               THE         ATITORNEY                    GENERAL




                                     February     12,   1974


The Honorable Eugene       T.   Jenson                    Opinion No.   H-   226
County Attorney
Chambers   County                                         Re:    Constitutionality   of Senate
Anahuac,  Texas 77514                                            Bill 807, 63rd Leg.,     1973,
                                                                 concerning qualification    of
                                                                 members     of governing
                                                                 boards of certain conser-
                                                                 vation and reclamation
Dear   Mr.   Jenson:                                             districts

       You have asked for an opinion of this office concerning     the constitutionality
of sections added tomthe Water Code by Senate Bill 807 (Acts 1973, 63rd Leg.,
ch. 635, p. 1748) relating to the qualifications  for membership     on governing
boards of certain conservation   and reclamation    districts created under Article
3, g 52, and Article 16. 5 59, of the Texas Constitution.

       The bill contains four similarly    worded parts to be codified respectively
as $ $50.024,    51.0721,   53.0631, and 54.1021,   in those chapters of the Water
Code, V.T.C.S.,       which  govern  water  control  and improvement     districts,  fresh
water supply districts    and municipal utility districts.    Our  reference    to sub-
sections of these four new sections will be singular but is intended to cover all
of them.

       On June 16, 1973, this office issued Letter Advisory    No. 53 to Governor
Briscoe concerning   the constitutionality of subsection (a)(5)(B) of each section
to be added by Senate Bill 807. 7hat subsection  would render ineligible a person
who “is or has been within the two years immediately     preceding his election or
appointment to the board: ”

                      l’(B) a party to a contract with or along with a
              developer     of property in the~district relating to the
              district or to property within the district,      other than
              a contract   limited    solely    to the purpose   of purchasing




                                         p.    1051
The Honorable   Eugene   T.   Jenson,   page 2       (H-226)




       or conveying real property in the district for the
       purpose of either establishing a permanent   residence
       or establishing a commercial   business within the
       district. ”

    In that opinion. we concluded that the quoted subsection would probably
be held unconstitutional under 4 3 of Article 1 of the Constitution of the State
of Texas and under the Fourteenth Amendment to the Constitution      of the
United States, which both guarantee equal protection under state law.

    Letter Advisory  No. 53 limited our review of Senate Bill 807 to the
specific subsection referred to us by the Governor and stated that it should
not be understood as passing upon the constitutionality   of any other provision.
Your request inquires about the constitutionality  of “all other sections of
Senate Bill 807. ”

    In conducting such a review, we must keep in mind that courts will seek
to uphold legislation, and will strike it down as unconstitutional only if there
is no other reasonable  alternative.   Cameron County v. Wilson,   326 S. W. 2d
162 (Tex. 1959).

   Subsection   (b) of each section     states:

       “Within 60 days after the governing board determines
       a relationship   or employment which constitutes     a dis-
       qualification  under Subsection (a) of this section,   it
       shall replace the person serving a* a member of the
       governing board with a person who would not be dis-
       qualified. I’

    As we construe them, the new sections do not authorize a specific       removal
procedure for a director but rather state as a policy that, upon the obvious
occurrence   of a disqualification of a director and the determination   of the fact
by the governing board, the office becomes vacant.       Compare   Pruitt v. Glen
Rose Independent School District,     No. 1, 84 S. W. 2d 1004 (Tex. 1935).




                                         p.   1052
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     The Honorable     Eugene    T.   Jensen.   page 3       (H-226)




          It must be borne in mind, however,    that if the fact of vacancy of the
     office is reasonably   disputed, the governing board lacks authority to
     adjudicate that fact.   The remedy would be by writ of quo warranto.       See
     Articles   5996, 5997, 6253   and 6257, V. T. C.S. ; McFarlin   v. State, 272
     S. W. 2d 630 (Tex. Civ. App.,   Waco, 1954, err. ref’d. ,n. r. e. ).

