                               @ffice of tfy Plttornep @enera[
                                               Mate      of Zhxae
                                                November     6, 1998
DAN MORALES
 ATTORNEY
       GENERAL
   The Honorable Sherry L. Robinson                        Opinion No. DM-484
   Criminal District Attorney
   Waller County                                           Re:      Whether Water Code section 53.063(2),
   836 Austin Street, Suite 105                            requiring a fresh-water-supply    district supervisor
   Hempstead, Texas 77445                                  to own land in the district, and a parallel provision
                                                           in the Brookshire-Katy         Drainage     District’s
                                                           enabling act violate the Equal Protection Clause
                                                           of the United States Constitution, and related
                                                           question   (RQ-983)

   Dear Ms. Robinson:

            Water Code section 53.063, which sets out qualifications for election to a tiesh-water-supply
   district board of supervisors, precludes an individual who does not own land in the district from
   serving as a supervisor. Likewise, the Brookshire-Katy Drainage District’s enabling act forbids an
   individual who does not own land in the district to sit on the district’s governing board. We
   understand you to ask about the constitutionality ofthe land-ownership requirements in Water Code
   section 53.063 and in the Brookshire-Katy Drainage District’s enabling act. We conclude that a
   court would evaluate the land-ownership requirements using the rational-basis standard. We are
   unable to ultimately dispose ofthe issue you raise, however, because we are uncertain as to the state
   purpose the land-ownership requirements are intended to farther. Consequently, we cannot evaluate
   the legitimacy of the state purpose. In addition, whether the Brookshire-Katy Drainage District (the
   “drainage district”) has a special limited purpose and whether its activities disproportionately   affect
   landowners-which        questions must be answered to determine whether the land-ownership
   requirements rationally further a legitimate state purpose-require     the resolution of fact questions,
   which cannot be answered in the opinion process.

           You also question whether the legislature has repealed Water Code section 53.063.                  We
   conclude that it has not.

            We begin our discussion by examining the drainage district’s enabling legislation and other
   statutes applicable to the drainage district, including Water Code section 53.063. The legislature
   created the drainage district in 1961 under Texas Constitution article XVI, section 59.’ The district’s
   enabling act establishes the district’s “solepurpose”: to reclaim and drain, as necessary, lands within




           ‘See Act of May 4, 1961,57th   Leg., R.S., ch. 203, 1961 Tex. Gen. Laws 402,402-05
The Honorable       Sherry L. Robinson       - Page 2          (DM-4E4)




the district.2 The legislature explicitly found that the achievement ofthis purpose would benefit “all
of the lands and other property included within the District” and that all lands and property likewise
would benefit from “the improvements that the District will purchase, construct, or otherwise
acquire.“) To accomplish these public benefits: the enabling act endows the district generally with
all of the powers and duties of a fresh-water-supply district created under article XVI, section 59 of
the Texas Constitution.s Moreover, the enabling act specifically authorizes the drainage district to
levy and collect taxes in accordance with general laws pertaining to fresh-water-supply districts.”



        The Brookshire-Katy Drainage District’s enabling act creates a board of five elected
supervisors to manage and control the drainage district’ and establishes three eligibility
requirements:

              1.        A candidate     for supervisor must be more than twenty-one               years of
                        age.

              2.        A candidate for supervisor must own land subject to taxation in the
                        drainage district.

              3.        A candidate for supervisor must reside in the area of the drainage
                        district from which he or she seeks election.*

          In addition to its enabling act, the drainage district is subject, among other things, to Water
Code chapters 49 and 53. Chapter 49, containing provisions generally applicable to all general-law
districts: authorizes the drainage district, among other things, to adopt “all necessary charges, fees,




         “See id. 5 2,196l   Tex. Gen. Laws 402,403

         ‘Id. $5 6,7,   1961 Tex. Gen. Laws 402,405.

