-
                                    Msch 29, 1988
    .mx MA-
    ‘VrToRNPY GENERAL


                Honorable H. Tati Santiesteban          Opinion No.   JR-877
                Chairman
                Committee on Natural Resources          Re: Procedure for appoint-
                Texas State Senate                      ment of members   of the
                P. 0. BOX 12068                         Texas Water Commission
                Austin, Texas   78711                   (RQ-1221)

                 Dear Senator Santiesteban:

                     you ask whether each of the three members of the
                Texas Water Commission must represent    a different  geo-
                graphic area of the state. A now-repealed statute divided
                the state into three Texas Water Divisions   which corres-
                ponded approximately to the east, south, and west of the
                state. Acts 1913, 33d Leg.: Tex. Gen. Laws, ch. 171, §6;
P               see Acts 1967, 60th Deg., ch. 360, 52 (repealer).      The
                former law stated as follows:

                        The members   of said Commission   shall be
                        appointed by the Governor. . . . Each shall
                        be a citizen of this State and a bona fide
                        resident of the water division from which he
                        is appointed.

                 Acts 1962, 57th Leg., 3d C.S., ch. 4, at 10; see also Acts
                 1913, 33d Leg., Tex. Gen. Laws, ch. 171, 57, at 359.

                      In 1965, the legislature enacted Senate Bill No. 145
                 which deleted the language requiring   the appointment  of
                 one commissioner  from each of the water divisions     and
                 adopted the following language:

                        Members of the Commission  shall serve on a
                        full-time basis and heat
                        fro      different  section of th e state.
                        (Bmihaiis added.)

                 Acts 1965, 59th Deg., ch.        296, 53, at 583-84.           This
                 language is now codified in      section 5.052 of the         Water
                 Code:




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Honorable H. Tati Santiesteban   - Page 2   (JW-877)




           (a) The commission is composed of three
       members who are appointed   by the governor
       with the advice and consent of the senate.

           (b) The governor shall make the appoint-
       ments in such a manner that each member   is
       from a different section of the state.

Water Code 55.052.

     You ask whether   present   law requires  each Water
Commissioner to be appointed   from one of the three water
divisions or otherwise   requires commission   members  to
represent diverse geographic    areas of the state.     To
answer your question, we must determine the legislative
intent expressed in the language of section 5.052(b)    of
the Water Code, which was enacted in 1965.

     A brief submitted   by the Texas Water Commission
refers to a study of the statejs water      administration
system prepared   for the Water Commission,     the Water
Development Board, and the Water Pollution   Control Board
just prior to the 1965 legislative session.    The report,
prepared by the Texas Research League,     criticized   the
tendency of some state commissions

       to function along regional      lines and to
       program capital contributions   in rotation by
       member areas.

Texas Research League, A Revert to the Texas Water        Com-
mission and the Texas Water Develowment Board:     The Struc-
ture and Authoritv   or Stat Leadershio     of Water Develoo-
Dent In TexaS     23f (1965): The report      suggested   that
regional repre;entation be left to the legislature where
major state investments    were involved. &       The portion
of the report on commission organization recommended "that
the geographical districts    be eliminated   as a basis   for
appointment to the Texas Water Rights ComnLssion.n       Texas
Research League, A Reuort to the Texas Water       Commission
and the Water. Develonment        . Water Riahts
                             Board.                 and Water
               .
Resource Adwstration,      31 (1965). It stated as follows:

       [PIresent members are selected on the basis
       of geographical   districts  delineated  in
       1917, and those districts    are now badly
       out of balance   in terms of proportional
       representation.  The East Texas district,
       containing the cities of Dallas, Fort Worth
       and Houston and many other metropolitan
       centers, includes more than two-thirds   of


                           p. 4284
      Honorable H. Tati Santiesteban - Page 3 04-877)




             the State's total population.    In its role
             as an administrator   of water rights, the
             Texas Water Rights Commission would not be
             concerned  with the    promotion   of  water
             development which might favor one region as
             opposed to another.

      Recommendations from this report were    incorporated   in
      legislation   introduced  during   the 1965   legislative
      session.   S.B. NO. 14.5, S.B. No. 146, Acts 1965, 59th
      Leg., chs. 296, 297.

           Senate Bill No. 145, as introduced, eliminated      all
      geographical  qualifications   for the commission.      Bill
      File on Senate Bill No. 145, 59th Leg., R.S. (1965) (Texas
      State Archives).   A committee substitute   adopted by the
      Senate Committee on Water and Conservation and then by the
      Senate as a whole    included the language providing    that
      each member be from a different section of the state. Id.
      The House reinstated   the requirement  that one member   be
      appointed from each of the water divisions.    Id.; H.J. of
      Tex., 59th Leg., R.S., 1782 (1965). The Senate refused to
      concur in the House amendment and requested    the appoint-
rc-   ment of a conference committee.   S.J. of Tex., 59th Leg.,
      R.S., 1231-32   (1965). The conflict between the Senate
      provision and the House provision was resolved in favor of
      the Senate. The Conference Committee bill included the
      present language providing    that each member   be from a
      different section of the state. S.J. of Tex. 59th Leg.,
      R.S. 1870 (1965).

