Untitled Texas Attorney General Opinion

The Attorney General of Texas
S~q,tmber 15, 1986
JIM MAlTOX
Attorney General

Supreme Court Building Honorable Danny Anct,ondo Opinion No. m-544
P. 0. Box 12548
El Paso County Attorney
Austin. TX. 78711. 254S
5121475-2501 Room 201, City-County Bldg. Re: Whether a political subdivision
Telex 9101874.1367 El Paso, Texas 79SOl may annex territory which the legis-
Telecopier 512/4750288 lature has designated as territory
to be included in a new special
714 Jackson, Suite 7CO
district
Dallas, TX. 75202-4508
2141742-8944 Dear Mr. Anchondo:

Pursuant to article XVI, section 59, of the Texas Constitution,
4824 Alberta Ave., Suite 154
El Paso, TX. 799052793
the Sixty-ninth Legislature authorized the creation of a new water
91515333484 conservation and rwlamation district to be known as the El Paso
County Lower Valley Mater District Authority. Acts 1985, 69th Leg.,
ch. 780, at 5611. The act authorizing the'creation of the district
leq! Texas, Suite 700 contains the followi,ngpertinent language:
ston, TX. 77002.3111
i W223-5888
Before thaa authority is created, a confirmation
election must be called and held within the
SO5 Broadway, Suite 312 boundaries of the proposed authority in accordance
Lubbock, TX. 79401-3479 with Sect:Lons54.026 through 54.029, Water Code.
8061747-5238
Creation of the authority must be approved by a
majority of the qualified voters of the proposed
4309 N. Tenth, Suite S authority voting at the election.
McAllen, TX. 7550%1685
5121882.4547 Id. 52B at 5616-5617.
-

200 Main Plaza, Suite 400 The El Paso County Water Authority , also a water conservation and
San Antonio, TX. 78205.2797 reclamation district, was established pursuant to article XVI, section
51212254191 59, of the Texas Constitution in 1961. Acts 1961, 57th Leg., 1st
C.S., ch. 32, at 136. See also Acts 1969, 61st Leg., ch. 718. at
An Equal Opportunity/
2098; Acts 1971, 6:!nd Leg., ch. 314, at 1254. The El Paso County
Affirmative Action Employer
Water Authority has the authority to annex land. Acts 1971, 62nd
Leg., ch. 314, at 1:!54,1255. The board of directors of the district
has received petitions submitted by a number of landowners requesting
annexation to the XL Paso County Water Authority. See Water Code
6650.051, 51.714-51.717. The land described in thesepetitions lies
within the proposed boundaries of the El Paso County Lower Valley
Water District Authority. Your office requests our opinion on the
following question:

p. 2505
 I

Honorable Danny Anchondo - Eage 2 (JM-544)

?

Can territory des:ignatedby the legislature to be
included in the [El Paso County] Lower Valley
[Water] District tYuthoritybe legally annexed by
another political subdivision prior to the
confirmation election as called for in the
legislative enactment of the new district?

Assuming that the annexing apoliticalsubdivision has properly acquired
jurisdiction over the dispumd territory prior to the commencement of
legal proceedings over the :sa.mearea by the newly designated water
district, your question cm be answered in the affirmative. The
effect of such annexation muld be to detach the annexed territory
from the territory of the pmposed district. An explanation follows.

Water districts are pol.iticalsubdivisions of the state and stand
on the same footing as counties. See Tex. Const. art. XVI, 159(b);
Sears V. Colorado River Municipal Water District, 487 S.W.2d 810 (Tex.
Civ. App. - Eastland 1972, &it ref'd n.r.e.). For the purposes of
article III, section 53, cf the Texas Constitution, however, water
districts are regarded as municipalities. Attorney General Opinion
V-787 (1949) and authoritier;cited therein. Further, it has been held
that the orinciDles acmlicalAe to annexation bv mniciualities should
also apply to water districts. See State ex rel. Spring Bill Utility
District V. City of Longview. 642.W.2d 544. 549 (Tex. App. - Tyler
1982). rev'd on other grout+, 657 S.W.2d 430 (Tex. 1983). -

The general rule in thJ.s,
state is that two municipal corporations
cannot exercise the same nen,eraleovernmental authority over the same
area. See City of NassauizT V. City of Webster, 600 i.W.2d 905 (Tex.
Civ. Apt - Houstonflst.s:t.] 1980). writ ref'd n.r.e. per curlam.
608 S.W.2d 618 (Tex. 1980); City of Galena Park v. City of Houston,
133 S.W.2d 162 (Tex. Civ. ATIF'.
- Galveston 1939, writ ref'd); Attorney
General Opinion~JM-400 (198j;j.

