Texas Advisory Opinions November 06, 1998: AGO DM-484 (November 6, 1998)

No. DM-0484 (1998).

Morales Opinion No. DM-484

Office of the Attorney General State of Texas

Dear Ms. Robinson:

Water Code section 53.063, which sets out qualifications for election to a fresh-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 of the 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 of the issue you raise, however, because we are uncertain as to the state purpose the land-ownership requirements are intended to further. 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You also question whether the legislature has repealed Water Code section 53.063.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.(fn6)

The Brookshire-Katy Drainage District's enabling act creates a board of five elected supervisors to manage and control the drainage district(fn7) and establishes three eligibility requirements: A candidate for supervisor must be more than twenty-one years of age. A candidate for supervisor must own land subject to taxation in the drainage district. A candidate for supervisor must reside in the area of the drainage district from which he or she seeks election.(fn8)

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,(fn16)

Like the drainage district's enabling act, Water Code section 53.063 establishes qualifications for supervisors of a fresh-water-supply district: He or she must be twenty-one years of age or older at the time of the election. He or she must own land within the district. 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 prevail.(fn18) 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 the pocket part's listing of section 53.0631 is a typographical error. Certainly, where the publisher has made an error in printing a statute, we should disregard it.(fn24)

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.(fn29)

A court would scrutinize the land-ownership requirement you question using the rationality standard. Because candidacy is not a fundamental right,(fn30) this 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.'"(fn35)

The United States Supreme Court has upheld restrictions on the franchise 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 v. Tulare Lake Basin Water Storage District, (fn42)

Likewise, in Ball v . James (fn52)

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 . Fouche (fn59)

Likewise, in Quinn v. Millsap (fn67)

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.(fn68)

Similarly, the Quinn Court concluded that Turner and its progeny disposed of the third proffered justification: "[T]he mere fact that the board of freeholders considers land-use issues cannot suffice to sustain a land-ownership requirement in this case."(fn71)

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 of the 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.(fn73) Unfortunately for us, the Fifth Circuit did not resolve the question, and we have not found any other judicial decision considering the issue.

Water Code section 53.063 has not been repealed.

If the 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.

Yours very truly,

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

Attorney General Opinion JM-289 (1984) at 2.

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Footnotes:

1. Attorney General Opinions DM-98 (1992) at 3; H-56 (1973) at 3; M-187 (1968) at 3; O-2911 (1940) at 2.

2. Attorney General Opinions DM-98 (1992) at 3; H-56 (1973) at 3; M-187 (1968) at 3; O-2911 (1940) at 2.