Municipal Corner

Texas Water Code § 49.103 provides for certain district board of directors, including a conservation district established prior to the enacted provision, to change the terms of the district’s board of directors from two years to four years. Tex. Att’y Gen. Op. No. KP-389 (2021).

In a recent opinion, the Office of the Attorney General addressed whether a conservation district had the authority to change the terms of office for its board of directors from two to four years. The Office of the Attorney General concluded that such entities could do so.

The Opinion first discusses the background of the specific entity, Trinity Bay Conservation District (the “District”), which was established by the Texas Legislature in 1949 as a conservation and reclamation district under Article XVI, Section 59, of the Constitution. The 1949 Act established a five-person board of directors with each serving a two-year term elected in staggered elections. The District previously sought to amend the 1949 Act in 1991; however, no legislation passed. In 2016, the District issued an order successfully changing its elections from May to November. The order states “those positions to have appeared on the May 2016 ballot will appear on the November 2016 ballot and will be 4-year terms.”

Next, the Opinion addresses whether the District board of directors possessed the authority to change members’ terms from two years to four years. Because the 1949 Act establishing the District and the two-year term of office system for the board of directors was unchanged by any amendment, the Attorney General looked to other applicable law to determine whether the District board of directors’ terms remain established as two-year terms. The Attorney General agreed with the District’s interpretation that Section 49.103 of the Texas Water Code establishes a staggered four-year term for district board of directors, and in addition, includes a choice-of-conflicting-law provision that resolves any conflict with prior statutory enactments about Directors’ terms in favor of the four-year term. This Opinion concludes that Section 49.103 governs the length of the directors’ terms, despite the conflicting language in the enabling legislation.

Legislation passed in the most recent Texas Legislative Session goes into effect on January 1, 2022 regarding eminent domain authority.

House Bill 2730 amends the Texas Government and Property Codes relating to eminent domain authority, which go into effect on January 1, 2022. Under Section 21.0113(b) of the Property Code, as amended by the bill, an entity with eminent domain authority must include in its written initial bona fide offer to a property owner the following:

• A copy of the landowner’s bill of rights statement prescribed by Section 402.031, of the Texas Government Code, including the addendum prescribed by Section 402.031(c-1);
• A statement, in bold print and a larger font than other portions of the offer, indicating whether the compensation being offered includes (1) damages to the remainder, if any, of the property owner’s remaining property, or (2) an appraisal of the property, including damages to the remainder if any, prepared by a certified appraiser certified to practice as a certified general appraiser under Chapter 1103 of the Texas Occupations Code;
• An instrument of conveyance, provided that if the entity is a private entity as defined by Section 21.0114(a), the instrument must comply with Section 21.0114, as applicable unless: (1) the entity has previously provided an instrument complying with Section 21.0114, (2) the property owner desires to use an instrument that differs from one complying with Section 21.0114 and consents in writing to use a different instrument, or (3) the property owner provided the entity with the instrument prior to the issuance of the initial offer; and
• The name and telephone number of a representative of the entity who is (1) an employee of the entity, (2) an employee of an affiliate providing services on behalf of the entity, (3) legal counsel of the entity, or (4) an individual designated to represent the day-to-day operations of the entity, if the entity does not have employees.

Newly enacted Section 21.0114 defines “private entity” as (1) a for-profit entity, as defined by Section 1.002 of the Texas Business Organizations Code, authorized to exercise the power of eminent domain to acquire private property for public use, or (2) a corporation organized under Chapter 67 of the Texas Water Code, such as a water supply corporation, that has a for-profit entity, however organized, as the sole or majority member. Section 21.0114 applies only to a deed, agreement, or other instrument of conveyance for a pipeline right-of-way easement or an electric transmission line right-of-way easement that is included with an offer to acquire a property interest for public use, subject to
certain exceptions. Such deeds, agreements, or instruments of conveyance made by a private entity with eminent domain authority to acquire the property interest to be conveyed must address the specific terms relating to the easements and negotiations of the terms and conditions, as outlined in the Section. A private entity must also notify the property owner that they may negotiate for specified general terms to be included in the deed, agreement, or instrument of conveyance.

Additionally, House Bill 2730 amends Section 402.031 of the Texas Government Code relating to the landowner’s bill of rights statement prepared by the Office of the Attorney General, including the notification requirement that a property owner may file a written complaint with the Texas Real Estate Commission (“TREC”) regarding any alleged misconduct by a registered easement or right-of-way agent acting on behalf of the entity exercising eminent domain authority. Under Section 402.031, the landowner’s bill of rights will now include an addendum of the terms required for an instrument of conveyance under Section 21.0114(c) of the Property Code, and the terms a property owner may negotiate under Section 21.0114(d), relating to a pipeline right-of-way easement or an electric transmission line right-of-way easement.

“Municipal Corner” is prepared by Kathryn Thiel. Kathryn is an Associate in the Firm’s Districts Practice Group. If you would like additional information or have questions related to these or other matters, please contact Kathryn at 512.322.5839 or kthiel@lglawfirm.com.