AUSTIN – Texas Attorney General Ken Paxton recently issued
an opinion on whether an appointing member city’s governing body may remove a
director it has appointed to the North Texas Municipal Water District without
cause during that director’s term.
The question was posed to Paxton by Rep. Jim Keffer, chairman
of the Texas House of Representatives Committee on Natural Resources. Keffer
said the attorney general’s opinion “would assist the district and its member
cities” by clarifying the scope of a member city’s governing body’s power to
remove or replace a director, with our without cause, during a director’s term.
In the opinion issued on Oct. 18, Paxton said a court would
likely rule that the district’s member cities have implied authority to fill a
vacancy on the board before the end of a director’s term if it is necessary to
keep the position filled, but not if a sitting director is able to serve until
a successor is appointed and qualified.
According to Paxton’s opinion, each director is appointed to
a two-year term by a member city within the district's territory, and each
member city appoints either one or two district board members, depending on its
population, in May of the year in which a term expires.
“The district’s governing legislation expressly provides for
the replacement of a board member only at the end of his or her term.
As a result, Paxton said “no provision expressly authorizes
the removal of a district director prior to the end of the director’s term.”
“Based on the legislature’s goal of maintaining the board
position filled for the duration of the director’s term and until a successor
can take over, a court would likely conclude that member cities have the
implied authority to fill a vacancy occurring prior to the end of a director’s
term,” Paxton said. “However, to the extent that a sitting director is able to
serve until his successor is appointed and qualified, we find no authority from
which could be implied the power to remove a director, with or without cause,
prior to the end of the director’s term.”
However, Paxton said the representatives of several
home-rule member cities that provided briefs to the attorney general’s office
feel that the District Enabling Act’s silence regarding the removal or
replacement of a director before the end of his or her term allows a home-rule
city to remove a director through that city’s charter or ordinances.
Paxton said the attorney general’s office previously found
that the city of Garland lacked the authority to remove one of its appointed
representatives to the district’s board before the end of the director’s terms
when it was asked to address a similar question to the one posed by Keffer.
Paxton said the previous opinion emphasized that a district
director is not a municipal officer but, rather, “an officer of the district,
who happens merely to be appointed by the city council.”
“Thus, while a home-rule municipality may have broad
authority with regard to the removal of its own officers, such authority does
not necessarily extend to the removal of a district director prior to the end
of the director’s term,” Paxton said.