         4See id. 4 6,196l   Tex. Gen. Laws 402,405

          ‘fd. $5 2,3,1961   Tex. Gen. Laws 402,403,404

         6See id. 5 5,196l Tex. Gen. Laws 402,405,      as amended by Act of May 4,1967,6Oth      Leg., R.S., ch. 220,s   1,
 1967 Tex. Gen. Laws 513,514.

          ‘See id. § 3, 1961 Tex. Gen. Laws 402,404.

          ?%e id.

            9Water Code chapter 49 applies to any district created under Texas Constitution article XVI, section 59, except
 for cetiain navigation districts, port authorities, or conservation and reclamation districts. Water Code 5 49.OOl(a)( 1).
 The drainage district is not excepted from chapter 49.




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The Honorable     Sherry L. Robinson        - Page 3               (DM-484)




or rentals, in addition to taxes, for providing or making available any district facility or service.“1°
Chapter 53 pertains more particularly to fresh-water-supply districts.” Under chapter 53, a fresh-
water-supply district may “conserve, transport, and distribute fresh water from any sources for
domestic and commercial purposes.“” Included within this broad authority are specific powers to
prescribe the terms on which a district will furnish water; to fix the rate users will pay to purchase
water from the district; and to regulate the distribution and use of water.13 Chapter 53 further
authorizes a fresh-water-supply district to acquire and repair sanitary sewer systems using revenues
from the sale ofbonds or other obligations, maintenance taxes, or operating revenues.14 Moreover,
chapter 53 permits a district to issue bonds to secure indebtednessI and, once it has done so, to “levy
taxes on all property in the district, whether real, personal, or mixed.“‘6

        Like the drainage district’s enabling act, Water Code section 53.063 establishes qualifications
for supervisors of a fresh-water-supply district:

             1.        He or she must be twenty-one years of age or older at the time of the
                       election.

             2.        He or she must own land within the district.

             3.           He or she must reside in the district.

Certainly, to the extent the drainage district’s enabling act sets eligibility standards that are
inconsistent with those in section 53.063, the enabling act’s standards pre~ail.‘~ Weneednot resolve
any inconsistencies here, though, because both section 3 ofthe enabling act and Water Code section




        “Id. 5 49.212.

         “See id. g 53.001(l).

         “Id. 5 53.101.

         “See id. 9 53.107(a).

         YSee id. $ 53.151(a); see also id. 5 49.107(a)        (requiring maintenance-tax election).

         ‘%e id. 5 53.171(a).

         161d.5 53.188.

         “See Act of May 4, 1961,57th      Leg., R.S., ch. 203, 5 2, 1961 Tex. Gen. Laws 402,403.




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The Honorable      Sherry L. Robinson        - Page 4             (DM-484)




53.063(2) require a candidate for election as a supervisor to own land within the district.‘s The land-
ownership requirement is the only requirement you question.

        As a preliminary matter, you question whether section 53.063 has been repealed; a repeal,
you suggest, would moot your primary question: whether the land-ownership requirement violates
federal equal protection mandates. We are uncertain as to how this would moot your primary
question because the land-ownership requirement is also in the drainage district’s enabling act.
Nevertheless, we will respond.

         We conclude that Water Code section 53.063 has not been repealed. The drainage district’s
superintendent avers that the statute book’s pocket part lists section 53.0631, not section 53.063, as
repealed. Nevertheless, the superintendent has been unable to find any record of section 53.0631,
and he therefore inquires whether thepocketpart’s   listingofsection  53.063 1 is a typographical error.
Certainly, where the publisher has made an error in printing a statute, we should disregard it.19 But
the pocket part is not in error. We have found no legislation repealing Water Code section 53.063.
Moreover, we have found that the legislature enacted section 53.0631 in 1973,20 amended it in
1975:’ and repealed it in 1989, ** Section 53.0631 set out several grounds for disqualifying a
supervisor;23 its substance now is found in Water Code section 50.026F4

