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DAN MORALES                              July 13,199Z
 ATTORNEYGENERAL
    Honorable D. R. ‘Tom” Uher                 Opinion No. DM-140
    Chairman
    Committee on Redistricting                 Re: The status of the West Braxoria
    Texas House of Representatives             County Drainage District, and related
    P. 0. Box 2910                             questions (RQ-326)
    Austin, Texas 78768-2910

    Dear Representative Uher:

            You have requested our opinion regarding the current status of the West
    Braxoria County Drainage District. That district was created pursuant to article
    XVI, section 59 of the Texas Constitution by a special law enacted in 1969. House
    Bill 273, Acts 1969, 61st Leg., ch. 48, at 139-44, designated the commissioners court
    of Braxoria County “as the governing body of [the] district.” In 1981, the statute was
    amended to provide for “a board of directors composed of five members who shall
    be elected from single-member districts to serve for staggered terms of two years
    and until their successors are elected and have qualified for office.” S.B. 21, Acts
    1981, 67th Leg., 1st C.S., ch. 6, at 58-63. The 1981 legislation directed the existing
    governing board, the commissioners court, “[wlithin 90 days after the effective date
    of this Act,” to “adopt an order establishing the boundaries and numbers for single-
    member board districts.” Id. 8 6(a), at 62. The board was also enjoined to “call and
    hold an election on the first Saturday in April 1982, to elect five members to the
    board.” Za! You indicate that the commissioners court has never taken any action
    to implement the requirement of section 6 for establishing single-member districts
    or for holding an election. You ask whether the commissioners court is at present
    “the legally authorized body to act for said drainage district.”

           Senate Bill 21 provides, in pertinent part:

                  The commissioners court serving as the governing board of
              the West Brazoria County Drainage District on the effective
              date of this Act shall continue in office and shall exercise the
              powers and duties and perform the functions of the board of




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Honorable D. R. ‘Tom” Uher - Page 2          (DM-140)




          directors of the district until the first elected board members
          have qualified for office.

               . .. .


               The pe.rsons serving on the board of directors of the West
          Brazoria County Drainage District on the effective date of this
          Act shall cominue in office and shall exercise the powers and
          duties and perform the functions of board members tmtil the
          first elected board members have qualified for office.. . .

Id OQ5,6(b), at 62. Since section 6 of the 1981 legislation was never implemented,
in that neither an order establishing single-member districts nor an order calling for
an election to select board members was ever issued, the statute makes clear that
“the commissioners court serving as the governing board” of the district has
continued to function as the governing board since 1981. Although the statute
permits some ambiguity, since it speaks of “the commissioners court serving as the
governing board . . . on the effective date if this Act,” and of “[t]he persons serving
ontheboardofdirectors...      on the effective date of this Act,”we believe that it was
the intent of the legislature to constitute the individual commissioner pa&onr,
rather than the specificpersonr who held those positions on August 14,1981, as the
holdover board for the district. Thus, it is the present commissioners court of
Brazoria County, rather than the commissioners court as it existed on August 14,
1981, that makes up the current board of the district.

        You also ask whether the commissioners court may establish a tax rate for
the district and call an election for its approval. You indicate that in 1969 the
affected electorate “voted for the creation of said drainage district but turned down
all taxing authority.

        Section 5 authorizes the governing board to “levy and cause to be collected a
tax not exceeding 10 cents on each SlOOvaluation of taxable property subject to
district taxation within the district.” Such tax may not be levied or assessed,
~however,“until authorized at an election called for such purpose by said board, in
the manner provided by Section 4, hereof, at which a majority of the qualified
electors . . . vote in favor of the levy and collection of such tax.” Id. 0 5, at 59.
Nothing in the statute prohibits the governing board from setting a tax rate and
cdling an election merely because a prior election has resulted in disapproval of the




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Honorable D. R. ‘Tom” Uher - Page 3           (DM-140)




tax. We conclude, therefore, that the commissioners court, as the current governing
board of the district, may establish a tax rate and call an election for its approval.

        Your last question is whether the commissioners court may “establish single
member districts for the election of drainage commissioners without further
legislation beii passed.” Certainly, the commissioners court, acting as the current
board, may not do so pursuant to section 6(a) of Senate Bill 21, since that provision
sets the election for the Crst Saturday in April 1982. Section 2 of Senate Bill 21,
however, provides, in pertinent part:

               After each decennial census, the board shall divide the area
          of the district into five single-member districts that are compact,
          contiguous, and as nearly equal in population as is
          practicable. . . .

             An election shall be held in the district on the first Saturday
          in April of each year to elect the appropriate number of
          members to the board.

Id 8 2(c), (d), at 58. Ordinarily, we might be constrained to construe subsections
2(c) and 2(d) in harmony with subsection 6(a) to infer that the redistricting and
election provisions of the statute were intended to be applicable only to the election
contemplated for April 1982. Since the enactment of Senate Bill 21, however, a new
“decennial census” has been held, and the results thereof armounced, so that it
seems reasonable to require whatever “board” exists to comply anew with the
requirements of subsections 2(c) and 2(d). As we have stated, the current “board” is
the commissioners court of Brazoria County. Accordingly, the board is in a position
to, and, in our opinion, is commanded, to comply with those requirements by
dividing the area into “five single-member districts” based on the 1990 census, and
calling an election for the first Saturday in April 1993, to fill the directorships from
those districts.

                                 SUMMARY

              The commissioners court of Brazoria County at present
          constitutes the governing board of the West Brazoria County
          Drainage District. As such, it may set a tax rate and call an
          election to seek voter approval therefor. The commissioners



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Honorable D. R. ‘Tom” Uher - Page 4       (DM-140)




         court, acting as the board, should establish single-member
         districts based on the 1990 census, and call an election for the
         first Saturday in April 1993.




                                                DAN      MORALES
                                                Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARYKELLER
Deputy Assistant Attorney General

RENEAHIcK!s
Special Assistant Attorney General

MADBLEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Rick Gilpin
Assistant Attorney General




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