Municipal Corner

Texas Water Code Subsection 12.013(a) gives the Public Utility Commission broad, general authority to fix water rates for any purpose provided by Water Code Chapters 11 and 12. Tex. Att’y Gen. Op. No. JS-0004 (2023).

The Executive Director of the Public Utility Commission (“PUC”) requested an opinion from the Texas Attorney General regarding whether PUC has authority under Water Code Section 12.013 to hear an appeal by a municipal utility of rates set by a water control and improvement district, or whether the Texas Commission on Environmental Quality (“TCEQ”) has exclusive authority over such an appeal under Water Code Subsection 51.305(d). The Attorney General determined that to the extent the PUC’s authority to fix water rates under Water Code Section 12.013 encompasses authority to hear a matter concerning an amount allocated under Water Code Section 51.305, its authority overlaps with that of the TCEQ.

In October 2021, the City of McAllen (the “City”) filed a petition with PUC pursuant to Water Code Section 12.013 to appeal water delivery rates set for its utility by the Hidalgo County Water Improvement District No. 3 (the “District”). In filing its petition with PUC, the City argued that PUC has assumed authority over rate appeals challenging the rates set by a water control and improvement district. Because there were still factual questions to be resolved, the Attorney General determined that he could not provide an answer to the ultimate question. However, the Attorney General provided insight as to how each statute may be interpreted.

The Attorney General interpreted Water Code Subsection 12.013(a) as authorizing PUC to fix reasonable rates for the furnishing of raw or treated water for any purpose under Water Code Chapters 11 or 12, and interpreted Water Code Section 51.305 as pertaining to specific expenses a water control and improvement district may allocate to certain users, concluding that the two provisions do not conflict. Under the plain terms of Subsection 51.305(d), when an authorized party disputes a water control and improvement district’s allocation assessments and other payments necessary to cover the maintenance and operating expenses of its water delivery system, a petition filed with the TCEQ is the sole remedy. Otherwise, the matter is before PUC.

A person may not simultaneously serve as a board member of two taxing entities that serve geographically overlapping territory. Tex. Att’y Gen. Op. No. JS-0006 (2023).

State Representative Terry Canales requested an Attorney General Opinion regarding whether a member of the Board of Trustees of the La Joya Independent School District (the “School District”) may simultaneously serve as a member of the Board of Directors of the Hidalgo County Irrigation District No. 6 (the
“Irrigation District”). The Attorney General determined that an individual may not simultaneously serve as a school board trustee and irrigation district board member.

The common-law doctrine of conflicting-loyalties incompatibility prohibits one person from simultaneously holding two offices that would prevent the person from exercising independent and disinterested judgment. Because the School District and the Irrigation District have taxation authority in overlapping territory, one individual may not simultaneously serve as a school board trustee and irrigation district board member. Therefore, the Attorney General determined that a court would likely conclude that a person may not simultaneously serve as a board member of the School District and as a board member of the Irrigation District. Additionally, if an officeholder accepts and qualifies for a second incompatible office, that individual automatically resigns from the first as a matter of law.

A county commissioner’s court lacks authority to impose a moratorium on commercial solar projects. Tex. Att’y Gen. Op. No. AC-0003 (2023).

The Franklin County Attorney requested an Attorney General Opinion regarding the authority of a county commissioners court to adopt and enforce a moratorium regarding commercial solar projects. The Attorney General ultimately determined that the commissioners court does not have such authority.

Franklin County proposed a moratorium on the sitting, construction, installation, operation, permitting, and licensing of any Commercial, Utility Scale Solar Energy Facility within the County. The Attorney General concluded that a court would likely find a moratorium invalid and unenforceable, citing several statutes. First, the Attorney General determined that the commissioners court has no specific authority to impose a “moratorium” on a solar facility. Second, although a commissioners court has authority over certain aspects of county roads under Transportation Code Chapter 251, the moratorium reaches activity other than that related to county roads. Therefore, Chapter 251 does not authorize the commissioners court to impose a moratorium. Third, although a commissioners court can enforce laws reasonably necessary to protect public health under Health and Safety Code Section 121.003, such an action must seek to enforce a specific, preexisting public health law. Because the moratorium would not enforce a specific public health law, it would likely be invalid.

Madison Huerta is an Associate in the Firm’s Governmental Relations, Water, and Districts Practice Groups. If you would like additional information or have questions related to these or other matters, please contact Madison at 512.322.5825 or mhuerta@lglawfirm.com.