           This history of Senate Bill No. 145 shows that the
      House was reluctant to approve the Senate's changes      in
      the appointment provision,  while the Senate refused     to
      continue to require each member to reside in a different
      water division.   The actions of the legislature      which
      adopted this bill show that there was a significant
      difference between the old language on appointment     from
      water divisions and the new language on appointees being
      from different sections of the state. Legislative changes
      in the language     of statutes generally     indicate an
      intention to change meaning, and they must be given effect
      as such. zndeoendent Life Insurance C   v. Work, 77 S.W.2d
      1036 (Tex. 1934); &                            ., 37 S.W.Zd
      714 (Tex. 1931).

           By repealing the old provision requiring residency in
      a statutorily-defined   district   and substituting  a pro-
      vision that each      commissioner   be from    a different
-     nsectionO1 of the state, the legislature   departed from the
      former rigid residency     requirement.    Its use of the


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Honorable H. Tati Santiesteban   - Page 4   (JM-877)




undefined term wsection" had the effect of destroying
mandatory residency requirement. Vection,w as defined
the dictionary, is

       a distinct    pa*   of    a   territorial       or
       political area. . . .

Webster's Ninth New Collegiate Dictionary.      This is the
sense in which qqsectionH is used in Senate Bill No. 145.
It is a geographical     area, but one so indefinite      in
location and extent that it cannot be the basis of an
enforceable   residency  requirement   or other method    of
ensuring  geographical   distribution.    A provision   that
is essentially   indefinite,   uncertain,    and vague    is
ineffective and void.                  &me S ar    as Co. v.
gQ+y,.165   S.W.2d 446,w942);               SEate z. Humble
piDe Line Co., 247 S.W. 1082, 1085 (Tex. 1923).

     In our opinion,   section 5.052(b) of the Water    Code
does not establish   a valid, enforceable  requirement that
water commissioners reside in different geographical areas
of the state, and it need not be followed.       It can be
construed as an expression of the legislature's wish, not
its command, that the governor give some consideration to
geographical  distribution   in appointing   Water   Commis-
sioners.

     The legislature which enacted Senate Bill No.          145
adopted a resolution   exp;ii=ing  its intent as to         the
provision in question.          Concurrent Resolution       No.
153 provides in part:

          WHEREAS, Senate Bill 145 requires     the
       Governor  to appoint each of the       three
       Commissioners from a different   section of
       the State; now, therefore, be it

          RESOLVED by the House of Representatives,
       the Senate concurring, That the intent of
       the Legislature   is that the Governor     in
       making future appointments to the-CommisSion
       shall insofar    as oossible maintain     the
       Commission with members    appointed from the
       Eastern, Western and Southern areas of the
       State.   (Emphasis added.)

Acts 1965, 59th Leg., at 2171.

     A statute cannot be amended, repealed,  or otherwise
modified by a resolution.  Terre11 Wells Swimmina Pool V.
Rodriauez, 182, S.W.2d 824 (Tex. Civ. APP. - San Antonio


                           p. 4286
.

    Honorable H. Tati Santiesteban    - Page 5   (JM-877)




    1944, no writ); &H&Q 1                                    104
    S.W.Zd 174 (Tex. Civ. App. - Austin      1936, writ rek#d);
            v. Rou        79 S.W.2d 672   (Tex. Civ. App.   - San
    Antonio   1935, writ dism'd w.0.j.);       Attorney   General
    Opinion Nos. M-1261 (1972); WW-345 (1958). In saying that
    the governor    shall winsofar as possibleI* maintain       a
    particular    geographical   distribution    of   commission
    members, House Resolution 153 expresses    the legislature's
    preference, but leaves implementation of this preference
    to the governor's sole discretion.   There is no longer any
    requirement that each member of the Texas Water Commission
    represent a different geographical area of the state.

         In view of our conclusion that there is no such re-
    quirement, we need not answer your questions  that depend
    upon a contrary conclusion.

                            SUMMARY
                Section 5.052 of the Water Code, which
           provides that the governor    shall appoint
           members of the Water Commission     so that
           "each member is from a different section  of
           the state" does not establish an enforceable
           requirement and need not be followed.




                                      Lb
                                         Very truly y   s,
                                              a


                                         JIM     MATTOX
                                         Attorney General of Texas

    MARYNELLER
    First Assistant Attorney General

    LOU MCCREARY
    Executive Assistant Attorney General

    JUDGE ZOLLIE STEAXLEY
    Special Assistant Attorney General

    RICK GILPIN
    Chairman, Opinion Committee

    Prepared by Susan L. Garrison
    Assistant Attorney General




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