  .           I




                                      The Attorney           General of Texas
                                                        November 4, 1981
MARK WHITE
Attorney General



Supreme Court Building
                                    Honorable James S. McGrath               Opinion No. w-383
P. 0. Box 12549                     Criminal District Attorney
Austin, TX. 79711                   Jefferson County Courthouse              Re:      Interpretation     of
5121475-2501                        Beaumont, Texas 77704                    legislation creating Jefferson
Telex 910/974-1367
                                                                             County Drainage District No. 7
Telecopier   51214750266
                                    Dear Mr. McGrath:

1807 Main St.. Suite 14W                 You ask three questions regarding the provisions for choosing
Dallas, TX. 75201                   directors of the Jefferson County Drainage District No. 7.
21417428944

                                         In 1962, the Texas Legislature created the Jefferson County
4824 Alberta Ave.. Suite 160        Drainage District No. 7, a special district established pursuant to
El Paso. TX. 79905                  article XVI, section 59 of the Texas Constitution. Acts 1962, 57th
91515334464                         Leg., ch. 34, at 98.      Section 4 of the act provided that the
                                    commissioners of the district be appointed by the Jefferson County
1220 Dallas Ave., Suite 202
                                    Commissioners Court with no more than one commissioner appointed from
Howlo”,   TX. 77002                 any one municipality so long as five municipalities existed within the
713/65ooSS6                         district. At the district's inception, then, the only method of
                                    selecting district commissioners was by appointment by the county
                                    commissioners court. However, section 4 was amended in 1977 to permit
606 Broadway, Suite 312
Lubbock. TX. 79401
                                    the election of the district's commissioners. The 1977 amendment
8061747-522-9                       provides, in pertinent part, as follows:

                                              ...[T]he provisions of Sections 56.061 through
4309 N. Tenth. Suite S
                                              56.063,   Water   Code...shall  apply   to   the
McAllen, TX. 79501
51218824547
                                              Commissioners of the District. Section 56.064,
                                              Water Code. as amended. shall auolv to this
                                              District, except that ;he Commissioners Court
200 Main Plaza, Suite 400                     shall order the election on petition of at least
San Antonio. TX. 79205
                                              20 percent of the real property taxpayers of the
51212254191
                                              district, and that five Commissioners shall be
                                              elected at lame if an election is ordered under
An Equal      Opportunity/                    that section...: (Emphasis added).
Afflrmative       Action Employer
                                    Acts 1977, 65th Leg., ch. 614, 01, at 1520. Section 56.061 of the
                                    Water Code provides that the commissioners (or "directors") of the
                                    district be appointed by the county commissioners court. Section
                                    56.064 of the Water Code declares that "[o]n petition of a majority of
                                    the real property taxpayers of a district requesting an election of
                                    district directors, the commissioners court shall immediately order an
                                    election...." (Emphasis added).




                                                                   p. 1295
Mr. James S. McGrath - Page 2    (m-383)



     You request our opinion concerning the proper interpretation of
the 1977 amendment. First, you ask whether the 1977 amendment, which
authorizes 20 percent of the real property taxpayers of the district
to require the election of district directors, constitutes an improper
delegation of legislative authority to private citizens both to make
and to suspend the law in violation of the Texas Constitution. We
hold that the amendment does neither.

     Article I, section 28 of the Texas Constitution provides that
"[n]o power of suspending laws in this State shall be exercised except
by the Legislature." Article III, section 1 of the Texas Constitution
declares that "]t]he Legislative power of this State shall be vested
in a Senate and House of Representatives...." It has been suggested
that the 1977 amendment, by empowering 20 percent of the real property
taxpayers of the district to determine the method of governance of the
drainage district, authorizes them to suspend the special law
provision   on appointment of the district's directors and thereby
authorizes an unconstitutional delegation of legislative authority to
a group of private citizens.

      Early on, the Texas Supreme Court recognized the distinction
between a delegation of legislative power to make a law and the
discretionary exercise of a power conferred by a law. In State v.
Swisher, 17 Tex. 441 (1856). the supreme court struck down as being an
unconstitutional delegation of legislative authority a statute which
empowered the voters of each county to determine by election whether a
certain prohibition on the sale of liquor would be effective in their
respective counties. In City of San Antonio v. Jones, 28 Tex. 19
(1866) 3 the supreme court upheld a statute which authorized a
municipality, after an affirmative vote of its citizens, to subscribe
to stock in a railroad company. The court reaffirmed State v.
Swisher, w.     but distinguished it in the following passage:

          The legislature may grant authority as well as
          give commands, and acts done under its authority
          are as valid as if done in obedience to its
          commands.   Nor is a statute, whose complete
          execution and application to the subject matter
          is, by its provisions, made to depend on the
          assent of some other body, a delegation of
          legislative power. The discretion goes to the
          exercise of the power conferred by the law, but
          not to make the law itself.