         In Honey v.   Graham,        39 Tex.   1 (Tex.     1873).   the Supreme    Court   said:

            “The right to hold and exercise   the functions of an
            office to which the individual may have been duly elected,
            may be regarded both as property and privilege,      and
            therefore  the incumbent can only be deprived of his office
            in the manner pointed out in . . . the constitution.   It
            may be safely admitted that more than one case might
            occur where the governor would be authorized in
            assuming   that an office was vacant; but no case can
            occur under our constitution wherein the governor
            would be authorized to adjudge an office forfeited.

                  “Judgment belongs to the judiciary.                A charge of
             forfeiture  can only be made out on proof               - proof sufficient
             to satisfy twelve unprejudiced minds.

                  “To forfeit his right to an office. the incumbent
             must have done something sufficient in law to deprive
             him of the office; and the constitution and laws secure to
             the person so accused the right of traverse     - the right of
             trial - and no power on earth can lawfully deprive him of
             these rights. ” (39 Tex. at 11 - 12)

          We are of the opinion, therefore,   that so long as Subsection  (b) is
     not interpreted   as authorizing a governing board to conduct a removal
     proceeding    and to adjudge an office vacant over objection,  it may con-
     stitutionally  authorize the board to replace a director who acknowledged
     the vacancy of his office or whose office has been declared     vacant by
     proper judicial order.




                                                p.   1053
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     :




0,       The Honorable    Eugene   T.   Jenson.   page 4      (H-226)



              Subsection (a) of each section declares      a person disqualified to serve
         on the board of a district in five situations,      one of which was the subject of
         Letter Advisory    No. 53, supra.       If this provision were to be interpreted      so
         as to disqualify those already elected to a board on August 27, 1973, when
         Senate Bill 807 became effective,      we think it would be considered      unconsti-
         tutional by the courts as violative of Article      1. 16.  of the Texas Constitution,
         which disqualifies    retroactive  legislation   adversely  affecting vested rights.
         See Deacon v. City of Euless,      405 S. W. 2d 59 (Tex. 1966); compare Childress
         County V. Sachse,     310 S. W. 2d 414 (Tex. Civ. App. , Amarillo,     1958, writ ref.,
         n. r. e., 312 S. W. 2d 380).

              But it should not be assumed that the Legislature      intended an unconsti-
         tutional result.    53 Tex. Jur. 2d. Statutes,      182.  The Act is subject to the
         reasonable    construction  that it applies prospectively   only so that it affects
         directors   either elected or appointed to office after its effective date or,
         though elected earlier,    change their status and become disqualified      after
         that date.

             Subsection (a)(2) provides that a person is disqualified if “he is related
         within the third degree of affinity or consanguinity    to a developer of property
         in the district,  any other member of the governing board of the district,     or
         the manager,     engineer, or attorney for the district. ” The term “developer”
         is defined.

             The wisdom   of a legislative  enactment is for the Legislature.      Our only
         concern with the disqualifications   of subsection  (a) is with their legality.  As
         we did in Letter Advisory    No. 53, we here seek to determine the course the
         courts would probably take if presented     with the questions.

             We have no doubt that a reasonable   basis can exist for guarding the
         governing boards of public bodies from nepotic influences,     particularly where
         one family member is likely to dominate the will of another.      Although a dis-
         qualification extending through the third degree of affinity goes far, we cannot
         say that it would be held by the courts to be unreasonable   as a matter of law.

             Subsection (a)(2) provides a disqualification    for anyone who is an employee,
         or was “within the two years immediately       preceding his election or appointment
         to the board an employee of any developer       of property in the district or any dir-
         ector, manager,    engineer,  or attorney for the district.”    (Emphasis   added)




                                                  p.   1054
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           .'.
    'I .




                 The Honorable    Eugene   T.   Jehson,   page   5      (H-226)
      ..



