Honorable Terra1 Smith        Opinion No.   JM-1130
Chairman
Natural Resources Committee   Re: Familial relationships as
House of Representatives      a disqualification    for mem-
P. 0. Box 2910                bership on the board of the
Austin, Texas 78768-2910      Barton Springs-Edwards Aquifer
                              Conservation District
                              (RQ-1799)

Dear Mr. Smith:

     you advise that two people who are related to each
other as first cousins were elected directors of the Barton
Springs-Edwards  Aquifer Conservation   District.   One was
elected from precinct    3 and the other was elected    from
precinct 5. Terms for the directorships expire at different
times, but both directors were elected in the same election.
You ask if a newly revised provision      of the Water  Code
applies to them.   Specifically, you ask:

         1. Does Texas Water Code Section 50.026(a),
        as amended by H.B. 2498, apply to the Barton
        Springs-Edwards  Aquifer  Conservation  Dis-
        trict?

        2. If so, does it operate to disqualify    the
        directors of Precincts 3 and 5?

        3. If so, where both directors were elected
        at the same election, how should the District
        determine which one is to be disqualified?

        4. Is the amendment     constitutionally      im-
        permissible as a special law?

     Prior to its amendment in 1989, section 50.026(a)(l)   of
the Water Code provided:

           (a) A person is disqualified from serving
        as a member of a governing      board of a
        district orooosinc to orovide or actually




                              p. 5944
Honorable Terra1 Smith - Page 2 (JM-1130)




       providinu water and sewer services or either
       of these services to household users as the
       principal  functions of the district      and
       created by special act of the legislature if:

               (1) .he is related within   the third
           degree of affinity or consanguinity to a
           developer of property in the district, z!~y
           other member of the aovernina board of the
           district, or the manager,    engineer,   or
           attorney for the. district[.]     (Emphasis
           added.)

Section 50.026(a)(l) has now been amended to read:

            (a) A person is dxqualified  from serving
        as a member     of the governing board of a
        district which was created under this title
        or by special act of the legislature,    which
        2
        is rovid'n or                              the
        district's
        r.
        sewe       aina                             or
        protection facilities or services, or an v of
        these
        1.
        commercia                1 users, other than
        agricultural or irrigation users; and which
        district includes less than all the territory
        in at least one countv and which, if located
        within  the coraorate    area of a citv or
        >
        cities   include                          less
        than 75 nercent of the incornorated area of
        the citv or cities if:

               (1) he is related within the third
           degree of affinity or consanguinity to a
           developer of property in the district, any
            &
           pthe   membe
           district, or the manager,    engineer,   or
           attorney   for the district.1     (Emphasis
           added.)



     1. Because the restrictions involve familial relation-
ships, statutes such as these are sometimes called    "nepo-
tism" statutes,  but that characterization is a misnomer.
Nepotism involves favoritism shown a relative on the basis
                                        (Footnote Continued)




                             P. 5945
.

    Honorable Terra1 Smith - Page 3     (JM-1130)




    Acts 1989, 71st Leg., ch. 328, 9 1, at 1292.

         By way   of   explanation    and   background   your   letter
    advises:

            The Barton Springs-Edwards Aquifer    Consefva-
            tion District ("the District") is an under-
            ground water conservation   district that was
            created pursuant to article III, Section      52
            of the Texas Constitution   and Chapter 52 of
            the Texas Water Code, as amended by Senate
            Bill 986 (Act of June 17, 1987, Chapter     429,
            1987 Tex. Sess. Law Serv. 3967). The purpose
            of the district is "to provide for the con-
            servation, preservation, protection, recharg-
            ing, and    prevention   of   waste"    of   the
            underground waters of the Edwards Aquifer.
            (Tex. Water Code      Section 52.021).       The
            Aquifer has been designated as a sole-source
            aquifer; that is, it is generally the only
            water supply    available.    The    District's
            boundaries  encompass    portions    of    Hays,
            Travis, Caldwell and Bastrop Counties.

           Approximately eighty percent of the water
           pumped from the aquifer within the District's
           boundaries is used for domestic and municipal
           water supplies.   The District    is actively
           engaged   in protecting   the waters  of the
           aquifer. The aquifer's water is potable    as
           produced from the ground, and is used by the
           District's residents   for household, commer-
           cial and industrial purposes.    The District
           does not sell water as a public utility:
           however,   the District permits wells     and
           collects a use fee, calculated on the amount
           of annual pumpage from the Aquifer, for each
           well for which a permit is issued which     is
           not exempted from regulation.    The District


    (Footnote Continued)
    of the relationship   by someone in a hiring or supervisory
    capacity. See Collier v. Civil Serv. Comm'n of Wichita
    Ed)764     S.W.2d   364,(Tex. App. - Fort Worth 1989, writ
            . Here, both directors were elected by the people;
    neither was hired by the other, and neither supervises  the
    other.




                                     p. 5946
                                        ~.




Honorable Terra1 Smith - Page 4   (JM-1130)




        does not regulate development or land use
        within its boundaries except to the extent
        that new wells are necessary.  All new wells
        drilled require a permit from the District.

     Whether section 56.026(a) applies to the district  here
is a fact question that we cannot determine in the opinion
process of this office. You advise that the district     was
created under chapter   52 of  the  Water Code,   so it  was
created "under this title" [title 4 of the code] within  the
meaning of section 50.026(a), and it is clearly providing
potable water %ervicesl' to household, commercial, or indus-
trial users.  But whether it does so (or proposes to do so)
"as the district's principal function" is a fact question --
as is the matter of its territorial compass.

     First cousins are related within the third degree by
consanguinity.  See Attorney General Opinion JM-741     (1987).
If section 50.026(a) does apply, we think it operates        to
disqualify the directors of precincts 3 and 5.    See Attorney
General Opinion JM-296 (1985). In that event, the district
need not determine which of them are disqualified: they are
both disqualified.  Subsection    50.026(a)(6) specifies   that
persons are disqualified from serving on the board of such a
district if "during the    [director's] term of office     [the   i
director] fails to maintain   the  qualifications required   by
law to serve as a director."   Acts 198?, 71st Leg., ch. 328,
5 1, at 1292. Both men, elected at the same time, failed to
maintain the necessary   qualifications.     Neither man was
related to a director at the time they stood for office, but
afterward, both assumed  office notwithstanding their rela-
tionship.

     Although the peculiarity of the territorial basis upon
which the statute applies to districts makes it suspect     as
a special or local law in violation of article III, section
56, of the Texas Constitution, we cannot say that it is vio-
lative of the provision    as a matter   of law.    Again,  we
cannot determine factual matters   in the opinion process   of
this office, anti there is an insufficient factual basis   for
reaching a decision    as a matter   of law.     &g   Attorney
General Opinion JM-296.




           Section 50.026(a)(l) operates to disqual-
        ify first cousins elected at the same time as
        directors of a district to which the statute




                              p. 5947
Honorable Terra1 Smith - Page 5    (JM-1130)




        applies.   Both are disqualified  where both
        assume office and serve. Facts cannot be
        determined in the opinion process      of the
        Attorney   General's  Office and there     are
        insufficient facts given to determine whether
        section   50.026(a) applies to the      Barton
        Springs-Edwards Aquifer Conservation District
        or whether   the statute, as applied to the
        district,   constitutes  an  unconstitutional
        local or special law.




                                     JIM     MATTOX
                                     Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Bruce Youngblood
Assistant Attorney General




                               p. 5948
