Untitled Texas Attorney General Opinion

NEV GENERAL
OF

March 25, 1969

Hon. John Allen
Chairman, Conservation and
Reclamation Committee
House of Representatives
C&pit01 Station
Austin, Texas 78711
Opinion No. M-364

Re: Constitutionality of
granting authority for
spacing ICules and regu-
lations to an under-
ground water conservation
district created by the
Dear Mr. Allen: Legislature.

Your recent letter on behalf of the Conservation and
Reclamation Committee, House of Representatives, requests
our opinion as to whether House Bill No. 128, If enacted
into law, will be valid. House Bill No. 128 reads as
follows:

“A BILL TO PE ENTITLED

AN ACT

authorizing the “Panhandle Ground
Water Conservation District No. 3
South of the Canadian River in Texas”
on approval of the qualified electors
in the district to make rules and re-
gulations requiring the spacing’of
irrigatitin tiells reasonable drstances
froin property lines; atid declaring an
emergency.
BE IT ENACTEDBY THE LEG&S&ATURE
OF THE STATE OF TEXAS:
“Section Ii, Upon the approval cif the quallfled bledtors
of the district, the Board of Directors of the “Panhandle

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 . .

Hon. John Allen, page 2 (M-364)

Ground Water Conservation District ‘No. 3 South of’the
Canadian River ‘in Texas” may’by resolution’ make rtiles and
regulations requirfng the spacing of irrigation wells
reasonable distances from property lines. These distances
shall have a direct reiaflonship to the spacing required
between irrigation wells.

“Sec. 2. (a) At the next regular election held In the
district after the effective date of this Act, the board of
directors shall submit to the qualified electors of the dis-
trict the proposition of whether or not the board of directors
may make rules and regulations for spacing irrigation wells
reasonable distanc,es from property lines.

“(b) The ballots shall be printed to allow for voting
for or against the propoeition: “Authorizing the board of
dlredtors of the district to make rules and regulations re-
quiring the spacing of irrigation wells reasonable distances
from property lines.”

“(c) If a majority of the qualified electors of the
district voting in the election approve the proposition,
the board of directors may proceed to make spacing rules
and regulations under the provisions of this Act. (Emphasis added).

This district was created pursuant to the general law
procedures set forth in Article 7880-3c, Vernon’s Civil
Statutes. Subsequently In 1957, the Legislature therein
provided that the creation, establishment, boundaries, and
election procedures creating the district were “ratified,
confirmed and validated” by the Legislature. Acts 55th
Leg. R.S. 1957, ch. 19, p. 27 (Article 8280-191 V.C.S.)
The district was,referred to in this validation law as
“Ground Water Conservation District Number Three, South of
the Canadian River;” it consists of a portion of Carson
and Gray Counties, and is ~described In Volume 1, Page 97,
of the Water District Records of Gray County, Texas. The
records of Texas Water Rights Commission (formerly Board
of Water Engineers ) , list the name’of this underground-
water district,’ as “(Panhandle) Ground Water Conservation
District No. 3, South of the Canadian River in Texas.” House
Bill No. 128’uses the name refletited’by Texas Water Rights
Commission records without the parentheses.

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Hon. John Allen, Page 3 (M-364)

In the above mentioned Act of the Legislature
ratifying confirming ahd’valldatlng this district
(A~ti6le’b280-191, supra), S&tions 2 and’3 v&lidle
incorporatd by reference Articles 7880-l through’1 721,
iructi referenc&titatuteri being the geneml laws relating to
uhddr+ground wateli conservation disiiricts. Trlmmler v.-
Carlton, 116 Tex. 572, 296 S.W. 1070 (1927).

This validating a&t, in Subsection (4), of Sectlon 2,
Article 8280-191, reads as follows:

“(4) To provide for the spacing of
wells producing from the underground
water reservoir or tiubdivisloti there-
“of and to regulate the productl;;r was
therefrom so -8s to’,minlmize as
practicable the drawdown of the water
table or the reduction of the artesian
pressure; provided,’ however, the’ owner
of’ttie land; hiti heirs, tis#lghs’&nd
lessees, Shall not be denied’ ei permit
to’drlll ti tie11 on his latid’arid pro-
duce utidergrotirid ivtiter ‘thetibftiom
subject to rules and regultitionb p?b-
mulgated hereunder to prevent waste.”
(Emphasis added.)

Thls,portion’of the law is to be construed In pari
materla with Subsection B, (4) of Article 7880-3c, as
amended (Acts 54th Leg. R.S. 1955, ch. 496, p. 1239).

The.proposed House Bill No. 128, if enacted, must be
construed.ln pari materia with the above statutes and would
vary the ~present 1Bw to require election approval of pro-
perty line spacing rules by the voters of the district
bbfore’lrrigation wells could be spaced “reasonabLe did-
trances from property lines *I’ Proper, spacing of irrigation
wells is grounded on minimizing drawdown and loss of
pressure as to underground water. Article 8280-191,
dupea; Whenever the district ‘board of directors finds
that ~th$s would be ‘,a$compllshed by’ water ‘well spacing in
relation to roperty 1,lnes ,or surface ,surve s of .lands and
when reasona iily related to~such purposes0 tKe regu.lati&
would be a valid delegation of the police power
underground water conservation district. Well ~~a,tf?&”

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Hon. John Allen, page 4 (~-364)

by Joe R. Greenhill, Proceeding of Water Law Conference,
University df'TexBs,"Mau'25-26T.1956, pages 146, et seq;;
H.&T.C; Railway Company-V.-East. ~_ '98 Tejc. 146, 81'~s:~. 279
04)'66LRA . ; 738 '107Air i?St:,Rep. 620, 4 Ahn: Cas. 827;
Fraziei v. Browns, 12 &hi0 State%$ (1861); Proration 'of
Ground Water by'Garland Casebier and J. H.'Starley; 1956
Water Law Conference Proceedings, pages 165, et seq.

This same type of spacing rules or regulations, as a
valid exercise of the police power, has been upheld as to
privately owned oil and gas in place so as to assure all
owners thereof an equal chance to recover their fair share
thereof, under valid rules and regulations of the Railroad
Commission. Brown v. Humble, Oil & Refining Company, 126
Tex. 296, 83,S.W.2d gjb (1935) "Ground Water Rights and
Regulation;" by'W. L; Matthews: 'Proceedings of, Water Law
Conference, University of Texas, May 22-23, 1959, pages
g-10.

Any rule or regulation providing for the spacing of
water wells at reasonable distances from property lines
would be subject to judicial review, as to validity and
reasonableness pursuant to Subsection F, of Article 7880-3~.

SUMMARY

House Bill No. 128, which would delegate
to "Panhandle Ground Water Conservation
District No. 3 South of the Canadian
River' rule-making powers to space irri-
gation wells in relation to surface property
lines is a constitutional exercise of the
police power; the rules would be review-
able by the courts as to their validity
and reasonableness.

Youflvery truly,

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HOG. John Allen, page 5 (~-364)

Prepared by:
Roger Tyler'
Assistant Attorney Qeneral

APPROVED:

OPINION COMMITTEE

Kerns TaylGr, Chairman
George Kelton, Vice-Chairman
James US. Swearingen
Houghton Brotinlee
Bill Corbusier
Vince Taylor

W. V. Geppert
Staff Legal Assistant

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