In resolving disputes between municipal corporations which assert
jurisdiction over the same territory, the courts have adopted a rule
of priority. Between two political subdivisions of concurrent or
coordinate authority, the courts adhere to the following rule:

The municipal aut~xlrity,be it one having a legal
existence or in the process of organization, which
first ccmnences legal proceedings asserting
authority over a given territory thereby acquires
a jurisdiction over the same which cannot
thereafter be defeated by a subsequent attempted
exercise of juri~~dictionby a similar municipal
organization. [C::tationsomitted].

p. 2506
 Honorable Danny Anchondo - Iage 3 (JM-544)

State ex rel. City of Fort Worth V. Town of Lakeside, 328 S.W.2d 245,
247 (Tex. Civ. App. - Fort-Worth 1959, writ ref'd). Applying this
rule to the present inquiry, it becomes necessary to determine what
constitutes the commencemen!:of legal proceedings sufficient to grant
one entity jurisdiction omx a given area to the exclusion of the
other. It would be helpful tto begin by discussing some matters which
do not determine the questim of jurisdiction.

For instance, it is clear that the legislature's designation of
the boundaries of a propased water district does not confer any
particular rights with respect to such boundaries. A water district
is not "created" until it mceives the voters' approval at a confirma-
tion election and may not exercise any of its powers prior to the
confirmation election. See Water Code 954.026; Attorney General
Opinion Nos. NW-380 (1981)7%7-1 (1957).

In addition, the court:3hold that a political subdivision has no
vested or contract rights Lu its designated boundaries. See Lyford
Independent School District-v. Willamar Independent School District,
34 S.W.2d 854 (Tex. Comm'~~ App. 1931, judgmt adopted); San Diego
Independent School District V. Central Education Agency, 634 S.W.2d 50
(Tex. App. - Austin 1982, no writ); Hunt County v. Rains County, 7
S.W.2d 648 (Tex. Civ. A?l,. - Texarkana 1925, no writ). The
r legislature may provide methods whereby such boundaries are reduced,
provided the reduction in territory does not prevent the political
subdivision from meeting itf,lawful indebtedness. -Id.

The legislature has provided such methods in this instance. The
boundaries of the El Paso County Lower Valley Water District Authority
are subject to the creation of two municipal utility districts also
authorized by the Sixty-ninth Legislature. See Acts 1985, 69th Leg.,
chs. 683, 684, at 5121, 5132 (authorizing Homestead Municipal Utility
Districts Nos. 1 and 2). If'either of the municipal utility districts
is approved at a confirmation election, the territory of the approved
district is to be excluded from the boundaries of the El Paso County
Lower Valley Water District Authority. Acts 1985, 69th Leg., ch. 780,
§2A, at 5611, 5616.

In one instance a cour'cheld that a water district could condemn
land entirely within the boundaries of another water district where
the power of eminent domain was granted by statute and its exercise
was essential to the operal:ionof the water district, and where the
latter district was no more t:hana bare legal entity, having exercised
none of its authorized powers. Lower Nueces River Water Supply
District V. Cartwright. 274 S.W.2d 199 (Tex. Civ. App. - San Antonio
1954, writ ref'd n.r.e.). Thus, we do not believe that the
legislature's "designation" of the El Paso County Lower Valley Water
District Authority constitutes the collrmencementof legal proceedings
so as to confer upon the proposed district exclusive jurisdiction over
P

p. 2507
Honorable Danny Anchondo - I'age4 (JM-544)

the disputed territory. Cf. Jackson V. Texas Water Rights Commission,
512 S.W.2d 696 (Tex. CivT$p. - Beaumont 1974, no writ) ("designa-
tion" of a "ate; district &Les not confer authority to act prior to
its "creation").

The courts hold that tne submission of a petition for annexation
which is regular on its face is sufficient to invoke the jurisdiction
of the political subdiviriion to determine whether the petition
satisfies statutory requi1:ements. School Board of the City of
Marshall v. State, 343 S.W.2d 247 (Tex. 1961). This jurisdiction is
effective against subsequent attempts by adverse parties to exercise
jurisdiction over the same territory. Pennington V. City of Corpus
Christi, 363 S.W.2d 502 (Tel:.Civ. App. - San Antonio 1962, writ ref'd
n.r.e.). cert. denied, 375 U.S. 439 (1964).

