L .
THE ATJY~RNEY GENERAL
OP TEXAS
AUSTIN m.Texan
WI&L WILSON
AlTOHNEYGMNERAL
September 15, 1959
Honorable Durwood Manford, Chairman
Board of Water Engineers
P. 0. Box 2311
Capitol Station
Austin, Texas
Opinion No. WW-703
Re: Does Article 7880-21, as appli-
cable to a petition filed with
the Board of Water Engineers
seeking additional powers pursuant
to Art. 7880-3a, include the require-
ment of Art. 7880-12, that the peti-
tion or certified copy thereof be
filed with the County Clerk of each
affected County.
Dear Mr. Manford:
In your letter you state the following facts:
“A petition duly signed by more than fifty tax-paying
holders of title to lands in Dallas County Water Con-
trol and Improvement District No. 6, created by or-
der of the Dallas Commissioners’ Court on July 23,
1951,has recently been filed with this Board seek-
ing additional powers for disposal of waste and
providing facilities and service under the provisions
‘of Article 7880-3a, V.A.C.S. . . . .
“Article 7880-12 provides for the filing of the peti-
tion for the organization of a water control and im-
provement district with the County Clerk of each
affected county and states that the petition shall be
recorded in a book kept for that purpose in the
office of the County Clerk. Rule 630.2(b), Rules,
Regulations and Modes of Procedure of theBoard
of Water Engineers, 1955 Revision, referring to
. -
Honorable Durwood Manford, Chairman, page 2 (WW-703)
such proceedings, requires a certificate from the
County Clerk of each affected county that the peti-
tion or certified copy thereof has been filed in
his office in accordance with Article 7880-12. The
Board has instructed petitioners to file the peti-
tion or a certified copy thereof with the Dallas
County Clerk in accordance with the above rule.
However, petitioners, through their attorney,
have informed the Board that the Dallas County
Clerk refuses to file the petition for the reason
that there is no statutory authority for him to do
so.”
You then ask our opinion concerning the following questions:
“1. Does Article 7880-21, as applicable to a
petition filed with the Board of Water Engineers
seeking additional powers pursuant to Article
7880-3a, include the requirement of Article
7880-12, that the petition or certified copy thereof
be filed with the County Clerk of each affected
county.
“2. If question NO. 1 is answered in the affirma-
tive, does a County Clerk have statutory authority
and responsibility to file such petition or certified
copy thereof when presented to him in the proper
form and accompanied by appropriate fees.”
Article 7880-12, V. C. S., provides that a petition for the or-
ganization of a water control and improvement district (hereinafter
abbreviated as W. C. I. D. ) shall be filed in the office of the county clerk
of each county in whichthe district is situated and shall be recorded in a
book kept for that purpose in the office of the county clerk,
Article 7880-21, V. C. S., provides that the Board of Water
Engineers shall have exclusive jurisdiction to hear petitions for the or-
ganization of a W. C. I. D. which is proposed to include lands situated in
two or more counties. It states that “upon the filing of such petition” the
Board shall give notice in a prescribed manner and hear the petition in
the manner provided by law. The “filing of such petition” which invokes
the jurisdiction of the Board is the filing of the petition with the Board
and not the filing with the county clerk. Lovett v.‘Cronin, 245 S. W. 2d
Honorable Durwood Manford, Chairman, page 3 (Ww-703)
519 (Civ. App. 1951). A failure to file the petition with the county clerk
before a hearing on the petition by the Board, when the Board gave proper
notice as required by Article 7880-21, was held to be “only an irregularity
which did not make the creation of the district void.” Lovett v. Cronin,
supra at 522. Presumably to avoid this situation in the future, the Board
included in its rules of procedure in 1955 the requirement that a petition
for the creation of a W. C. I. D. be accompanied by “a certificate from
the County Clerk of each affected county that the petition or a certified
copy thereof has been filed in his office, in accordance with Article 7880-12.”
Rule 630.2(b) (S), Rules, Regulations and Modes of Procedure, Board of
Water Engineers, 1955 Revision.
In most situations, when the lands to be included in a district
lie wholly within one county, as in the case of Dallas County W. C. I. D. No.
6, “the formation thereof shall be considered and ordered by the county
commissioners’ court”, the jurisdiction of the Board of Water Engineers
being reserved for districts embracing lands in more than one county.
Article 7880-13, V. C. S. For this reason, Dallas County W. C. I. D. No.