                     We are of the opinion that insofar    as this disqualification   depends
                 upon present status,   it probably will be upheld by the courts.     Although
                 the strong presumption     normally accorded   legislative  acts is weakened
                 where basic political   rights are involved,  [Compare     Kramer v. Union
                 Free School Dist. No. 15, 395 U.S. 621 (1969); Bullock v. Carter,         405
                 U.S. 134 (1972): Williams    v. Rhodes.   393 U.S. 23 (1968)l nevertheless,
                 in our opinion the disqualification  is not on its face insupportable    as a
                 matter of law.

                      We have concluded,      however,   that three other disqualified-class
                 descriptions,    in addition to the one considered    by Letter Advisory       No. 53,
                 cut such a wide swath as to run afoul of Equal Protection           provisions   of
                 the state and federal conetitutlons.       Texas Constitution,     Article 1. 5 3,
                 U. S. Constitution,    Amendment 14.. As we discussed         in Letter Advisory
                 No. 53, “Equal protection requires that a legislative          classification
                 should be reasonable      for the purpose of the legislation,     and must not be
                 arbitrary.   ” Bjorgo v. Bjorgo.      492 S. W. 2d 143 (Tex. 1966); Buchanan
                 v. State, 480 S. W. 2d 207 (Tex. Crim.       1972); McDonald V. Board of
                 Election Commissioners        of Chicago,   394 U.S.  802 (1969); Reed v. Reed,
                 404 U.S.    71 (1971).

                      We feel that the courts would find the subsection   (a)(2) disqualification to
                 offices of those who might have been employees      of a developer of property in
                 the district, or of a director,  manager,  engineer or attorney of the district
                 within two years immediately    preceding his election or appointrnent,to be
                 unreasonably   broad for the purpose of the legislation   and to be arbitrary.
                 This conclusion   is consistent with our reasoning in Letter Advisory No. 53.

                     The Legislature did not simply disqualify    the present dual status of
                 employee-director.   It made ineligible as directors    those who law been
                 so employed within a two year period.     In Letter Advisory      No. 53, com-
                 menting upon the similar restriction   of subsection   (a)(5)(B),   we said:

                              “Assuming      the purpose of the . . . statute to be to
                         eliminate    conflicts of interest between developers.     on the
                         one hand, and boards of directors       of water districts  on the
                         other, we can see no reasonable       relationship  between the
                         classification    of [the subsection] and that purpose. ”




                                                          p.   1055
,-   \,
          The Honorable    Eugene   T.   Jenson,   page 6      (H-226)




              We do not believe that there is a reasonable basis for holding that
          a person,   as for example,  a secretary    who worked for an attorney two
          years ago, should be disqualified    from serving as a director      of a dist-
          rict merely   because the attorney now represents     the district,   in the
          absence of a factual showing of some continuing relationship        or influence
          which would affect her ability to serve.     And compare Cleveland Board
          of Education v. La Fleur,          u. s. -,      42 LW 4186, (January 21, 1974).

               The same holds true for the classification       of subsection  (a)(4) which
          not only disqualifies     those who serve simultaneously      as an attorney,
          consultant.    engineer,    a manager,  architect.   or in some other professional
          capacity for the board or for a developer in connection with property
          within the district,     but those who have previously    served in such capa-
          cities within a two year period.       We think the proscriptions     against
          previous    service and previous     employment    are invalid.

               Letter Advisory    No. 53 was addressed       only to subsection   (a)(5)(B) of
          Senate Bill 807.    We went no further than the requested opinion required.
          and the validity of other particular      provisions,   including that of subsec-
          tion (a)(5)(B),  was not placed before us for specific review.         It suffers,
          however,     from the same deficiency as the others discussed         above, i. e.,
          not only are persons presently       contracting with the governing board of
          the district barred from office,       but also those who contracted with it
          during the two years precedingtheir         election or appointment    (notwith-
          standing that such contracts      may have long since terminated).        In our
          opinion, disqualification     for the office cannot be reasonably     based upon
          prior contractual    relationships    over such an extended period without the
          existence   of other factors indicating an inability to serve the district
          without bias.

