## THE ATTORNEY GENERAL OF TEXAS

Nay 22. 1987

HonorableLloyd Criss chairman Comictee on Labor and EmploymentRelations Texas Bouse of Representatives P. cl. Box 2910 Austin,Texas 78769 opinionNo. .JH-706

Re: Effect of chapter 56 of the Water Code with regard to the authority of the Galveston **County** DrainageDistrictNo. 2

Dear RepresentativeCriss:

You ask whether chapter 56 of the **Water** Code controls the actions of the Galveston County Drainage District No. 2. That drainage districtwas created in 1910under theDrainage Act **of** 1907,pursuant to article III, section 52. of the Texas Constitution. It is our opinion that the district is subject to the provisions of chapter 56.
Article III, section 52. of theTexas Constiturionwas amended in 1904 to authorize the establishmentof districts with limited taxing power for drainage and the prevention of flooding,among other things. Because of the restrictive limitation on the marimum amount of indebtednessallowedunder article III, section 52. articleXVI, section 59,was added to the Texas Constitution in 1917 to authorizedistricts without the debt limitation.
The Drainage Act of 1907provided for the creation of.a drainage district pursuant to article III. section 52. Acts 1907, 30th Leg., ch. 40. at 78. The Drainage **Act,** as amended.prescribed the creation. organization,powers, andduties of a district createdby authority of that act. Its provisions originally governed. and still govern, such a drainage district. The Drainage Act subsequently was codified as articles 8097-8193, in chapter 7, Title 128, Revised Statutes, 1925. and was recodifiedwithout substantivechanne in 1971 as chaoter 56 of the Water Code. See Mobile Oil Corp. v.-Katagorda County Drainage District No. 3, 597.W.2d 910 (Tex. 1980) (interpretationand effect of chapter 56 to .districtcreated prior to 1912 under Drainage Act): Hategorde County Drainage District-No. 1 v. Commissioners Co&t, 278 S.W.2d 539 (Ted. Civ. App. - Galveston 1955, writ ref'd n.r.e.) (interpretation and effect of artic1e.s8097 et seq., V.T.C.S., to districts created in 1907, 1911, and 1912under Drainage Act); Hidalgo CountyDrainage DistrictNo. I v. Swearingen, 158 S.W. 211 (Tex. Civ. APP. - San Antonio 1913, no writ) (interpretation and effect of Drainage Act of 1907); Wharton County Drainage District No. 1 v.

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Bigbee, 149 S.W. 381 (Tex. Civ. App. - Galveston 1912, writ ref'd) (interpretationand effect of Drainage Act of 1907);Parker v. Harris County Drainage District No. 2. 148 S.W. 351 (Tex. Civ. App. - Galveston 1912.writ ref'd) (interpretationand effectof DrainageAct of 1907).

A district createdunder article III, section 52, and governedby chapter 56 of the Water Code may convert to a district authorized to operate under article XVI, section 59, in which case limitations imposed by article III. section 52 and chapter 56 on debts to be incurred and taxes to be levied are not applicable to the district. Water Code $56.032.

You note **that** some statutoryprovisionswhich relate to drainage districts exist outside the Water Code and question the effect of those statutes on chapter 56 of theWater Code. A few stetutqry laws outside the Water Code relate generally co drainage districts as well as to other districts and govemental entities. For instance. such statutes provide exemption from appeal bond requirements in a civil case for certainnamed specialdistricts, includingdrainagedistricts (section6.003 of the Civil Practice aadRemedies Code), and authorize obligations of a municipality, district, or political subdivision, including a drainage district, to be made payable at the state treasurer'soffice (article4393-1. section 3.022 of theTreasuryAct; formerly article 4379b, V.T.C.S.). However, the great bulk of statutes relating to drainage districts that are not codified in the Water Code are special acts of the legislature that apply odly to designated draiuage districts. Such special acts are'not applicable to any district other than the drainagedistrictnamed or describedby the act. An example of such an act is chapter 467 enacted by the Fifty-sixth Legislature (article 8280-237. V.T.C.S.). which creates the Galveston County Drainage District No. 4 and provides its organization,powers, and duties. The provisions of chapter 467 of the Fifty-sixth Legislature apply only to the Galveston County Drainage District No. 4 and, hence, are not codified in the Water Code. See Acts 1959, 56thLeg., ch. 467, at 999.

- You also askwhether the Galveston CountyDrainageDistrictNo. 2 has authority to charge fees for reviewingplans for the construction of crossings over the district's ditches. A drainage district organized under and governed by chapter 56 is a subdivision of the statewhich is created for a specialpurpose and exercisesonly powers that are expressly granted or which are necessary and incident to the exercise of expressed powers. See Mobile Oil Corp. v. Matagorda CountyDrainage DistrictNo. 3, e (by annexing territory in gulf, drainage district acted beyond its limited powers); Attorney General Opinion O-1862 (1940) (drainagedistrict lacks statutoryauthority to use district funds tomaintain drainage ditches constructedby private owners).

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Subject to the constitutional limitations, chapter 56 expressly authorizes en annual lew of texes on district orooertv to **PW** bonded indebtedness and to coktruct and maintain distric; impkokments. Water Code 556.242. See also Matagorda County Drainage District v. Commissioners court, supra. Chapter 56 contains no provision authorizinga drainagedistrict to charge fees for reviewingplans for crossings over its ditches. We con&de that a drainage district governed by chapter 56 which charged such a fee would exceed its limitedpowers.
SUMMARY

The provisions of chapter 56 of the Water Code apply to and govern the Galveston County Drainage District No. 2. Most statutes relating to drainagedistricts that are not codified in the **Water** Code are special acts of the legislature that apply only to drainage districts named or described by the acts. A dreinage district governedby chapter 56 is not authorized to charge
a fee for reviewing plans for crossings over its ditches. 

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Attorney General of Texas

JACK HIGEJX%ER First AssistantAttorneyGeneral

MARYKRLLER ExecutiveAssistantAttorneyGeneral

JDDGR ZOLLIE STRARLFX SpecialAssistantAttorneyGeneral

RICK GILPIN Chairman,Opinion Committee Preparedby Nancy Sutton AssistantAttorney General

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