Municipal Corner

The Attorney General clarifies ambiguities concerning General and Special Law Districts’ Board of Directors. Tex. Att’y Gen. Op. KP-0468 (2024).

The Ector County Utility District (the “District”) requested an opinion from the Texas Attorney General (the “AG”) to resolve several questions regarding the election, appointment, and removal of its Board of Directors. The AG provided guidance on three of the District’s questions.

First, the District asked whether an elected official holds their office unlawfully if that official filled out an untruthful or otherwise deficient ballot application. The AG applied Texas Election Code § 141.034(a) to conclude that challenges to a ballot application based on form, content, or procedural insufficiencies are moot if the challenge is brought within
50 days of the election.

Second, the District asked for guidance regarding vacancies on the District’s Board of Directors. Specifically, the District sought clarification on whether its Board was disqualified from making an appointment to fill a Board vacancy. Texas Water Code § 49.105(a) states that districts may fill vacancies on the Board within 60 days following the date of vacancy. However, if the district fails to fill the vacancy in 60 days, either the Commissioners Court or TCEQ may fill the seat by appointment. The Board may still fill a vacancy after the expiration of the 60-day statutory timeframe, but that power requires a petition requesting the Board to fill a vacancy that is signed by at least 10% of the voters in the district. In this opinion, the AG found that a court would likely construe Texas Water Code § 49.105 as advisory, rather than mandatory, indicating the District could still fill a Board vacancy after the 60-day statutory timeframe expired if the voters, TCEQ, or Commissioners Court failed to act. The AG explained this interpretation of Texas Water Code § 49.105 fulfills the overall intent of the statute, which is to ensure any vacancies on the Board are promptly filled.

Third, the District asked about its power to remove individuals from its Board of Directors, specifically under Texas Local Government Code § 178.053(a) and Texas Civil Practice and Remedies Code § 66.001. Regarding the Local Government Code, the AG concluded this statute was inapplicable because the subsection in question applies to board members who are wholly or partly appointed, whereas the District’s Board of Directors are elected. Regarding the Civil Practice and Remedies Code, the AG explained that Section 66.001 allows for an action in “quo warranto” to remove an office holder, which applies to individuals serving on the District’s Board of Directors. However, this action in quo warranto may not be brought by the District — this action may only be brought by the AG, County Attorney, or District Attorney. The AG explained how Section 66.001 imposes no factual threshold to determine when such action is warranted, which grants the AG, County Attorney, or District Attorney discretion to decide whether to petition the Court in this manner.

Jake Steen is an Associate in the Firm’s Water, Districts, and Litigation Practice Groups. If you would like additional information or have questions related to these or other matters, please contact Jake at 512.322.5811 or jsteen@lglawfirm.com.