Untitled Texas Attorney General Opinion ( 2010 )

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ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
August 26, 2010
The Honorable Troy Fraser Opinion No. GA-0792
Chair, Committee on Natural Resources
Texas State Senate Re: Status of particular tracts of land annexed
Post Office Box 12068 into one groundwater conservation district and
Austin, Texas 78711-2068 subsequently included in special legislation
creating a different district (RQ-0817-GA)
Dear Senator Fraser:
Your predecessor asked about the status of four tracts of land, each of which was annexed
into a groundwater conservation district and subsequently included in a different district created by
special legislation. I In each case, an existing district, on petition of a landowner, annexed a parcel
ofland in an adjacent county. The Legislature subsequently established in each adjacent county a
new district with boundaries coterminous with that of the adjacent county. We are asked about the
present status of the parcels ofland that were annexed by the original districts and later included in
a newly-created groundwater conservation district. Because we do not have sufficient information
to determine, in any particular case, whether facts exist that would implicate constitutional
limitations, such as impairment of contracts, we will limit our answers to issues of statutory
construction. With that caveat, we will address each of the four scenarios in turn.
I. The Panhandle and Hemphill Districts
In 1994, certain landowners petitioned the board ofthe Panhandle Groundwater Conservation
District to annex a particular tract of land in Hemphill County, and the Panhandle District board
granted the petition on August 3, 1994.2 In 1995, the Legislature by special law created the Hemphill
County Underground Water Conservation District pursuant to article XVI, section 59 of the Texas
Constitution. See Act of May 8, 1995, 74th Leg., R.S., ch. 157, 1995 Tex. Gen. Laws 1007,
1007-09. The boundaries of the district were declared to be "coextensive with the boundaries of
Hemphill County." Id § 3, at 1007.
The Hemphill District's enabling legislation granted to its board "all of the rights, powers,
privileges, authority, functions, and duties provided by the general law of this state, including
lRequest Letter (available at http://www.texasattorneygeneral.gov).
'Brief from Monique Nonnan, Attorney at Law, on behalf of the Panbandle District at 1 (Oct. 5, 2009).
The Honorable Troy Fraser - Page 2 (GA-0792)
Chapters 50 and 52, Water Code, applicable to underground water conservation districts created
under Section 59, Article XVI, Texas Constitution,".excepting the power of eminent domain. See
id § 5. In 1995, however, the Legislature repealed chapter 52 of the Water Code, effective
September 1,1995. The same bill that repealed chapter 52 enacted chapter 36 of the Water Code,
applicable to groundwater conservation districts. See Act of May 29, 1995, 74th Leg., R.S., ch. 933,
§§ 2, 6,1995 Tex. Gen. Laws 4673, 4679-4701. Thus, both the Panhandle and Hemphill Districts
currently occupy the status of a "groundwater conservation district" under chapter 36.
A Texas court has held that "two governmental entities may not exist at the same time over
the same territory for the same purpose." Glasscock Underground Water Conservation Dist. v.
Pruit, 915 S.W.2d 577, 584 (Tex. App.-El Paso 1996, no writ) (emphasis added). Because both
the Panhandle and Hemphill Districts are chapter 36 districts, they operate for the same purpose and
thus the tract may not, under the language of Pruit, and in the absence oflegislation to the contrary,
be included within the territory ofboth districts. The question before us is therefore whether the tract
is part of the Panhandle District or part ofthe Hemphill District.
A political subdivision has no contractual right in its boundaries, and "the Legislature has
the same authority to enact legislation decreasing boundaries as it does to validate ordinances
increasing boundaries." City of Deer Park v. State ex reI. Shell Oil Co., 275 S.W.2d 77,82 (Tex.
1954). Subject only to constitutional limitations, the power of the Legislature to fix the boundaries
of a political subdivision is plenary. Steinhagen v. Eastham, 233 S.W. 660, 663 (Tex. Civ.
App.-Beaumont 1921), ajJ'd, 243 S.W. 457 (Tex. 1922). Indeed, the Legislature has demonstrated
that it knows how, if it so chooses, to carve out land that has been annexed by a district and to leave
that land outside of a hew district when enacting legislation creating the new district. See Act of
May 24, 1989, 71st Leg., RS., ch. 653, §§ 3, 14(a), 1989 Tex. Gen. Laws 2153, 2154-55 ("This Act
shall not apply to any lands which have been annexed into the Glasscock County Underground Water
District ... prior to the effective date of this Act."). Accordingly, the 1995 special law creating the
Hemphill District prevails over the prior annexation of the tract by the Panhandle District pursuant
to general law.