               The law, in such cases, may depend for its
          Practical efficiency on the act of some other body
          or individual; still, it is not derived from such
          act,   but   from   the   legislative   authority.
          Lenislation of this character is of familiar use,
          and occurs whenever rights or privileges are
          conferred upon individuals or bodies, which may be




                                p. 1296
Mr. James S. HcGrath - Page 3   (MW-383)



          exercised or not in their discretion. And if it
          may be left to the judgment of individuals or
          private corporations whether they will avail
          themselves of     privileges  conferred by    the
          legislature, there is certainly no valid reason
          why the same may not be done with citizens of a
          town or district, who, as a class, are to be
          affected by the proposed act. (Emphasis added).

28 Tex. at 32-33.

     Thus, the Texas Court of Criminal Appeals and the Texas Supreme
Court struck down as being an unconstitutional delegation of
legislative authority a statute which authorized voters in each county
to decide whether pool halls should be prohibited in their respective
counties. Lyle v. State, 193 S.W. 680 (Tex. Grim. App. 1917); Ex
parte Mitchell, 177 S.W. 953 (Tex. 1915). Cf. Brown Cracker 6 Candy
Co. v. City of Dallas, 137 S.W. 342 (Tex, 1911) (city ordinance
regulating prostitution); Ex parte Farnsworth, 135 S.W. 535 (Tex.
Grim. App. 1911) (city ordinance governing rate-setting procedures).

     At the same time, Texas courts have recognized that statutes
which confer powers to particular political subdivisions only upon an
affirmative vote of those persons affected thereby are not
impermissible exercises of legislative authority. A statute which
authorized municinalities to take control of their schools won an
affirmative vote of the citizens therein was upheld in Werner v. City
of Galveston, 7 S.W. 726 (Tex. 1888), rehearing denied, 12 S.W. 159
(Tex. 1888).    The statute was challenged as an unconstitutional
delegation -of legislative authority to the voters of the respective
municipalities. The supreme court declared:

          It   is  a   well-settled   principle   that   the
          legislature cannot delegate its authority to make
          laws by submitting the question of their enactment
          to a popular vote; and in State v. Swisher, 17
          Tex. 441, this court held an act of the
          legislature which authorized the counties of the
          state to determine by popular vote whether liquor
          should be sold in their respective limits to be
          unconstitutional. But it does not follow from
          this that the legislature has no authority to
          confer a power upon a municipal corporation, and
          to authorize its acceptance or rejection by the
          municipality according to the will of its voters
          as expressed at the ballot box. (Emphasis added).

7 S.W. at 727.

     In Riley v. Town of Trenton, 184 S.W. 344 (Tex. Civ. App. -
Texarkana 1916, writ ref'd), the court approved a statute which
provided that the benefits of then chapter 11 of title 22 of the
Mr. James S. McGrath - Page 4     (MW-383)



Revised Civil Statutes relating to cities and towns applied to any
city when either the governing body submitted the question to the
voters or one hundred qualified voters petitioned for an election and
the majority of votes were cast therefor. The court declared:

          In voting to adopt certain statutory provisions,
          the voters do not in reality adopt the law; they
          merely bring about a situation to which the law by
          its terms has been made applicable. The law is
          the finished product of the Legislature, and it
          only awaits the existence of the conditions to
          which by its terms it is made applicable in order
          to be enforced.

184 S.W. at 346. See also Trimmier v, Carlton, 296 S.W. 1070 (Tex.
1927); Spears v. City of San Antonio, 223 S.W. 166 (Tex. 1920); Graham
v. City of Greenville, 2 S.W. 742 (Tex. 1886).

     Admittedly, a petition is ordinarily used only       to call an
election to determine whether a proposition will effect some change,
rather than to effect the change itself. Such a procedure, though,
has received the imprimatur of the Texas Supreme Court. In Graham v.
City of Greenville, B,         the supreme court held effective an
annexation accomplished by means of a petition, in spite of the fact
that the statute under which the annexation was authorized provided
that “[wlhenever a majority of the inhabitants qualified to
vote...shall vote in favor of [annexation].‘I 2 S.W. at 743.
(Emphasis added). The signing of the paper was the only mode of
election resorted to for determining the question of annexation.
Apparently, some of those who signed   were under the impression  that
the purpose of the petition was merely to call an election to
determine the question of annexation, not to effect it. The court, in
declaring that the statute did not provide the usual prerequisites for
an election, such as an order and notice therefor and a specification
of the time, place, and manner it was to be held, stated:

               The legislature, having power to provide by
          general law for the extension of the corporate
          limits of cities of 10,000 inhabitants or less,
          with the assent of a majority of the residents of
          the territory proposed to be annexed, has
          certainly the right to prescribe the manner in
          which their wishes shall be ascertained. The
          constitution says that in all elections by the
          people the vote shall be taken by ballot, but does
          not provide that the will of a limited number of
          people upon any subject in which they may be
          interested shall be ascertained in no other way
          except by a public election. We are pointed to no
          clause in that instrument which, either directly
          or by implication, compels the legislature, in
          case it proposes to ascertain whether the people




                                p. 1298
Mr. James S. McGrath - Page 5     (MW-383)



          living near a city wish to be annexed to it, to
          submit that question to them at a public election.
          With   the   unlimited   power    over   municipal
          corporations possessed by the legislature, it may
          provide for an extension of their limits upon
          petition of a majority of persons residing within
          the territory proposed to be annexed, or upon
          their request ascertained in any other manner, as
          well as by votes given at a public election.

2 S.W. at 743.

     Nor does the fact that the 1977 amendment authorizes a minority
of real property taxpayers in the district to require the election of
directors render the amendment unconstitutional. You argue that the
legislature is without power to authorize a minority of real property
taxpayers to change the method of selection from one of appointment to
one of election. We have found no authority in support of this claim;
Washington ex rel. Seattle Title Trust Company v. Roberge. 278 U.S.
116 (1928) and progeny cited in your brief are inapposite. Such cases
are concerned with zoning ordinances and turn on property rights under
the fifth and fourteenth amendments to the U.S. Constitution.

     The legislature is clearly empowered to determine that the
requisite number of signatures on a petition to call an election be
less than a majority.     In discussing the number of petitioners
necessary to call a local option election, the Texas Supreme Court
stated as follows:

          According to the varying views of legislative
          bodies, these numbers are sometimes few and
          sometimes many....The     number   ought   to   be
          sufficient to give some assurance that there
          exists a desire on part of a large proportion of
          the voters for the change to be voted for, and
          that there is a probability that, in case the
          election be ordered, the proposition will carry.

Scarborough v. Eubank, 53 S.W. 573, 574 (Tex. 1899). For example, the
legislature has provided that a petition signed by 20 or a majority of
the legally qualified voters of each affected school district may
effect a consolidation election. Educ. Code 9519.232-19.234. See
also V.T.~C.S. arts. 966 (a petition signed by at least 50 electors
required for incorporation of cities and towns of certain population).
990 (a petition signed by at least 26 taxpaying voters necessary for
special election for filing vacancy in municipal offices of any
incorporated city or town), 1086 (a petition signed by at least
two-thirds of the property owners affected thereby necessary to effect
powers of towns, cities, and villages with respect to street
improvements), 6716-1 (a petition signed by a number equal to at least
10% of the qualified voters of county who voted for governor at the
last general election necessary for adoption of Optional County Road




                                p. 1299
Mr. James S. IicGrath- Page 6    (NW-383)



Law of 1947). 7048a (a petition signed by at least 10% of the
qualified property taxpaying voters necessary for levy for farm to
market and lateral roads); Alto. Bev. Code $251.11 (a petition signed
by a number equal to at least 35% of the qualified voters of county
who voted for governor at the last general election necessary for
local option liquor election).

     Moreover. state novernments have areat flexibilitv in determinine
whether "nonlegislati~e" offices be appointed or elected. See Sailors
v. Board of Education, 387 U.S. 105 (1967); Fortson v. Morris, 385
U.S. 231 (1966). This office has already declared that the duties of
the commissioners of Jefferson County Drainage District No. 7 fall
within the ambit of the U. S. Supreme Court's description of a
"nonlegislative" local governing body. Attorney General Opinion H-855
(1976). While it is true that a minority of the real property
taxpayers is empowered, by signing a petition therefor, to compel the
county commissioners court to call an election of drainage district
commissioners, the candidates receiving the greatest number of votes
of those cast will still take office. Moreover, it is important to
realize that the minority of real property taxpayers are not empowered
to appoint or elect the commissioners, but are empowered only to
determine that the commissioners be elected.