              We have examined   subsections       (c) of the statutes,   the penal provisions,
          to determine their constitutionality.       They provide:

                      “Any person who willfully violates the provisions
                  of Subsection  (a) of this section is guilty of a misdemeanor,
                  and on conviction,   shall be fined not less than $100 nor
                  more than $1,000. ”

          We have difficulty with this provision because Subsection           (a) does no more
          than describe those who are disqualified.   Disqualification          hinges, not neces-




                                                   p.   1056
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            .   ..   .




                         The Honorable       Eugene    T.   Jensen.        page 7   (H-226)




                         sarily on the commission  of an act, but often on the relationship of a director
                         to another person or business entity, a relationship  over which the director
                         might have no control.

                                      “A [criminal]   statute which either forbids or requires
                                      the doing of an act in terms so vague that men of
                                      common intelligence     must necessarily  guess at its
                                      meaning and differ as to its application,   violates the
                                      first essential  of due process.”

                         Connally v. General Construction   Co., 269 U.S. 385, 391 (1926).    A statute
                         which purports to impose criminal sanctions must be certain and definite
                         in its proscriptions to comply with due process requirements.     See Texas
                         Liquor Control Board v. Attic Club, 457 S. W. 2d 41 (Tex. 1970); Attorney
                         General   Opinion    H-15    (1973).

                                However,      the courts are required to adopt such a construction    of penal
                         statutes,   if possible,   to uphold their constitutionality. State v. Shoppers
                         World,    Inc.,  380 S. W. 2d LO7 (Tex. 1964).

                                 In our opinion, Subsections    (c) may and should be interpreted    to pro-
                         vide that it is a penal offense to willfully,    i. e., knowingly,  occupy an office
                         as director    of a district and exercise   the rights of a director when disqualified
                         under subsection     (a).   We are not authorized to question the wisdom of the
                         legislation.    Putting that question aside,    we cannot say that the statute,  so
                         construed,    is too vague to give the constitutionally    required notice.

                                It has been suggested that the operation of Senate Bill 807 would
                         unconstitutionally  impair the obligations   of contracts  behveen the district
                         and third parties if it required the vacation of office by the district’s   board
                         of directors   and no’others  owning property within the district could legally
                         qualify for election or appointment.     But such a situation would be no differ-
                         ent from that which would occur if qualified persons refused to be candidates,
                         or if, though elected or appointed,    they refused to meet and act as directors.




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                                                                      p.    1057
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The Honorable     Eugene    T.   Jenson,   page 8      (H-226




    We do not see that the mere enactment of this legislation has impaired
the obligations   of any valid contracts.     Compare Texas State Board of Barber
Examiners     v. Beaumont Barber College,        Inc., 454 S. W. 2d 729 (Tex. 1970).
Moreover,     subsection  (e) is specifically  designed to protect innocent persons
dealing with the board of directors      of a district.

    As we pointed out in Letter Advisory           No. 53, though Senate Bill 807
contains no severability     provision.    Article   5429b-2,     3.12, V.T.C.S.,       the
Code Construction      Act, provides    for severability     of code provisions    if feasible.
We do not think the probable unconstitutionality           of the prior status provisions
of subsections    (a)(2), (a)(5)(A),  or (a)(5)(B),    or, for that matter,    the possible
unconstitutionality    of the penal provisions,      if in fact subsequently    found by
a court, will invalidate the rest of the provisions.           We think valid and work-
able statutes will remain.

                                   SUMMARY

              Additions to the Water Code by Senate Bill 807. 63rd
         Leg..   providing for the replacement   of directors who
         vacate their office because of disqualification,    are con-
         stitutional.   The penal provisions,  as construed and
         interpreted in this opinion are constitutional.    Certain
         of the disqualifications,  having no reasonable   basis,
         are unconstitutional.

                                                  Very   truly yours,




DAVID M. KENDALL,            Chairman
Opmion Committee



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