         We proceed to consider your primary question.       You suggest that the land-ownership
requirement violates the Equal Protection Clause of the Fourteenth Amendment to the United States
Constitution by distinguishing among individuals who are otherwise eligible for election to the board
of supervisors solely on the basis of whether the individuals own land in the district.25 The Equal
Protection Clause prohibits a state from denying “to any person within its jurisdiction the equal




           ‘*We note that the drainage district’s enabling act limits ballot access to an individual who owns land “subject
to taxation” in the district, while Water Code section 53.063(2) limits ballot access to any individual owning land in the
district, regardless of the land’s taxability. We do not need to resolve any inconsistency created by this difference in
language to answer the questions you have posed.

         ‘gSee 67 TEX. JUR. 30Statum      5 117, at 700 (1989).

         ?See Act of May 24, 1973, 63d Leg., R.S., ch. 635, sec. 3, § 53.0631,        1973 Tex. Gen. Laws 1748, 1750-51.

         “‘See Act of May 14, 1975,64th     Leg., R.S., ch. 248,§    3,1975    Tex. Gen. Laws 600,602.03.

         ‘2See Act of May 28, 1989,71st     Leg., R.S., ch. 328,s    12,1989   Tex. Gen. Laws 1292, 1295,

         2’See Act of May 24, 1973,63d      Leg., RX, ch. 635, sec. 3,s 53.0631,1973       Tex. Gen. Laws 1748, 1750-51.

         ‘“See Act of May 28, 1989,71st     Leg., R.S., ch. 328, 5 1, 1989 Tex. Gen. Laws 1291, 1292-93

          25See .&be1 v. Williams, 457 U.S. 55,60 (1982)




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The Honorable       Sherry L. Robinson           - Page 5         (DM-484)




protection of the laws,“26 but it does not absolutely forbid all legislative classitications.27 Rather, a
legislative classification must either rationally serve a legitimate state purposeZS or, if the
classification infringes a fundamental right or creates an inherently suspect classification, serve a
compelling state interest.29

         A court would scrutinize the land-ownership requirement you question using the rationality
standard. Because candidacy is not a fundamental right, 3othis restriction on ballot access is not
entitled to heightened scrutiny. In addition, neither landowners nor non-landowners ever have been
held to be a suspect class of individuals.

         We are unable to predict, however, whether a court would determine that the land-ownership
requirement serves a legitimate state interest. In the first place, we are uncertain as to the state
interest served by the land-ownership requirement.        “‘In determining whether or not state law
violates the Equal Protection Clause, a court must consider the facts and circumstances behind the
law, the interests which the State claims to be protecting, and the interest of those who are
disadvantaged by the classification.“‘”       We looked in the statute’s history for evidence of the
interests the legislature designed the statute to protect. We found that the legislature originally
enacted the substance of section 53.063 in 1919.32 At that time, ofcourse, some restrictions on ballot
access may have been designed to exclude, on racial grounds, some people from governmental
positions. 33 On the other hand, the legislature might have imposed the land-ownership requirement
because it believed that landowners comprised the class that would be primarily affected by the
activities of a fresh-water-supply district. In any event, the age of the enactment precludes us from
ascertaining the legislature’s purpose, and no purpose has been proposed to us. Moreover, whether
the land-ownership requirement rationally relates to the ostensible purpose is a question requiring
 fact determinations, which we are not equipped to resolve in the opinion process.‘4 In the second


        “U.S. CONST. amend. XIV, 5 1.

        “See Attorney         General Opinion   JM-289 (1984) at 2,

        28See id.   at 2-3.

        ‘?%e id.    at 2.

        ‘%‘ee Clements        v. Fashing,   457 U.S. 957, 963 (1982) (Rehnquist,   J.) (plurality   opinion)   (citing BuNock v.
Cam-,405    U.S. 134, 143 (1972)).