The courts also holi that the filing of a petition for
incorporation as a separate municipality marks the commencement of
legal proceedings so as to give that entity jurisdiction over the
territory described in the petition and to preclude the subsequent
attempt of another municipality to annex the same territory. See
Perkins v. Ingalsbe, 347 S.W.2d 926 (Tex. 1961); Universal City7
City of Selma, 514 S.W.2d (14 (Tex. Civ. App. - Waco 1974. writ ref'd
n.r.e.); City of El Paso v. Eltateex rel. Town of Ascarate, 209 S.W.2d
989 (Tex. Civ. App. - El PiGlo 1947, writ ref'd). However, one court
held that where the filing of a petition for incorporation did not
result in the procuring of an order from the county judge calling for
an election on the question #ofincorporation, a city was not deprived
of the authority to annex t:he territory described in the petition.
State ex rel. Wilkinson V. Self, 191 S.W.2d 756 (Tex. Civ. App. - San
Antonio 1945, no writ). But%=
--- State ex rel. City of Fort Worth V.
Town of Lakeside, 328 S.W.:!d;245 (Tex. Civ. App. - Fort Worth 1959,
writ ref'd) (petition for in#corporationwas offered to county judge's
assistant for acceptance, but was mistakenly rejected by assistant;
court held that this was s;ufficient to confer authority upon new
municipality and that city's attempt to annex same territory one day
later was without legal eE:Eect). These cases do not address the
situation in which the formation of a political subdivision is not
initiated by petition, but by an act of legislature. Nonetheless, we
believe that these cases do offer guidance in resolving our inquiry.

In determining whether one political subdivision has acquired
jurisdiction over disputed territory to the exclusion of another, the
courts require some officia:.act taken pursuant to law which manifests
the intention of the political subdivision to exercise jurisdiction
over the disputed territory. See. e.g., Perkins v. Ingalsbe. supra
(filing of petition for in'zorporationfollowed by order from county
judge calling for election on question of incorporation); State ex
rel. City of Fort Worth v. Jown of Lakeside, supra (same); Universal
City v. City of Selma, sa(s"e);City El Paso V. State ex rel.

p. 2508
Honorable Danny Anchondo - P%Se 5 (JM-544)

Town of Ascarate. supra (sane). See also School Board of the City of
Marshall v. State, supsa (inftiation of annexation proceedings by city
coxaaission);Beyer V. Temple=, 212 S.W.2d 134 (Tex. 1948) (first
reading of annexation ordinanjcein accordance with city charter); s
of Arlington V. City of Grand Prairie, 451 S.W.2d 284 (Tex. Civ. App.
- Fort Worth 1979, writ refTd n.r.e.) (same); Pennington V. City of
Corpus Christi, supra (initiation of annexation proceedings by city
council); City of Fort Wort,h V. State ex rel. Ridglea Village, 186
S.W.2d 323 (Tex. Civ. App. - -Fort Worth 1945, writ ref'd w.o.m.) (city
council's adoption of resolttion pursuant to article 1171, V.T.C.S.).
In the absence of any such official act, the political subdivision is
deemed to have abandoned its jurisdiction over the territory. -See
State ex rel. Wilkinson V. Self,
-- supra.

Accordingly, the El P.aso County Water Authority may annex
territory within the designated boundaries of the proposed El Paso
County Lower Valley Water District Authority if it has received valid
landowner petitions for annexation and if it has not abandoned its
jurisdiction over the temitory. i.e., it has not rejected the
petitions for annexation. 3ee WaterCode 1950.051, 51.714 (addition
of land to water district by-petition of landowner); 51.716 (hearing
and determination on petition by board of directors). The authority
to annex the disputed terr:.torywould not exist, however, if it is
determined that the El Pilao County Lower Valley Water District
Authority had taken official action with respect to the entire area
encompassed by its proposed boundaries before the petitions for
annexation were filed with the competing district. For the purposes
of this opinion, an order b:r the temporary board of directors calling
the confirmation election would constitute the conxaencementof legal
proceedings sufficient to ccnfer jurisdiction over the disputed areas.
See Acts 1985, 69th Leg., ch. 780, 02B. at 5616-5617; Water Code
-4.026-54.029 (relating MI confirmation election); Election Code
$3.004(b) (requiring the governing body of a political subdivision to
issue order for election relating to the affairs of the political
subdivision when laws requiring the election do not delegate such
authority).

You have not supplied us with enough information upon which to
base a complete answer. Ahmming, however, that the El Paso County
Water Authority has properly acquired jurisdiction over the territory
described in the petitions for annexation and has lawfully annexed
such territory, the legal ef'fectof this action would, in our opinion,
be to detach the territory :Erom the desisnated boundaries of the El
Paso County Lower Valley-water District-Authority. See generally
Lyford Independent School Jistrict V. Willamar Independent School
District, s; Young v. Edna Independent School District, 34 S.W.2d
857 (Tex. Comm'n App. 1931, judgmt adopted); San Diego Independent
School District V. Central Education Agency, w.

p. 2509
 ,

Honorable Danny Anchondo - Pz~ge6 ~(JM-544)

Territory situatkl within the proposed boundaries
of a newly designated water district may be annexed
prior to the designated district's calling of a con-
firmation election by another water district which
has acquired jurisdktion over the territory.

JIM MATTOX
Attorney General of Texas

JACK EIGRTOWER
First Assistant Attorney Genwal

MARY KELLER
Executive Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Rick Gilpin
Assistant Attorney General

-,

p. 2510