II. Jeff Davis and Contiguous Districts
The Jeff Davis County Underground Water Conservation District was created by special law
in 1993. The boundaries of the district are "coextensive with Jeff Davis County." See Act of May
31, 1993, 73d Leg., RS., ch. 641, § 3, 1993 Tex. Gen. Laws 2414. The Presidio County
Underground Water Conservation District was created at the same legislative session. The
boundaries of the Presidio District are "coextensive with Presidio County." The Presidio District
required an election "to confirm establishment of the district." See Act of May 28, 1993, 73d Leg.,
RS., ch. 453, §§ 3, 7(a), 1993 Tex. Gen. Laws 1826, 1827. A confirmation election was not held
until August 31, 1999 at which time the establishment of the district was confirmed. 3 Prior to that
election, however, a single landowner in Presidio County had petitioned for annexation to the Jeff
'Telephone Conversation with Janet Adams, Manager, Jeff Davis District and Presidio District (Oct. 13,2009)
[hereinafter Adams Conversation).
The Honorable Troy Fraser - Page 3 (GA-0792)
Davis District. The Jeff Davis District's board of directors granted the petition in April 1999. As
was the case with the Panhandle and Hemphill Districts, the special law creating the Presidio District
prevails over the prior annexation by the Jeff Davis District pursuant to general law. It follows that,
for purposes of statutory construction, the tract in question is exclusively within the territory of the
Presidio District.
In 1999, the Legislature by special law created thirteen new groundwater conservation
districts, among them the Middle Pecos Groundwater 9onservation District. The boundaries of the
Middle Pecos District are "coextensive with the boundaries of Pecos County." One provision ofthe
special law required a confirmation election to be held "[nlot earlier than September 1, 2001."
Another provision declared, however, that "[nlotwithdtanding the provisions of Section 10 of this
Act, an election for the confirmation ofthe creation of a groundwater conservation district under this
Act and for the selection of initial directors for such district shall not be held unless action is taken
by the 77th Legislature in its Regular Session to ratify the creation of the district." See Act of May
28,1999, 76th Leg., R.S., ch. 1331, §§ 1,2(7), 10(a), 15(a), 1999 Tex. Gen. Laws 4536, 4536, 4539.
In November 2000, the Jeff Davis District's board granted a single landowner's request to
armex his land to the Jeff Davis District. Adams Conversation, supra note 3. The next legislative
session, however, ratified the creation of the Middle Pecos District. See Act of May 24, 2001, 77th
Leg.,R.S., ch. 1299, § 1,2001 Tex. Gen. Laws 3177. On the basis of the primacy of the special law
creating the Middle Pecos District over the annexation by the Jeff Davis District pursuant to general
law, we conclude that the tract in question, for purposes of statutory construction, is exclusively
within the territory of the Middle Pecos District.
The same landowner in Pecos County who petitioned the board of the Jeff Davis District in
November, 2000 to annex his Pecos County property simultaneously petitioned the. board to annex
his land in Brewster County. The Jeff Davis District board subsequently granted his petition.
Adams Conversation, supra note 3. The following year, the Legislature by special law created the
Brewster County Groundwater Conservation District. The boundaries ofthe district are "coextensive
with the boundaries of Brewster County." The Brewster District was subsequently ratified in a
confirmation election required by the special law. See Act of May 27,2001, 77th Leg., R.S., ch.
1291, §§ 1,3,9,2001 Tex. Gen. Laws 3117, 3118. Because, as we have indicated, section 36.052
of the Water Code provides that a "special law governing a specific district shall prevail over"
chapter 36, including its provIsions regarding annexation, we conclude that the tract at issue here,
for purposes of statutory construction, is currently a part ofthe Brewster District. TEx. WATER CODE
ANN. § 36.052(a) (Vernon 2008).
We emphasize that the conclusions we have reached in the above scenarios apply only to the
status of the referenced tracts under principles of statutory law. In any particular case, there may be
constitutional considerations that would require a different result.
The Honorable Troy Fraser - Page 4 (GA-0792)
SUMMARY
Two different political subdivisions may not exercise
jurisdiction over the same territory at the same time and/or the same
purpose. For purposes ofstatutory law, the 1995 speciallaw creating
the Hemphill County Underground Water Conservation District
prevails over the prior annexation of territory by the Panhandle
Groundwater Conservation District pursuant to general law. A
disputed tract of land claimed both by the Jeff Davis County
Underground Water Conservation District and the Presidio County
Underground Water Conservation District is exclusively within the
territory of the Presidio District. A disputed tract of land claimed
both by the Jeff Davis County Underground Water Conservation
District and the Middle Pecos Groundwater Conservation District is
exclusively within the territory of the Middle Pecos District. A
disputed tract of land claimed both by the Jeff Davis County
Underground Water Conservation District and the Brewster County
Groundwater Conservation District is exclusively within the territory
of the Brewster District. In any of the above referenced scenarios,
there may exist constitutional considerations that would require a
different result.
DANIEL T. HODGE
First Assistant Attorney General
NANCY S. FULLER
Chair, Opinion Committee
Rick Gilpin
Assistant Attorney General, Opinion Committee