        “Salyer Land Co. v. Tulare Lake Basin Water Storage Dist., 410 U.S. 719,725                 (1973) (quoting    Williams Y.
Rhodes, 393 U.S. 23,30 (1968)).

         ‘2See Act of July 19, 1919,36th        Leg., 2d C.S., ch. 48, 5 15, 1919 Tex. Gen. Laws 107, 111

         “Cf Turner v. Fouche, 396 U.S. 346 (1970).

         ‘4See,e.g.,AttomeyGeneralOpinionsDM-98(l992)at3;H-56(l973)at3;M-l87(1968)at3;0-29ll(l94O)
                                                                                                                      (continued...)




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The Honorable       Sherry L. Robinson      - Page 6          (DM-484)




place, a court probably could not determine the constitutionality        of the classification without
determining whether the drainage district’s purpose is so limited, and the drainage district’s activities
so disproportionately    affect landowners, as to justify the restriction on ballot access.         This
determination, too, requires fact-based analyses for its resolution, and it is not, therefore, amenable
to the opinion process.‘5

           The United States Supreme Court has upheld restrictions on the tmnchise where the
governing body to be elected oversees a district with a specialized, narrow purpose, the activities of
which the Court found to disproportionately affect landowners. In Salyer Land Company Y. Tulare
Lake Basin Water Storage District, 36for example, the Court concluded that a statute permitting only
landowners to vote in water storage district general elections reasonably furthered a legitimate state
purpose and did not, therefore, violate the Equal Protection Clause?’ Although the Court conceded
that non-landowners had an interest in the water storage district’s activities, the Court did not deem
that interest sufficient to overcome the presumption that the statute is reasonable.38 More
importantly, the Court determined that, because of the water storage district’s “special limited
purpose” and the fact that the district’s activities disproportionately  affect landowners as a group,
non-landowners were not entitled to a vote in the election of the district’s governing board.39 First,
according to the Court, the water storage district exists primarily to acquire, store, and distribute
water for farming in the Tulare Lake Basin. 40 The district’s “incidental” powers, such as acquiring
and operating necessary works for the storage and distribution ofwater; generating and distributing
hydroelectric power; and fixing charges for the use of the water, 4’did not, apparently, expand the
 district’s purpose beyond what the Court called the district’s “special limited purpose.” Second, the
 Court found that the statutory scheme precludes economically burdening a non-landowner qua
 district resident; rather, “[a]11 of the costs of district projects are assessed against land       in
 proportion to the benefits received.“42




         “(...continued)
at 2.

         “See,e.g.,AttomeyGenera10pinionsDM-98(1992)at3;H-56(1973)at3;M-187(1968)at3;0-2911(1940)
at2.

         ‘6410 U.S. 719 (1973).

         3’See id. at 734-35

         ‘?See id. at 732.

         ‘?Yee id. at 728

         “See id.

         “See id. at 723-24.

         42Id. at 729.



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The Honorable      Sherry L. Robinson        - Page 7          (DM-484)




         Likewise, in Ball v. James43 the Court upheld an Arizona statute that limited the franchise
in elections for directors of an agricultural improvement and power district to landowners.44 The
Court concluded that the land-ownership requirement reasonably relates to its statutory obj ectives.45
As in Salyer, the Ball decision hinges on the Court’s determination that the public entity at issue,
the Salt River Project Agricultural Improvement and Power District, has a “peculiarly narrow
function”: to store, deliver, and conserve water.46 Significantly, water is distributed according to
land ownership. Q The district’s sale of electricity to subsidize its water operations is, the parties
stipulated, incidental to this primary function4* In addition, although the district may condemn land,
sell tax-exempt bonds, and levy taxes on real property, 49 the district’s actions, the Court said,
disproportionately    affect landowners. 5o The district could not, for example, levy an ad valorem tax
or a sales tax to which all, landowners and non-landowners alike, would be subject;5* rather, “the
voting landowners are the only residents of the District whose lands are subject to liens to secure
District bonds. Only these landowners are subject to the acreage-based taxing power of the District,
 and voting landowners are the only residents who have ever committed capital to the District through
 stock assessments charged by the [District].“52

