May5,1988

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

DearRepresentative Smith:

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

1. May the city ofDenison withdraw from the Greater Texoma Utility Authority?
2. If so,what procedure isrequired for the city ofDenison to accomplish withdrawal?
3. Ifwithdrawal isnot available to the city of Denison, does the unavailability affect the constitutionality of the authority ascreated?

We understand you to askwhether the city, by virtue of its status as amunicipal corporation, has thepower to withdraw from the authority. We conclude that itdoes not and that this factdoes not render unconstitutional the existence of the authority or the act creating it.
The Greater Texoma Utility Authority was authorized by the legislature in 1979under 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 theTexas Constitution. Districts created pursuant to this provision aredeclared tobe

governmental agencies andbodies politic and corporate with suchpowers ofgovernment and



### p.4409Honorable Ashley Smith -Page 2 (JR-896)

with the authority to exercise such rights, privileges and functions concerning the subject matter of this amendment asmay 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 andpolitical entity, separate from other such entities with which it may share territory. see Citv of Pellvv. Harris Countv Water Control and Imwrovement District No. 7, 198S.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, acity 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.). InState ex rel. PanAmerican Production Co.v.Texas Citv, 303 S.W.Zd 780, 782-783 (Tex. 1957), dism'd, 355U.S. 603 (1958), the Supreme Court noted that the territorial composition of municipal corporations isessentially apolitical question tobe 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 asconservation and reclamation 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 insections 54.701 through 54.710 of theWater Code andgrant the board ofdirectors of the authority the power to exclude land from its boundaries. There isno provision authorizing a city to unilaterally withdraw from thedistrict, and we have been directed to no statute authorizing the same. Comware V.T.C.S. art. 2351a-6, §14b (authorizing governing bodies ofcertain cities to exclude the cities from rural fire prevention districts with nobonded indebtedness if the cities agree to provide fire protection services to the

p.4410Honorable 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. Weneed not answer your second question, since it ispredicated on anaffirmative answer toyour first question. Regarding your third question, we note that the courts have consistently held thatmunicipalities claim protection under may not the federal constitution from the

P

r state. InHunter v. Citv ofPittsburah, 207U.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 itspleasure may . . . expand or contract the territorial area, unite the whole orapart of itwith another municipality, repeal the charter anddestroy the corporation.

. . . In all these respects the state is supreme, and its legislative body, conforming its action to the state Constitution, may do unrestrained by any provEion it will, 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. NewJersev, 262U.S. 182 (1923): Newark v. New Jersev, 262U.S. 192 (1923).

Texas courts have held that municipalities have no inherent right of local self-government that isbeyond the control of the state. State ex rel

. Burnet Countv Burnet Countv Hoswital Authoritv 495 S.W.2d (Tex.Civ.App. -Austin 1973,wri; ref'd 300, 3;, n.r.e.). As to cities exercising powers pursuant to article XI, section 5,of the Texas Constitution (thehome rule amendment), we note that suchpowers are limited by their the constitution or general laws. charters orby Lower Colorado River Authoritv v. Citv of SanMarcos, 523 S.W.2d 641 (Tex. 1975). As wehave already noted, article XVI, section 59, of the constitution authorizes the legislature to pass laws creating and implementing conservation and

p.4411Honorable Ashley Smith -Page 4 (JM-896) ,

reclamation districts. The legislature hasprescribed 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 failure to provide say that the
withdraw from the cities the power to unilaterally 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 ofTexas

MARY KELLER FirstAssistant Attorney General

LOUMCCREARY Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY Special Assistant Attorney General

RICK GILPIN Chairman, Opinion Committee Prepared by SteveAragon Assistant Attorney General

p.4412