Untitled Texas Attorney General Opinion ( 1987 )

THE ATTORNEY GENERAL
OF TEXAS
Nay 22. 1987
Honorable Lloyd Criss opinion No. .JH-706
chairman
Comictee on Labor and Re: Effect of chapter 56 of the
Employment Relations Water Code with regard to the
Texas Bouse of Representatives authority of the Galveston County
P. cl.Box 2910 Drainage District No. 2
Austin, Texas 78769
Dear Representative Criss:
You ask whether chapter 56 of the Water Code controls the actions
of the Galveston County Drainage District No. 2. That drainage
district was created in 1910 under the Drainage Act of 1907, pursuant
to article III, section 52. of the Texas Constitution. It is our
opinion that the district is subject to the provisions of chapter 56.
Article III, section 52. of the Texas Constiturion was amended in
1904 to authorize the establishment of districts with limited taxing
power for drainage and the prevention of flooding, among other things.
Because of the restrictive limitation on the marimum amount of in-
debtedness allowed under article III, section 52. article XVI, section
59, was added to the Texas Constitution in 1917 to authorize districts
without the debt limitation.
The Drainage Act of 1907 provided for the creation of.a drainage
district pursuant to article III. section 52. Acts 1907, 30th Leg.,
ch. 40. at 78. The Drainage Act, as amended. prescribed the creation.
organization, powers, and duties of a district created by authority of
that act. Its provisions originally governed. and still govern, such
a drainage district. The Drainage Act subsequently was codified as
articles 8097-8193, in chapter 7, Title 128, Revised Statutes, 1925.
and was recodified without substantive channe in 1971 as chaoter 56 of
the Water Code. See Mobile Oil Corp. v.-Katagorda County Drainage
District No. 3, 597.W.2d 910 (Tex. 1980) (interpretation and effect
of chapter 56 to .district created prior to 1912 under Drainage Act):
Hategorde County Drainage District-No. 1 v. Commissioners Co&t, 278
S.W.2d 539 (Ted. Civ. App. - Galveston 1955, writ ref'd n.r.e.)
(interpretation and effect of artic1e.s 8097 et seq., V.T.C.S., to
districts created in 1907, 1911, and 1912 under Drainage Act); Hidalgo
County Drainage District No. I v. Swearingen, 158 S.W. 211 (Tex. Civ.
APP. - San Antonio 1913, no writ) (interpretation and effect of
Drainage Act of 1907); Wharton County Drainage District No. 1 v.
p. 3265
Honorable Lloyd Criss - Page 2 (JM-706)
Bigbee, 149 S.W. 381 (Tex. Civ. App. - Galveston 1912, writ ref'd)
(interpretation and effect of Drainage Act of 1907); Parker v. Harris
County Drainage District No. 2. 148 S.W. 351 (Tex. Civ. App. -
Galveston 1912. writ ref'd) (interpretation and effect of Drainage Act
of 1907).
A district created under article III, section 52, and governed by
chapter 56 of the Water Code may convert to a district authorized to
operate under article XVI, section 59, in which case limitations
imposed by article III. section 52 and chapter 56 on debts to be
incurred and taxes to be levied are not applicable to the district.
Water Code $56.032.
You note that some statutory provisions which relate to drainage
districts exist outside the Water Code and question the effect of
those statutes on chapter 56 of the Water Code. A few stetutqry laws
outside the Water Code relate generally co drainage districts as well
as to other districts and govemental entities. For instance. such
statutes provide exemption from appeal bond requirements in a civil
case for certain named special districts, including drainage districts
(section 6.003 of the Civil Practice aad Remedies Code), and authorize
obligations of a municipality, district, or political subdivision,
including a drainage district, to be made payable at the state
treasurer's office (article 4393-1. section 3.022 of the Treasury Act;
formerly article 4379b, V.T.C.S.). However, the great bulk of
statutes relating to drainage districts that are not codified in the
Water Code are special acts of the legislature that apply odly to
designated draiuage districts. Such special acts are'not applicable
to any district other than the drainage district named or described by
the act. An example of such an act is chapter 467 enacted by the
Fifty-sixth Legislature (article 8280-237. V.T.C.S.). which creates
the Galveston County Drainage District No. 4 and provides its
organization, powers, and duties. The provisions of chapter 467 of
the Fifty-sixth Legislature apply only to the Galveston County
Drainage District No. 4 and, hence, are not codified in the Water
Code. -See Acts 1959, 56th Leg., ch. 467, at 999.
You also ask whether the Galveston County Drainage District No. 2
has authority to charge fees for reviewing plans for the construction
of crossings over the district's ditches. A drainage district
organized under and governed by chapter 56 is a subdivision of the
state which is created for a special purpose and exercises only powers
that are expressly granted or which are necessary and incident to the
exercise of expressed powers. See Mobile Oil Corp. v. Matagorda
County Drainage District No. 3, e (by annexing territory in gulf,
drainage district acted beyond its limited powers); Attorney General
Opinion O-1862 (1940) (drainage district lacks statutory authority to
use district funds to maintain drainage ditches constructed by private
owners).
p. 3266
Eonorable Lloyd Criss - Page 3 (JM-706)
Subject to the constitutional limitations, chapter 56 expressly
authorizes en annual lew of texes on district orooertv to PW bonded
indebtedness and to coktruct and maintain distric; impkokments.
Water Code 556.242. See also Matagorda County Drainage District v.
Commissioners court, supra. Chapter 56 contains no provision
authorizing a drainage district to charge fees for reviewing plans for
crossings over its ditches. We con&de that a drainage district
governed by chapter 56 which charged such a fee would exceed its
limited powers.
SUMMARY
The provisions of chapter 56 of the Water
Code apply to and govern the Galveston County
Drainage District No. 2. Most statutes relating
to drainage districts that are not codified in the
Water Code are special acts of the legislature
that apply only to drainage districts named or
described by the acts. A dreinage district
governed by chapter 56 is not authorized to charge
a fee for reviewing plans for crossings over its
ditches.
~g;.7lJax
Attorney General of Texas
JACK HIGEJX%ER
First Assistant Attorney General
MARYKRLLER
Executive Assistant Attorney General
JDDGR ZOLLIE STRARLFX
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Nancy Sutton
Assistant Attorney General
p. 3267