6 was originally created by order of the Dallas County Commissioners’
Court. However, under the provisions of Article 7880-3a, exclusive juris-
diction is vested in the Board of Water Engineers to hear and determine
petitions for the creation of a W. C. I. D. embracing any of the following
matters:
“All works, facilities, plants, equipment, and appliances
in any and all manner incident to, helpful or necessary
to the collection, transportation, processing, disposal,
and control of all domestic, industrial, or communal
wastes, whether of fluids, solids, or composites, and
to gather, conduct, divert, and control local storm
waters, or other local harmful excesses of water. . . .‘I
Article 7880-3a’.
The Board has exclusive jurisdiction to hear and determine
1. An amendment in 1941 adding to this list the power to operate
fire engines and fire-fighting equipment was declared unconstitutional, not,
however, affecting the val idity of the remainder of the statute. Harris County
W. C. I. P. v. Albright. 153 Tex. 94, 263 S. W. 2d (1954); Deason v.
Orange County W. C. I. D. No. 1, 151 Tex. 29, 244 S. W. 2d 981 (1952).
. .,.
Honorable Durwood Manford, Chairman, page 4 (WW-703)
such petitions even though the lands to be included in the district lie wholly
within one county. Harris County W. C. I. D. v. Albright, 153 Tex. 94, 263
S. W. 2d 944 (1954); Lovett v. Cronin, supra.
Thus even though Dallas County W. C. I. D. No. 6 was created
in 1951 by a County Commissioners ’ Court, it was necessary to file a
petition with the Board of Water Engineers in order to apply for the above-
listed powers.
In hearing petitions for the creation of a W. C. I. D. having the
powers listed in Article 7880-3a. the Board of Water Engineers must “hear
and determine the same under the applicable provisions of Section 5 of
Chapter 280, Acts of the Regular Session of the Forty-first Legislature
/-Article 7880-21-j ” Article 7880-3a(6). Thus such a petition should be
filed with the appropriate county clerk, although the Board’s jurisdiction
to hear the petition is invoked as soon as the petition is filed with the Board
Lovett v. Cronin, supra (which involved a petition filed under Article 7880-3a).
Article 7880-3a also provides for petitions to add the listed
powers to W. C. I. D.‘s “now existing, or hereafter to be created” and
states that any such district which I’did not at the time of its creation have
conferred upon it the powers in this Section provided for, may receive and
assume the additional powers by this Section provided for in the same manner
and by the same procedures as are provided for in this Section. . . . /-with
certain provisions concerning elections> ” Article 7880-3a(7). Thu; such
a petition for additional powers should also be heard and determined under
the applicable provisions of Article 7880-21, and by virtue of the statutes
as interpreted in the Lovett case, w, such a petition should also be filed
with the appropriate county clerk.
The answer to your first question is that a petition (or a cer-
tified copy thereof) filed with the Board of Water Engineers seeking additional
powers pursuant to Article 7880-3a should also be filed with the county clerk
of each county in which the district is situated. The jurisdiction of the Board
to hear and determine the petition is invoked by the filing of the petition with
the Board and does not depend on its filing with the county clerk; but by vir-
tue of the rules of procedure adopted by the Board, such a petition filed with
the Board should be accompanied by evidence that it was filed with the
county clerk.
The answer to your second question is that the county clerk
does have statutory authority and responsibility to file such a petition or
certified copy thereof when presented to him in the proper form and accom-
panied by appropriate fees, such responsibility arising from Article 7880-12,
Honorable Durwood Manf ord, Chairman, page 5 (WW-703)
v. c. s. Such petitions should be recorded by the county clerk in the book
provided for the recording of petitions for the organization of W. C. I. D.s.
SUMMARY
A petition, or certified copy thereof, filed with the
.
Board of Water Engineers seeking additional powers
pursuant to Article 7880-3a should also be filed with
the county clerk of each county in which the district
is situated. The jurisdiction of the Board to hear
and determine the petition is invoked by the filing of
the petition with the Board and does not depend on
its filing with the county clerk.
The county clerk has statutory authority and res-
ponsibility to file such a petition or certified
copy thereof when presented to him in the proper
form and accompanied by appropriate fees by
virtue of Article 7880-12. Such petitions should
be recorded by the county clerk in the book pro-
vided for the recording of petitions for the organi-
zation of water control and improvement districts.
Yours very truly,
APPROVED: WILL WILSON
Attorney General of Texas
OPINION COMMITTEE
By:& & %giid
Geo. P. Blackburn, Chairman James D. McKeithan
Assistant Attorney General
B. H. Timmins, Jr.
C. Dean Davis
William E. Allen
Jay D. Howell
REVIEWED FOR THE ATTORNEY GENERAL
By: W. V. Geppert