Untitled Texas Attorney General Opinion ( 1949 )

THEATTO@NEY GENERAL Ol?+rExAS AUSTXN ~~,'T-EzxAs PRICEDANIEL ATTOIINEYGENERAL Jule $1, 1949 Eon, Sam Lee Opinion Rio, V-841. Coumty Attorney Brasoria County Re: Authority oi Commleeionerr~ Angleton, Texas Court to meats a drainage district in a conservation and reclamation dietriot, Dear Sir: We refer to your letter in whlah yew lwb%t the ro11onin.g queetion: Y!he Commlsrlomors~ Court of Bra- zorla County, Texas, has entertainsd a petftim presented to It pursuant to the mithority granted in Articles 809'7 and 809l'& R.C.S, for the purpose of creating a drainage aletriat in a portion of Bra- aerir Oounty, *Rra+oria County ia a part Of the Bratos River Conservation and Realemetlon District. The whole of Braeoria County, Including the proposed area out of which it is desired to create a drainage die- trlct, is a part of the Brazes River Con- aemation Qnd Reolamatlon Dietrlct. Thie diatriet WLS areated by the Leglelature oi the Stats o? Texae by the Aotm of 1929, 4Irt Lsgislatu~e, Seaond called aesbion, amwnad atid the text of the law $8 round ls&footwate under Section 2 of Artio&e m The A,ot*(~ama+4 IrJtfkaM&ad uglrSatur0 $9 Its first call& S*m3lon, Page a9 ahapter 5.0s the Cfeneral *ad Spw aial Seaslori La%r, @nd the lm& ,oS the mehdunt i,s fc&& in the Rwisbi CM1 Statutes in the poaket part, lstiola 8'1971, Seotlon 5, "Therefore, my question to you is as r0ii0r4: Eon, Sam Lae - Page 2 (V-841) “Does the Commtesionorb~ Court of Braaorla County, undar Article 8182 and 8103, have the power to form a new drain- agr district out of a part of the terrl- tory lomted in Braaoria County rhero tho~(b is nc present uaa mirtinq drainage dl8triot and reolmtlen dlbtriot, In the I. . 4vbnt ,that all af Bra34ria County is a part of the BraPros River Comarvatfon and Reclamation District aa pwvlded by Bea- tloa 5, Title 128, chapter 8, R.C,S, .shom a4 rootnate Mder Article 81971, B.c.s.w ‘your question lnvolv4e the construotion OS Aoti 1945, 40th Leglrlature, pago 186, Chaptqr 143, whfoh i4 4140 Seotionn l-8 of Article 8193-l of V4r- non’s Civil Statutes. Ths caption or th4 Act readst "An Act to provide the abolition for 4f araiw4 00untle8 districts inin all tnlr Stat0 whom cl3019 rhallh4vr been ar4et.d OF may heraaftor be amat4d by the kgirlnture, ar under it4 lihOrity, a il4.d e4ntrol distrlot or aonsenation 4r realemotion aiatrict compoa4d of 4ll er a portion of the territory of suoh counties, pursuant to the provlslone pna under auth- ority of Section 59 of Article XVI of the Constitution, rhoso territory Includes such drainage dlstrlate; providing for the pag- rent of the outatanalng bonded and other lndebtednbsees of such districts; author- Ising and requiring actiona by the Commln- siolasrsf court; providing ror eleatlons, for the paymnt of.outstandlng bonaoa and other indebtedness, for the l4vy and col- lection of taxes; and dealarlng an emer- gent y e‘I (Esnphasls added throughout) The subject in the caption la the abolition of drainage districts on all counties where there have been or may hereafter be created by the Legislature or under Its authority, flood control, conservation or reolamation dietriots. Prohibiting the creation of new drainage dietricts is not mentioned in the caption, Article 8193-1, Section 1 reads: HO% Sam lie46 - Page 3 (V-841) ‘Ia all counties in Texas, where there ahall have been oreated, or ahall here&top be Oreated. , II a flood control diatriet; or conaervatlon ana Ceolamation aiatriot, - retofore beea organie- ed unaer the authority of and pursuant to the provisions of Chapter 7, Zltle 128, Re- vised CIvIl Statutes, 1925, &rtIcles 8097, et seq., which lib wholly wItsin the boun- daries of such flood control district, or oonaervatlon and reclamation district, such drainage districts may be abolished in the manner provided by this Act; and when ao abolished, no auoh drainage district shall thereafter be organized which shall inoluae within its boundaries any portion of any territory theretofore incorporated within the boundaries of suah flood control dia- t;:E;igr conservation and realamation aia- s&ion 2 provides-that-upon pet+tion of reel- dent taxpaying voqere 111baon arainage dietriot praying that .an . election . be . ordered _-_ for the -_ prpoae _. of detemin- ing wnewer or not sum aras.nags Qiatrlct or districts had.% OUtatandina bond indebtedness be abollahed. the Gomaibioners~ Coiirt ahall order an election to be liiia within the flood control or conae,rvatIon aha reclamation 4% triot for the purpose of a t rmI in h th t ii&im inage dietriot oti dia&&ts”ah%~ te $i~lPie~~d nnd the outstanding bonded and other indebtedness ehall be amumed by auoh flood control or conservation and rec- 1aPution dlatrlct within the boundaries of which &uch 3Setrlcts 11 Then follows provisiona for posting or ptiblfohlng n&ct,s of election In the county where such Uettriets bre situated. Ho provision is made for an lle@tiea in anr ether County in the flood control or con- lervatian andreclamation district. Se&ion 3 providee that the CommIaeIoners~ Court may abolish drainage dlatrlcta hav.ing no bonded in- dobteduosa after notiw and that all prapertg of the ,iWaiaage Uhtrlot ahakl pa** into oontrol mf the flood control er conaemation and reolwtlon district, When the Court act&, all of tbo propert of the drainage dls- trlet prcrsss to the flood oontrol or waaervatlon and reslamation dlrtriet* . :, Hop. San Lee - Page 4 W-641) Section 4 provlaee that the eleotlons pro- vialed for in Section 2 shall be held In the flood oontrol or oonaervation and reolamatlon dlatriet and that only qualified voterr who own taxable property In the flood oontrol em oonsenatlon and reolamation distriotr Ma who have rmaered it for taxation #hall be qualified to vote in rush eleotion and they ahall vote In the’ sleetion preolnot of their reridenos. Section 6 provides for return8 of the eleo- tlon to the Danai8rlonerr~ Court, deoLarlng the re- milt of the election, an&levy of tam8 to pay drain- age district indebtedness. Clearly, au& an eleotion may only be held In the oounty In whiob the Ommirrion- lr8’ Court war authorized to not. Section 7 provide8 that upon the effeotivr date of much election all of the property of the draln- age district shall pass into the control and Jurladlo- tlon of the officers of the flood oontrol or oonaerva- tlon ana reclamation dirtrict. Sootion 8 roabs NAfter the abolltlon of ruch drainage districts, as hereinabove provided, no oth- er drainage dintriots shall be oreate rlthln the boundarlee of the flood control diatriot.or oonservation and reolamatlon district e The pr6vZslons of this law’shall oontrol in the oountles to which it applied over the provision8 of any other laws auth- orMIng or regulating drainage districts. Aeta 1945, 49th Leg., p. 186, oh+ 14Sait We are of the opinion that Article 8193-l applies only to the abolitioa of draiaage dlrtriotr in fi00a control or oonservation and reclamation aimi0t8 oompo~sd of all or a portion of the territory of oaPb oount and does not prohibit the creation of drafnagb’ ai#tr 1 cts in such flood control or conservation and reolmaation districts whloh are oompoaed of more than one county; or whloh does not embrace territory of a drainage die~triot whloh ham been abolished. A large number of countlelr and parts of coun- ties are oontalned In the doecrlptlon of Brazes River Bon. Sam Lee - Page 5 (V-841) Conservatfon and Reclamation DIstrIat, (Acts, 1929, Forty-first Legislature, se00nd caned sea8lon, page 22, Chapter 13# as amended In Acta, 19310 Fortg-eeo- and Legislature, First Called Session, page Bu Chap- ter 5, Seotlon 1) and we assume that no fi00a con- trol district 0mp0taa of Brasorla County OP a por- tion of it has been created, by reason of which Sra- eorla County ia not wlthin the ~ovIsIons of Article 8193-l of Vernon’8 Civil Statutes, AS It appears In Subsection (d) of Section 9 in Vernon's Civil Statutes, Volume 21, page 539, the law under which Brazoria County Conservation and Reolsmation District exists and operates, the crea- tion of dlatrlcts such as Drainage Dfstrlcts, wIthIn said Brazorla County are expressly authorized, It reads: g(a) It Is, however, further pro- vided that If the eleotors of any defined area within this district desire they may become a Water Control and Improvement DIs- trict for the purpose of Independently pro- viding, operating, ana maintaineng improve- menta designed peculiarly to aerpe such de- fined area- such contained defined area may be so constituted under the appliuable operation thereof shall be constructed and operated In such manner as will conform to thie district plan to the greatest practl- cable degree, (As amended Acts 1935, 44th Leg., pe 56, oh, 19, sec. 4)," Article 8193-1, V.C.S, provides only for abolishing drainage districts situated wit&In the boundaries of flood control or conservation and reclamation districts com- posed of all or a portion of the temitoq ’ . . :