February 28, 1989
Honorable Terra1 Smith Opinion No. JM-1024
Chairman
Natural Resources Re: Whether a commissioners
Texas House of Representatives court may authorize the
P. 0. Box 2910 creation of a single-county
Austin, Texas 78769 underground water district
under section 52.022 of the
Water Code (RQ-1606)
Dear Representative Smith:
You ask:
Under Subchapter B, Chapter 52, Water Code,
is the Texas Water Commission the only
governmental entity that may authorize the
creation of an underground water district or
may a county, in the case of a proposed
single-county district, authorize the crea-
tion of a district pursuant to Section
52.022, Water Code, and Chapter 51, Water
Code?
Chapter 52 of the Water Code provides for the creation
and operation of underground water conservation districts.
Subchapter B provides for the creation of such districts
generally.
We conclude that the Texas Water Commission is the only
governmental body having jurisdiction over the creation of
an underground water conservation district pursuant to
subchapter B of chapter 52 of the Water Code. A commis-
sioners court has no such authority.
Provisions for the creation of underground water
conservation districts were first adopted in 1949. Acts
1949, 51st Leg., ch. 306, § 1, at 559. The 1949 act's
provisions added new section 3c to the provisions of a 1925
act which had provided for the creation and operation of
water control and improvement districts. Acts 1925, 39th
Leg., ch. 25, S 1, at 86.
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Honorable Terra1 Smith - Page 2 (JM-1024)
Subsection B of section 3c, added by the 1949 act, pro-
vided in part:
Districts1 may hereafter be created for
the conservation, preservation, protection,
and recharging and the prevention of waste of
the underground water of an underground water
reservoir or subdivision thereof, defined and
designated in accordance with the provisions
of Subsection C of this Section 3c. To
accomplish these purposes pursuant to Section
59 a, b, and c, of Article XVI of the Consti-
tution of Texas, the administrative and
mocedural orovisions as now or hereafter
contained in Chanter 25. Acts of the Reoular
Session of the Thirtv-ninth Leaislature of
the State of Te a . 1925. as amended. shall
@DDlV 1'n so faZ is annlicable to such Dis-
tricts, but such Districts shall not be
organized for any purposes except those set
forth in this Section 3c. (Emphasis and
footnote notation added.)
The 1925 act had provided for the creation of water
control and improvement districts pursuant to a petition of
landowners. Acts 1925, 39th Leg., ch. 25, 58 10-17, at
88-89. Section 18 of the 1925 act provided in part:
The county commissioners' court shall have
exclusive jurisdiction to hear, consider and
determine all such petitions for organization
in one county . . . .
Acts 1925, 39th Leg., ch. 25, 5 18, at 89. . Section 19
provided for the commissioners court granting such
petition if it appeared to it that the organization of th:
district was feasible and practicable and would benefit the
included land or be Itapublic benefit, or utility."
Section 21 of the 1925 act provided in part:
The State Board of Water Engineers shall
have jurisdiction to hear and determine all
petitions for organization of a district
1. nDistrict** was defined in the 1949 act as "an
Underground Water Conservation District which includes
within its purposes and plans those functions authorized by
the provisions of this Section 3c.l' Subsection A, section
3c.
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Honorable Terra1 Smith - Page 3 (JM-1024)
which included land in two or more
counties. . . .
Said board shall consider such petitions
in the same manner and purpose herein provid-
ed for consideration of petitions by the
commissioners' court for formation of dis-
tricts in one county.
Acts 1925, 39th Leg., ch. 25, 5 21, at 90.
It appears that the above-quoted language of subsection
B of section 3c added by the 1949 act contemplated that, as
with the water control and improvement districts provided
for in the 1925 act, the commissioners court would have
jurisdiction over the formation of underground water conser-
vation districts in one county, and the State Board of Water
Engineers would have jurisdiction over the formation of such
districts including territory of more than one county. Sub-
section C of'the 1949 act provided specifically for the con-
sideration of petitions for the formation of underground
water conservation districts '*by a Commissioners Court or
the Board, as the case may be . . . .I' Acts 1949, 51st
ch. 306, g 1, at 561. &S Attorney General Opinion
t%J (1950).
In 1971, the provisions of the 1925 and 1945 acts were
codified as chapters 51 and 52, respectively, of the Water
Code. Codification was not intended to make any substantive
changes in the state water laws. m Water Code 5 1.001:
Acts 1971, 62d beg., ch. 58, 5 1.001, at 110. The second
sentence of subsection B of the 1949 act, quoted above,
became the source of the section to which you refer in your
request, section 52.022, which then provided:
Except as otherwise provided by this sub-
chapter, the provisions in Chapter 51 of this
code for creating water control and improve-
ment districts apply to the creation of un-
derground water conservation districts to the
extent that those provisions may be made ap-
plicable.
(see, Revisor's Note to section 52.022.)
Chapter 51 carried forward the provisions of the 1925
act giving the commissioners court jurisdiction over the
creation of water control and improvement districts in a
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Honorable Terra1 Smith - Page 4 (JM-1024)
single county, and the Texas Water Rights Commission2 juris-
diction over the creation of a district encompassing terri-
tory in two or more counties. &.g 09 51.016-51.022, 1971
Water Code.
Similarly, chapter 52 continued to provide for the
considering and granting of petitions for the creation of
underground water conservation districts by either a commis-
sioners court or the Texas Water Rights Commission. See
1971 Water Code 8 52.023 and 852.025 . It thus appears that
under the 1971 Water Code, the commissioners court had
jurisdiction over the creation of an underground water
conservation district encompassing land in only one county.
However, in 1973, the legislature amended chapter 52 to
delete all references to the commissioners court's jurisdic-
tion over the creation of underground water conservation
districts. Acts 1973, 63d Leg., ch. 598, §S 1-5, at 1641.
Section 52.022 was not amended at that time and continued to
provide that "[elxcept as otherwise provided by this sub-
chapter, the provisions of Chapter 51 of this code for
creating water control and improvement districts apply to
the creation of underground water conservation districts to
the extent that those provisions may be made applicable.qq
But sections 52.023 and 52.025 were amended as follows in
pertinent pa*:
Section 52.023(a)
He&her Qhe commission aer-a--eemmissieners
emu* may R& consider a petition for the
creation of a district unless the proposed
boundaries of the district are coterminous
with the boundaries of an underground water
reservoir or a subdivision of an underground
water reservoir, as previously designated by
the commission.
Section 52.025
(a) If the eeaaaaissieacrs-eea*--Ed--ale
commission finds that the district is feasi-
ble and practicable, that it would be a
benefit to land in the district, and that it
would be a public benefit or utility, the
2. The duties of the Board of Water Engineers were
transferred to the Texas Water Rights Commission in 1965.
Acts 1965, 59th Leg., ch. 296, 5 9, at 585.
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Honorable Terra1 Smith - Page 5 (JM-1024)
i
eeauaissieaers-eeur~-Ed--~ha commission shall
make these findings and grant the petition.
(b) If the eeaaaaissieaars-eeurh--or--the
commission finds that the district is feasi-
ble and practicable, that it would not be a
benefit to land in the district, that it
would not be a public benefit or utility, or
that it is not needed, the eemmissieaers
eeurt-or-the commission shall refuse to grant
the petition.
The bill analysis to the 1973 act (H.B. 935) states
that the act "[g]ives the Water Rights Commission exclusive
authority to create a district" and VV[r]emoves from the
local commissions [sic] court the authority to grant or
refuse a petition for creation of a district."
Indeed the key provision in chapter 51 for the granting
or refusing of a petition for creation of a district is
expressly inapplicable to chapter 52 underground water con-
servation districts. Water Code 5 51.021(d).3 Thus, even
drawing on chapter 51 provisions for purposes of creation of
a chapter 52 underground water conservation district, there
is no provision for a commissioners court granting or
refusing a petition for creation of such a district.
Section 52.025,. subsequent to the 1973 act, confers such
authority only on the Texas Water Ri hts Commission or its
successor the Texas Water Commission. 1
A 1985 act substantially amended chapter 52. Acts
1985, 69th Leg., ch. 133, 59 l-6, at 617. However, we find
nothing in that act reinstating the authority of the commis-
sioners court with respect to the creation of underground
3. The provisions of subdivision (d) of section 51.021
first appeared in 1957. Acts 1957, 55th Leg., ch. 323, at
786. The 1957 act provided alternative procedures for the
granting or refusing of a petition by a commissioners court
or the Board of Water Engineers in connection with the
creation of an underground water conservation district. At
present, only section 52.025 provides for the granting or
refusing of such a petition. Since the 1973 amendment, that
section has conferred such authority only on the Texas Water
Rights Commission or its successor, the Texas Water
Commission. See footnote 4, infra.
4. A 1977 act created the Texas Water Commission as the
successor to the Texas Water Rights Commission. Acts 1977,
65th beg., ch. 870, 5 9, at 2207.
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Honorable Terra1 Smith - Page 6 (JM-1024)
water conservation districts under subchapter B of chapter
52. The act's amendment to section 52.022 was to specify
that the chapter 51 provisions applied only to creation of
underground water conservation districts under subchapter B
or chapter 52, as the legislature added in the same bill a
subchapter C providing for the creation of such districts in
"critical areas." None of the provisions of subchapter B
reference the commissioners cou*, in connection with
creation or otherwise. The subchapter provides for the
granting or refusing of a creation petition only by the
commission. Water Code § 52.025.
Therefore, in response to your question, we conclude
that the Texas Water Commission is the only governmental
body having jurisdiction over the creation of an underground
water conservation district pursuant to subchapter B of
chapter 52 of the Water Code. A commissioners court has no
such authority.
SUMMARY
The Texas Water Commission is the only
governmental body having jurisdiction over
the creation of an underground water conser-
vation district pursuant to subchapter B of
chapter 52 of the Water Code. A
commissioners court has no such authority.
JIM MATTOX
Attorney General of Texas
MARYKELLER
First Assistant Attorney General
Lou MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STBAKLBY
Special Assistant Attorney General
RICK GILPIN
Chairman, opinion Committee
Prepared by William Walker
Assistant Attorney General
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