JIM MAlTOX Attorney General

Supreme Court Building P. 0. Box 12548 Austin. TX. 78711. 254S 5121475-2501 Telex 9101874.1367 Telecopier 512/4750288

714 Jackson, Suite 7CO Dallas, TX. 75202-4508 2141742-8944

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An Equal Opportunity/ Affirmative Action Employer 

# The Attorney General of Texas

S~q,tmber 15, 1986

HonorableDanny Anct,ondo El Paso CountyAttorney Room 201, City-County Bldg. El Paso, Texas 79SOl OpinionNo. m-544

Re: Whether a political subdivision may annex territorywhich the legislature has designated as territory to be included in a new special district

Dear Mr. Anchondo:

Pursuant to article XVI, section 59, of the Texas Constitution, the Sixty-ninth Legislature authorized the creation of a new water 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 contains the followi,ng pertinent language:

Before thaaauthority is created, a confirmation election must be called and held within the boundariesof theproposed authority in accordance with Sect:Lons54.026 through 54.029, Water Code. Creation of the authority must be approved by a majority of the qualified voters of the proposed authorityvoting at the election.

Id. 52B at 5616-5617. - The El Paso CountyWater Authority,also a water conservationand reclamationdistrict,was establishedpursuant to articleXVI, section 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 2098; Acts 1971, 6:!ndLeg., ch. 314, at 1254. The El Paso County 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 receivedpetitions submittedby 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 followingquestion:

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Can territory des:ignated by the legislature to be included in the [El Paso County] Lower Valley [Water] District tYuthority be legally annexed by another political subdivision prior to the confirmation election as called for in the legislativeenactmentof the new district?
Assuming that the annexingapolitical subdivisionhas properly acquired jurisdictionover the dispumd territoryprior to the commencement of legal proceedings over the :sa.me area 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 territoryof the pmposed district. An explanationfollows.

Water districtsare pol.itical subdivisionsof the state and stand
on the same footing as counties. See Tex. Const. art. XVI, 159(b); SearsV. ColoradoRiverMunicipalWater 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 annexationbv 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 twomunicipal corporations cannot exercise the same nen,eral eovernmentalauthority over the same area. See City of NassauizT V. City ofWebster, 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 GeneralOpinion~JM-400 (198j;j.

In resolvingdisputesbetweenmunicipal corporationswhich assert jurisdiction over the same territory, the courts have adopted a rule of priority. Between two political subdivisions of concurrent or coordinateauthority,the courts adhere to the followingrule:

The municipal aut~xlrity, be it one having a legal existenceor 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::tations omitted].

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r

P 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 legalproceedings sufficient to grant
one entity jurisdiction omx a given area to the exclusion of the other. It would be helpful ttobegin by discussing somematters which do not determine the questim of jurisdiction.

For instance, it is clear that the legislature'sdesignation 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 thevoters' approval at a confirmation election and may not exercise any of its powers prior to the confirmation election. See Water Code 954.026; Attorney General OpinionNos. NW-380 (1981)7%7-1 (1957).

In addition, the court:3 hold that a political subdivisionhas 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 IndependentSchoolDistrictV. Central EducationAgency, 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 legislaturemay provide methods whereby such boundaries are reduced, provided the reduction in territory does not prevent the political subdivisionfrommeeting itf,lawful indebtedness. Id. - The legislaturehas provided suchmethods in this instance. The boundaries of the El Paso CountyLowerValleyWater DistrictAuthority
are subject to the creation of two municipal utility districts also authorizedby the Sixty-ninthLegislature. See Acts 1985, 69th Leg., chs. 683, 684, at 5121, 5132 (authorizingHomesteadMunicipal Utility DistrictsNos. 1 and 2). If' either of themunicipal utility districts is approved at a confirmationelection, the territory of the approved district is to be excluded from the boundaries of the El Paso County Lower ValleyWater DistrictAuthority. Acts 1985, 69thLeg., ch. 780, §2A, at 5611, 5616.

In one instance a cour'c held 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 latterdistrictwas nomore t:han a bare legal entity,having exercised
**none** of its authorized powers. Lower Nueces River Water Supply DistrictV. 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 collrmencement of legal proceedings
so as to conferupon theproposeddistrict exclusive jurisdictionover

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

The courtshold that tne submissionof a petition for annexation which is regular on its face is sufficient to invoke the jurisdiction of the political subdiviriionto 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, 375U.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. Eltate ex rel. Town of Ascarate, 209 S.W.2d 989 (Tex. Civ. App. - El PiGlo1947,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 electionon the question #ofincorporation,a city was not deprived of the authority to annex t:heterritory described in the petition. State ex rel.WilkinsonV. 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) (petitionfor in#corporation was offered to county judge's assistant for acceptance, but was mistakenly rejected by assistant; court held that this was s;ufficientto 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 initiatedby petition, but by an act of legislature. Nonetheless,we believe that these cases do offer guidance in resolvingour inquiry.

In determining whether one political subdivision has acquired jurisdictionover disputed territoryto the exclusion of another, the courts require some officia:. act takenpursuant to lawwhich 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.

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Town of Ascarate. supra (sane). See also School Board of the City of Marshallv. State,supsa (inftiationof annexationproceedingsby city coxaaission);

Beyer V. Temple=, 212 S.W.2d 134 (Tex. 1948) (first reading of annexationordinanjce in accordancewith city charter);s of ArlingtonV. 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,hV. State ex rel. Ridglea Village, 186 S.W.2d 323 (Tex.Civ.App. --FortWorth 1945,writ ref'dw.o.m.) (city council's adoption of resolttionpursuant 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.WilkinsonV. 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 receivedvalid 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. 3eeWaterCode 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:.tory would 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 annexationwere filed with the competing district. For the purposes of this opinion, an order b:rthe temporaryboard of directors calling the confirmation election would constitute the conxaencement of legal proceedingssufficientto ccnfer jurisdictionover the disputed areas. SeeActs 1985, 69th Leg., ch. 780, 02B. at 5616-5617; Water Code -4.026-54.029 (relating MI confirmation election); Election Code $3.004(b) (requiringthe governingbody 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 Authorityhas properly acquired jurisdictionover the territory described in the petitions for annexation and has lawfully annexed such territory,the legal ef'fect of this actionwould, in our opinion, be to detach the territory :Eromthe 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 SchoolDistrict, 34 S.W.2d 857 (Tex. Comm'n App. 1931, judgmt adopted); San Diego Independent SchoolDistrictV. Central EducationAgency,w.

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Territory situatklwithin theproposedboundaries of a newly designatedwater districtmay be annexed prior to the designateddistrict'scalling of a confirmation election by another water district which has acquired jurisdktion over the territory.

JIM MATTOX Attorney General of Texas

JACK EIGRTOWER FirstAssistantAttorney Genwal

MARY KELLER ExecutiveAssistantAttorney General

RICK GILPIN Chairman,Opinion Committee
Preparedby Rick Gilpin AssistantAttorney General

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