     Admittedly, a statute which provides that a petition is
sufficient to effect a change or determine a question rather than
merely to determine whether a proposition will effect a change is
unusual. Article I, section 2 of the Texas Constitution, which finds
political power inherent in the people, has been read to require a
majority to exercise that power. See Ramsey v. Dunlop, 205 S.W.2d 979
(Tex. 1947). However, the will ofthe majority is not undermined by a
statutory procedure for increasing popular control over the choice of
public offices.    With respect to a delegation of legislative
authority, the courts have held that a law must be perfect, final and
decisive in all of its parts, and the discretion that is given must
relate only to its execution. McCombs v. Dallas County, i36 S.W.2d
975, 979 (Tex. Civ. App. - Dallas), writ ref'd, 140 S.W.2d 1109 (Tex.
1940). In the instant statute, a minority of real property taxpayers
is without authority to make a law or to appoint public officers, but
is authorized only to compel that an election be held for the purpose
of selecting those public officers. The statute is '!final" and the
discretion conferred does relate only to its execution.

     We believe, therefore, that the 1977 amendment does not effect
either an unconstitutional delegation of legislative authority nor a
suspension of laws in contravention of the Texas Constitution, that
the amendment is most accurately characterized as a law which is made
effective as to a political subdivision only after action taken by the
people affected thereby, that it merely authorizes the people to
establish "instrumentalities or agencies upon which the law can
operate" and relates to "matters of administration and municipal
control." Ex parte Francis, 165 S.W. 147, 171 (Tex. Grim. App.
1914)(dissent), that it concerns a matter of "local regulation" for




                                p. 1300
Mr. James S. McGrath - Page 7    (Mw-383)



which the people may fairly be supposed to be "more competent to judge
of their needs than a central authority." Johnson v. Martin, 12
S.W.321, 323 (Tex. 1889).

     Second, you ask whether the 1977 amendment to the special
legislation creating the district should be construed to mean that the
election be conducted at large or by place with each place reserved to
a municipality within the district.      Section 1 of the amendment
amending section 4 of the original act creating the district sets
forth the following:

          ...five Commissioners shall be elected at large if
          an election is ordered under that section [i.e..
          Water Code 056.0641....After the expiration of the
          terms of the present Commissioners, no more than
          one Commissioner shall be appointed and/or elected
          from any one municipality as long as five
          municipalities    exist  within    the   district.
          (Emphasis added).

1977 Acts, 65th Leg., ch. 614. Il. at 1520. It appears from your
brief that five municipalities do in fact presently exist within the
district. You suggest that the two provisions are hopelessly in
conflict.

     It is a cardinal rule of statutory construction that, when new
provisions are introduced into a statute by amendment the amended act
and all its sections, new and old, must be construed as a harmonious
whole, all sections mutually acting upon each other.       Shipley v.
Floydada Independent School District, 250 S.W. 159, 160 (Tex. Comm'n.
App. 1923). An amendment must be interpreted in such a way as to give
it effect, Independent Life Insurance Company v. Work, 77 S.W.Zd 1036
(Tex. 1934). rather than render it useless. Stolte P. Karren, 191
S.W. 600, 606 (Tex. Civ. App. - San Antonio 1916, writ ref'd). The
provision contained in the act originally creating the district
stipulated that no more than one commissioner shall be appointed from
any one municipality as long as five municipalities exist within the
district. The 1977 amendment set forth that the election, if held, be
at large.    That the legislature intended the provisions to be
construed together and considered as a whole is clear; the provision
of the original act which set forth that no more than one commissioner
be appointed from any one municipality was amended to be "appointed
and/or elected" at the same time that the provision for election was
included.

     It is also a rule of statutory construction that the ordinary
signification be applied to words, except words of art or words
connected with a particular subject matter.    V.T.C.S. art. 10. The
phrase "at large" has been defined as "[nlot limited to any particular
place, district, person, matter, or question." Black's Law Dictionary
114 (5th ed. 1979). The only reasonable interpretation which would
give effect to both provisions is one which provides that the election




                                p. 1301
Mr. James S. HcGrath - Page 8    (MU-383)



be at large. i.e., that candidates run without regard to place, but
that the top five vote-getters, no two of which are from the same
municipality, would take office. In other words, if the two top
vote-getters were both from Municipality A with the next four top
voter-getters each from one other municipality within the district,
then the second highest vote-getter from Municipality A would not take
office. The first and third through sixth top vote-getters would take
office. We concede that such interpretation could have the practical
effect of creating places for each commissioner with a place reserved
for each of the five municipalities within the district.        It is
reasonable to conclude that the legislature, in adopting such a
proviso, intended that the smaller municipalities be adequately
represented.

     You suggest in your brief that, if both provisions of the
amendment are given effect, the principle of “one man--one vote” may
be violated. You indicate that the provision permitting no more than
one commissioner to be elected from each municipality within the
district would effectively create districts within the drainage
district to which the “one man--one vote” principle would apply.
While this proviso may have the practical effect of creating places,
it would not, however, create districts within the drainage district.
All of the qualified voters within the district are still entitled to
vote for all of the offices; voters in, say, Municipality A will vote
not just for a candidate from Municipality A, but rather they will
vote for five candidates for the five offices. And, as stated
earlier, the top five vote-getters with no two of which from the same
municipality will take office.

     And finally, you ask, if the 1977 amendment does not violate
constitutional principles and an election were held, would the
electorate be restricted to “property-owning taxpayers” of the
district. We conclude that it would not.

     The 1977 amendment provides that section 56.064 of the Water Code
shall apply to this district, except that, upon the presentation of a
petition of only 20 percent of the “real property taxpayers,” the
county commissioners court shall order an election of district
commissioners. Neither the special legislation creating the district
nor the Water Code itself requires that the electorate be restricted
to “real property taxpayers.” Rather, the class of persons who are
authorized to sign a petition the presentation of which would require
the county commissioners court to order an election is so restricted.
With respect to the electorate, section 56.064(a) of the Water Code
declares that “[t]he election shall be held as other elections under
this chapter.” Section 56.029 of the Water Code, setting forth the
conduct of the elections, does not indicate what qualifications will
be imposed upon voters; however, Water Code section 50.002, which
applies to general law districts in the Water Code including drainage
districts, does.




                                p. 1302
Mr.   James S. McGrath - Page 9     Ml-383)



                 The qualifications of voters in district
            elections are as specified in the state and
            federal constitutions....

Article VI, section 2 of the Texas Constitution provides that every
person who is not subject to the disqualifications set forth in
section 1 of article VI of the constitution, is at least twenty-one
years old, is a citizen of the United States, and has lived in Texas
one year next preceding an election and the last six months within the
district or county in which the person seeks to vote be deemed a
qualifled elector.     The section further provides for annual
registration requirements which are not to be            considered a
qualification of an elector. See also Elec. Code 655.02, 5.05~. The
twenty-sixth amendment to the United States Constitution has the
effect of lowering the minimum age of those persons who are qualified
electors in state and federal elections to eighteen.

     With respect to the provision restricting the class of persons
who are authorized to sign a petition to “real property taxpayers”
neither the United States Supreme Court nor the Texas Supreme Court
has addressed the issue whether the restrictions imposed on those
persons is constitutionally permissible. We note, however, that the
United States Supreme Court has expressly approved a state voting
scheme employed in the election of directors of a special
limited-purpose district, a water reclamation district, whereby voting
eligibility was limited to landowners and votes apportioned according
to the amount of land each voter owned. Ball v. James, 49 U.S.L.W.
4459 (1981). See also Salyer Land Co. v. Tulare Lake Basin Water
Storage District, 410 U.S. 719 (1973) [hereinafter referred to as
Salyer]; Associated Enterprises, Inc. v. Toltec Watershed Improvement
District, 410 U.S. 743 (1973) (per curiam).

     It is suggested that the phrase “real property taxpayer” is
unconstitutionally vague in that it fails to precisely delimit the
class of persons eligible to sign the petition. Specifically, it is
suggested that it is unclear whether nonresidents or corporations are
permitted to sign the petition, though they would clearly not be
enfranchised to vote in the commissioners’ election. In Salyer, the
court explicitly approved a voting scheme facially limited to
“landowners” which effectively enfranchised both nonresidents and
corporations. “The franchise is extended to landowners, whether they
reside in the district or out of it, and indeed whether or not they
are natural persons who would be entitled to vote in a more
traditional political election.” 410 U.S. at 730. Relying on Salyer,
we conclude that a court would probably find permissible the
qualifications for petitioners set forth in section 56.064 of the
Water Code.

                                  SUMMARY

                 The 1977 amendment to the special legislation
            creating the Jefferson County Drainage District




                                  p. 1303
Mr. James S. McGrath - Page 10     (MN-383)



          No.   7 neither constitutes an       impermissible
          delegation of legislative authority nor effects a
          suspension of law.       The provisions of     the
          amendment detailing the election procedures should
          be interpreted together, giving effect to both.
          The class of persons qualified to vote in the
          election of     district   commissioners is    not
          restricted to "real property taxpayers."




                                        MARK      WHITE
                                        Attorney General of Texas

JOHN W. FAINTER, JR.
First Assistant Attorney General

RICHARD E. GRAY III
Executive Assistant Attorney General

Prepared by Jim Moellinger
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Susan L. Garrison, Chairman
Jim Moellinger




                              p. 1304