         On the other hand, the United States Supreme Court has struck down as unconstitutional
statutes that deem non-landowners ineligible to serve in certain offices. In Turner v. Fouches3 the
Court held invalid a Georgia law requiring that members of a county board of education be




         43451 U.S. 355 (1981)

          Y%e id. at 371 (plurality opinion); see also id. at 372 (Powell, J., concurring); accordAssociatedEnters.,  Inc.
v. Toltec WatershedImp. Dist.,4lOU.S.      743,744(1973)    (p er curiam) (upholding Wyoming statute that authorizes only
landowners to vote to create water district; finding Wyoming watershed district “is a governmental unit of special or
limited purpose whose activities have a disproportionate effect on landowners within the district.“).

         “See Ball v. James, 451 U.S. at 371.

         ‘5See id. at 351

         47See id. at 361.

         48See id. at 368-69

         ‘?%e id. at 360.

         “See id. at 370.

         “See id. at 366.

         =Vd. at 370,

          “396 U.S. 346 (1970).




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The Honorable      Sherry L. Robinson        - Page 8           (DM-484)




freeholders.     The Court said, “The State may not deny to some the privilege of holding
public office that it extends to others on the basis of distinctions that violate federal constitutional
guarantees.“55 While the Court often defers to lawmakers in determining whether a particular statute
meets the rationality standard, it determined in Turner that “the Georgia free-holder requirement
must fall even when measured by the traditional test for a denial of equal protection        . .“56 The
Court thus deemed insufficient Georgia’s argument in support of the freeholder requirement: that
because the statute did not specify a minimum real-property holding, anyone who “aspires to county
school-board membership ‘would be able to obtain a conveyance of the single square inch of land
he would require to become a ‘freeholder.“‘s7 In short, the Court concluded that Georgia could not
rationally presume that a citizen who did not own land would be an irresponsible member of a
county board of education. ‘* Additionally, the Court would not permit the state to presume that a
non-landowner lacks attachment to the community and its educational values.59

         Likewise, in Quinn v. Millsap60 the Court struck as violative of equal protection a Missouri
law requiring an appointee to a particular office to own real property!’ The Missouri Constitution
permitted the governments of the City of St. Louis and St. Louis County to reorganize ifthe city and
county electorate approved a reorganization plan drafted by a “board of freeholders.”         The State
ofMissouri offered three rationales for the real-property requirement. 6’ First, the State claimed that
a real-property owner knows “‘fust[]hand.        the value of good schools, sewer systems[,J and the
other problems and amenities ofurban life.“‘“4 Second, the State asserted that a real-property owner



         “See id. at 364.

         551d.at 362.63

          ‘*Id. at 362. In Turner the Court considered whether a Georgia scheme for appointing members to a county
board of education unconstitutionally   discriminated against individuals on the basis of their race. See id. at 350. Race-
based classifications generally are subject to stricter scmtiny than the rational-basis standard. See id. at 362. The Turner
Court did not apply a heightened standard, nevertheless, because the scheme at issue did not even satisfy the lesser
standard. See id.

         5’Id. at 363.

          “Id. at 363-64,

          “See id. at 364.

