1724, 1729 (Senate Bill 425, y2owcodzjied at Water Code section
17.923). By contrast, House Bill 467 repealed section 17.923 in its entirety. See Act of May 27,
2005,79th Leg., R.S., ch. 927, 6 15,2005 Tex. Gen. Laws 3 166, 3 171 (House Bill 467 repealing
section 17.923).

         We note that the publisher West Group construes House Bill 467 to have repealed section
17.923 as it existed before the 2005 legislative session but not the additional, third consideration that
Senate Bill 425 added. Thus, as published in the West supplement, “[t]o be eligible for financial
assistance under this subchapter, a county . . . must be located in whole or in part within 100 miles
of an international border and contain the majority of the area of a municipality with a population
ofmore than 250,000.” TEX. WATERCODEANN. 8 17.923(3) (Vernon Supp. 2005). The electronic
sources, Westlaw and LEXIS, publish section 17.923 in the same way.” (Westlaw and LEXIS
current through the end of the 2005 second called session of the Seventy-ninth Legislature).

        In our opinion, the two bills are irreconcilable vis-a-vis section 17.923. The repealer was
obviously intended to eliminate all requirements of eligibility for financial assistance under section
17.922 and is therefore inconsistent with the requirements articulated in Senate Bill 425.

         In an analogous 1988 case, State v. Preslar, the Texas Supreme Court suggested that a later
enacted statute that purports to repeal earlier enacted amendments to the same statute in fact repeals
the earlier amendments only if “all the circumstances surrounding” the two statutes’ adoption
indicate that the legislature intended to repeal the statute. State v. Preslar, 751 S.W.2d 477, 482
(Tex. 1988). In Preslar the court determined on the basis of all the evidence that a later enacted
repealer of Government Code section 74.053(b) did not, in fact, repeal conflicting earlier enacted
amendments. See id. The court did not, in so finding, strictly follow the Code Construction Act’s
injunction that the later enacted provision prevails over an irreconcilable, earlier enacted provision.
See TEX. GOV’T CODEANN. 5 3 11.025(a)-(b) (V ernon 2005). Following Preslar, we look not only
at the relative dates of enactment of the amendment and the repealer but also at the totality of the
circumstances surrounding the adoption of the two provisions.

         The circumstances surrounding the adoption of Senate Bill 425 and House Bill 467, along
with other evidence, indicate that the complete repeal of section 17.923 is most consistent with the
legislature’s intent. It appears from written legislative materials that the enlargement of the class
of counties eligible for financial assistance under chapter 17 to counties “located . . . within 100
miles of an international border and contain[ing] the majority of the area of a municipality with a




         “Without referring to the repeal of section 17.923 by House Bill 467, Westlaw notes that Senate Bill 425
“amended the section by adding subd. (3) and making other nonsubstantive changes.” LEXIS notes that House Bill 467
purported to repeal section 17.923 while Senate Bill 425 amended the same section. LEXIS continues: “The conflict
between these provisions has not been reconciled.”
Mr. E.G. Rod Pittman        - Page 7                  (GA-04 11)




population of more than 250,000”*1 was intended to include primarily Nueces County. See FISCAL
NOTE,   Tex. S.B. 425,79th Leg., R.S. (2005) (“Nueces County is currently the only county to which
the specification applies . . . ,“). House Bill 467 as enacted embodies, in large part, the remains of
Senate Bill 964, which stalled in the House Calendars Committee.‘* Senate Bill 964, authored by
Senator Lucia, was a product of interim meetings of the Texas Senate Committee on International
Relations and Trade. See Lucia Letter, supra note 12, at 2; see also SENATE COMM. ON
INTERNATIONAL RELATIONS AND TRADE,INTERIMREPORT104-05 (Dec. 2004). The interim report
indicates that sections 16.34 1 and 17.923 required amendment in part because counties that satisfied
the existing required calculation of average per capita income and unemployment rates “varied
year-by-year,” and the Board’s ability to identify “potential applicants” was therefore “hampered.”
SENATE COMM. ON INTERNATIONAL            RELATIONS AND TRADE, INTERIMREPORT 105 (Dec. 2004).
Changes in the eligibility criteria were advisable also to “arriv[e] at greater consistency between state
and federal water/wastewater programs.” Id.

         The totality of the circumstances surrounding the two bills leads us to conclude that the
repealer eliminated the whole of section 17.923, including subsection (3). Although House Bill 467
arguably did not repeal subsection (3), which was adopted by Senate Bill 425 and which would not
take effect until September 1, 2005, the bill repealed the introductory clause: “To be eligible for
financial assistance under this subchapter, a county . , . .“13 Without this sentence fragment,
subsection (3) as adopted by Senate Bill 425 has no meaning. And given the historically close
relationship between chapter 16, subchapter J and chapter 17, subchapter K, we believe it likely
that the legislature intended the same eligibility standards to apply in both contexts. For this reason,
section 17.923 has been completely repealed; the version published by West Group and LEXIS is
incorrect.




         “See Act ofMay 25,2005,79th      Leg., R.S., ch. 708, 5 16,2005 Tex. Gen. Laws 1724, 1729 (Senate Bill 425).

         “See Letter from Honorable Eddie Lucia Jr., Chair, Committee on International Relations and Trade, Texas
State Senate, to Nancy S. Fuller, Chair, Opinion Committee, Office ofthe Attorney General, at 2 (Oct. 2 1,2005) (on file
with the Opinion Committee) (recounting how “all the provisions of’ Senate Bill 964 were amended onto House Bill
467) [hereinafter Lucia Letter].

         “Act of May 28, 1989, 71st Leg., R.S., ch. 624, § 2.21, sec. 17.883, 1989 Tex. Gen. Laws 2063, 2078,
renumbered by Act of June 6, 1990, 7 1st Leg., 6th C.S., ch. 12, 4 2(36), sec. 17.923, 1990 Tex. Gen. Laws 88, 90,
repealed by Act of May 27,2005,79th  Leg., R.S., ch. 927, 0 15,2005 Tex. Gen. Laws 3 166, 3 17 1 (House Bill 467).
Mr. E.G. Rod Pittman   - Page 8              (GA-04 11)




                                       SUMMARY

                       Water Code section 16.341( 1) as adopted on May 27,2005 by
               the passage of House Bill 467 prevails over the conflicting section
               16.341(l) as adopted on May 25,2005 by the passage of Senate Bill
               425.

                       Water Code section 17.923 has been repealed in its entirety.




BARRY R. MCBEE
First Assistant Attorney General

ELLEN L. WITT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee
