Untitled Texas Attorney General Opinion

May 5, 1988

Honorable Ashley Smith Opinion No. JM-896
Chairman
Government Organization Re: Whether the city of
Committee Denison may withdraw from
Texas House of Representatives the Greater Texoma Utility
P. 0. BOX 2910 Authority (RQ-1224)
Austin, Texas 78769

Dear Representative Smith:

You ask three questions concerning the withdrawal of
a city from a special district:

1. May the city of Denison withdraw from
the Greater Texoma Utility Authority?

2. If so, what procedure is required for
the city of Denison to accomplish withdrawal?

3. If withdrawal is not available to the
city of Denison, does the unavailability
affect the constitutionality of the authority
as created?

We understand you to ask whether the city, by virtue of
its status as a municipal corporation, has the power to
withdraw from the authority. We conclude that it does not
and that this fact does not render unconstitutional the
existence of the authority or the act creating it.

The Greater Texoma Utility Authority was authorized
by the legislature in 1979 under the name "Greater Texoma
Municipal Utility District." Acts 1979, 66th Leg., ch.
97, at 177. It was renamed in 1983. Acts 1983, 68th
Leg., ch. 398, at 2160. The authority is a conservation
and reclamation district created pursuant to article XVI,
section 59, of the Texas Constitution. Districts created
pursuant to this provision are declared to be

governmental agencies and bodies politic and
corporate with such powers of government and

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Honorable Ashley Smith - Page 2 (JR-896)

with the authority to exercise such rights,
privileges and functions concerning the
subject matter of this amendment as may be
conferred by law.

Tex. Const. art. XVI, 559(b). A conservation and
reclamation district created by special act of the
legislature pursuant to this provision is a distinct
corporate and political entity, separate from other such
entities with which it may share territory. see Citv of
Pellv v. Harris Countv Water Control and Imwrovement
District No. 7, 198 S.W.2d 450 (Tex. 1946); Harris County
Flood Control District v. Mann, 140 S.W.Zd 1098 (Tex.
1940). It stands upon the same footing as counties and
other political subdivisions and exercises the state's and
its own police power in performing its governmental
functions. Banker v. Jefferson Countv Water Control and
Imnrovement District No. 1, 277 S.W.2d 130 (Tex. Civ. App.
- Beaumont 1955, writ ref'd n.r.e.).

As a creature of the state, a city cannot usurp
nowers otherwise conferred upon the legislature. Citv of
jefferson v. Railroad Commission, 455 S.W.2d 906 (Tex.
Civ. App. - Austin 1970, writ ref'd n.r.e.). In State ex
rel. Pan American Production Co. v. Texas Citv, 303 S.W.Zd
780, 782-783 (Tex. 1957), dism'd, 355 U.S. 603 (1958), the
Supreme Court noted that the territorial composition of
municipal corporations is essentially a political question
to be determined by the leg~islature, quoting Norris v.
Citv of Waco, 57 Tex. 635 (Tex. 1882). This rule is
especially relevant to the territorial composition of
political subdivisions such as conservation and reclama-
tion districts. See Tex. Const. art. XVI, 959(b). To
that end, the legislature provided for the initial
composition of the authority and for the annexation of
additional territory. Acts 1979, 66th Leg., ch. 97, !jZ(a)
and (b) at 177. The legislature has also prescribed
procedures for the exclusion of land or other property
from the authority. Id. 54(a), at 180. Those procedures,
where applicable, are contained in sections 54.701 through
54.710 of the Water Code and grant the board of directors
of the authority the power to exclude land from its
boundaries. There is no provision authorizing a city to
unilaterally withdraw from the district, and we have been
directed to no statute authorizing the same. Comware
V.T.C.S. art. 2351a-6, §14b (authorizing governing bodies
of certain cities to exclude the cities from rural fire
prevention districts with no bonded indebtedness if the
cities agree to provide fire protection services to the

p. 4410
 Honorable Ashley Smith - Page 3 UM-896)

excluded areas); Attorney General Opinion Nos. JM-605,
JM-453 (1986). Accordingly, your first question is
answered in the negative. We need not answer your second
question, since it is predicated on an affirmative answer
to your first question.

Regarding your third question, we note that the
courts have consistently held that municipalities may not
claim protection under the federal constitution from the
state. In Hunter v. Citv of Pittsburah, 207 U.S. 161,
178-179 (1907), the Supreme Court declared:

Municipal corporations are political
subdivisions of the State, created as
convenient agencies for exercising such of
the governmental powers of the State as may
be intrusted to them. . . . The State,
therefore, at its pleasure may . . . expand
or contract the territorial area, unite the
whole or a part of it with another munici-
pality, repeal the charter and destroy the
corporation. . . . In all these respects
the state is supreme, and its legislative
body, conforming its action to the state
Constitution, may do it will,
unrestrained by any provEion of the
Constitution of the United States. . . .
The power is in the State, and those who
legislate for the State are alone
responsible for any unjust or oppressive
exercise of it.

See also Williams v. Baltimore, 289 U.S. 36 (1933);
Trenton v. New Jersev, 262 U.S. 182 (1923): Newark v. New
Jersev, 262 U.S. 192 (1923).

Texas courts have held that municipalities have no
inherent right of local self-government that is beyond the
control of the state. State ex rel . Burnet Countv
Burnet Countv Hoswital Authoritv 495 S.W.2d 300, 3;,
(Tex. Civ. App. - Austin 1973, wri; ref'd n.r.e.). As to
cities exercising powers pursuant to article XI, section
5, of the Texas Constitution (the home rule amendment), we
note that such powers are limited by their charters or by
P
the constitution or general laws. Lower Colorado River
Authoritv v. Citv of San Marcos, 523 S.W.2d 641 (Tex.
1975). As we have already noted, article XVI, section
59, of the constitution authorizes the legislature to
pass laws creating and implementing conservation and
r

p. 4411
 ,

Honorable Ashley Smith - Page 4 (JM-896)

reclamation districts. The legislature has prescribed the
methods whereby land may be excluded from the Greater
Texoma Utility Authority. Acts 1979, 66th Leg., ch. 97,
54(a), at 180. Consequently, we cannot say that the
failure to provide cities the power to unilaterally
withdraw from the authority renders unconstitutional its
creation and continued operation.

SUMMARY

The city of Denison, Texas, may not
unilaterally withdraw from the Greater
Texoma Utility Authority. The failure of
the legislature to provide for such
withdrawal does not render unconstitutional
the creation or continued operation of the
authority.

JIM MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Steve Aragon
Assistant Attorney General

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