          60491 U.S. 95 (1989).

          6’See id. at 108

          Y%e id. at 96

          “See id. at 107

          wSee id. (quoting Brief for Appellees   41),




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The Honorable        Sherry L. Robinson         - Page 9           (DM-484)




“‘has a tangible stake in the long[-]tenn future”’ of the area in which the owner lives.65 Third, the
State argued that the land-ownership requirement was justified because the board of freeholders
considers issues that may relate to land. 66 The Quinn Court concluded, however, that its decision
in Turner disposed of the first two of the proffered justitications:67

               As to the first, the [Turner] Court explained that an ability to understand the
               issues concerning one’s community does not depend on ownership of real
               property. .      The Court in Turner also squarely rejected appellees’ second
               argument by recognizing that persons can be attached to their community
               without owning real property.68

Similarly, the Quinn Court concluded that Turner and its progeny disposed of the third proffered
justification: “[Tlhe mere fact that the board of freeholders considers land-use issues cannot sufftce
to sustain a land-ownership requirement in this case.“@ Furthermore, according to the Court, the
 effect of the board’s work would not be limited to landowners, but would extend to all citizens of
 the city and county. ‘O Consequently, the Court stated, the State of Missouri could not “entirely
 exclude from eligibility for appointment to this board” all individuals who do not own real
property.”

        We believe a court evaluating the land-ownership requirements in Water Code section
53.063(2) and the drainage district’s enabling act would have to consider whether the purpose ofthe
drainage district is “sufficiently specialized and narrow and whether its activities bear on landowners
so disproportionately   as to distinguish” the drainage district from those public entities whose more
general governmental functions warrant application of the Turner/Quinn analysis.”              If a court
determines that the drainage district does not serve a sufficiently narrow purpose and that the
drainage district’s activities affect landowners and non-landowners proportionately, we believe it


          6sSee id. (quoting   Brief for Appellees   41).

          %e    id. at 108




          -Id. at 108 (quoting    Turner, 396 U.S. at 363-64).

          69See id. at 108-09,

          ‘“See id. at 109

          “See id.

            %ee Ba2!. 45 1 U.S. at 362. We found no cases applying the analysis enunciated in Salyer and Ball, voting
 rights cases, to a ballot-access situation like this. But we believe that a court evaluating the land-ownership requirement
 in Water Code section 53.063(2) and the district’s enabling act would have to consider their applicability.        In Quinn,
 a ballot-access case, the Court hinted that the Salyer/Ba2l analysis might apply in an appropriate ballot-access case. See
 Quinn, 491 U.S. at 105.




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The Honorable    Sherry L. Robinson      - Page 10           (DM-484)




would be likely to follow Turner and Quinn and conclude that the land-ownership requirements
violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution
because they do not rationally serve a legitimate state purpose.          If, on the other hand, a court
determines that the drainage district’s purpose is sufficiently narrow and the district’s activities
disproportionately    affect landowners, we believe the court would conclude, consistently with the
Salyer Land Co/Ball cases, that the land-ownership requirements pass constitutional muster. We
note, in this regard, that the United States Court ofAppeals for the Fifth Circuit has indicated that the
land-ownership requirement in Water Code section 53.063’s sister statute pertaining to water control
 and improvement districts, Water Code section 5 1.072, may raise an equal-protection issue: “We
are unable to say       that [an] assertion of the unconstitutionality of section 5 1.072 of the . Water
 Code requiring that a candidate for water district director be a freeholder, is insubstantial .      .“‘j
Unfortunately for us, the Fifth Circuit did not resolve the question, and we have not found any other
judicial decision considering the issue.




         ‘3Fonseca Y. Hidalgo County Water Imp. Dist. No. 2,496 F.2d 109,112   (5th Cir. 1974).




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The Honorable   Sherry L. Robinson   - Page 11           (DM-484)




                                       SUMMARY

                Water Code section 53.063 has not been repealed.

                Ifthe requirements in Water Code section 53.063(2) and the enabling act
           for the Brookshire-Katy Drainage District prohibiting a non-landowner from
           holding a position on the drainage district’s governing board rationally serve
           a legitimate state purpose, a court would likely conclude that the
           requirements do not violate the Equal Protection Clause of the Fourteenth
           Amendment to the United States Constitution.




                                              DAN     MORALES
                                              Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by Kymberly K. Oltrogge
Assistant Attorney General




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