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 

4824 Alberta Ave., Suite 154 

El Paso, TX. 799052793 

91515333484 

leq! Texas, Suite 700 

ston, TX. 77002.3111 

i W223-5888 

SO5 Broadway, Suite 312 

Lubbock, TX. 79401-3479 

8061747-5238 

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McAllen, TX. 7550%1685 

5121882.4547 

200 Main Plaza, Suite 400 

San Antonio, TX. 78205.2797 

51212254191 

An Equal Opportunity/ 

Affirmative Action Employer 

The Attorney General of Texas 

S~q,tmber 15, 1986 

Honorable Danny Anct,ondo 

El Paso County Attorney 

Room 201, City-County Bldg. 

El Paso, Texas 79SOl 

Opinion No. m-544 

Re: Whether a political subdivision 

may annex territory which 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 thaa authority is created, a confirmation 

election must be called and held within the 

boundaries of the proposed authority in accordance 

with Sect:Lons 54.026 through 54.029, Water Code. 

Creation of the authority must be approved by a 

majority of the qualified voters of the proposed 

authority voting at the election. 

- Id. 52B at 5616-5617. 

The El Paso County Water Authority , also a water conservation and 

reclamation district, was established pursuant to article XVI, 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:!nd Leg., 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 received petitions submitted by 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 

following question: 

p. 2505 
Honorable Danny Anchondo - Eage 2 (JM-544) 

I 

? 

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 

legislative enactment of the new district? 

Assuming that the annexing apolitical subdivision has properly acquired 

jurisdiction over the dispumd territory prior 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 territory of the pmposed district. An explanation follows. 

Water districts are pol.itical subdivisions of the state and stand 

on the same footing as counties. See Tex. Const. art. XVI, 159(b); 

Sears V. Colorado River Municipal Water 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 annexation bv 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 two municipal corporations 

cannot exercise the same nen,eral eovernmental authority over the same 

area. See City of NassauizT V. City of Webster, 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 

General Opinion~JM-400 (198j;j. 

In resolving disputes between municipal corporations which assert 

jurisdiction over the same territory, the courts have adopted a rule 

of priority. Between two political subdivisions of concurrent or 

coordinate authority, the courts adhere to the following rule: 

The municipal aut~xlrity, be it one having a legal 

existence or 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~~diction by a similar municipal 

organization. [C::tations omitted]. 

p. 2506 
Honorable Danny Anchondo - Iage 3 (JM-544) 

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 legal proceedings sufficient to grant 

one entity jurisdiction omx a given area to the exclusion of the 

other. It would be helpful tto begin by discussing some matters which 

do not determine the questim of jurisdiction. 

For instance, it is clear that the legislature's designation 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 the voters' 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 

Opinion Nos. NW-380 (1981)7%7-1 (1957). 

In addition, the court:3 hold that a political subdivision has 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 

Independent School District V. Central Education Agency, 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 

legislature may provide methods whereby such boundaries are reduced, 

provided the reduction in territory does not prevent the political 

subdivision from meeting itf, lawful indebtedness. Id. - 

The legislature has provided such methods in this instance. The 

boundaries of the El Paso County Lower Valley Water District Authority 

are subject to the creation of two municipal utility districts also 

authorized by the Sixty-ninth Legislature. See Acts 1985, 69th Leg., 

chs. 683, 684, at 5121, 5132 (authorizing Homestead Municipal Utility 

Districts Nos. 1 and 2). If' either of the municipal utility districts 

is approved at a confirmation election, the territory of the approved 

district is to be excluded from the boundaries of the El Paso County 

Lower Valley Water District Authority. Acts 1985, 69th Leg., 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:ion of the water district, and where the 

latter district was no more t:han a bare legal entity, having exercised 

none of its authorized powers. Lower Nueces River Water Supply 

District V. 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 confer upon the proposed district exclusive jurisdiction over 

p. 2507 
Honorable Danny Anchondo - I'age 4 (JM-544) 

the disputed territory. Cf. Jackson V. Texas Water 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 courts hold that tne submission of a petition for annexation 

which is regular on its face is sufficient to invoke the jurisdiction 

of the political subdiviriion to determine whether the petition 

satisfies statutory requi1:ements. School Board of the City of 

Marshall v. State, 343 S.W.2d 247 (Tex. 19 61). 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, 375 U.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 PiGlo 1947, 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 election on the question #of incorporation, a city was not deprived 

of the authority to annex t:he territory described in the petition. 

State ex rel. Wilkinson V. 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) (petition for in#corporation was offered to county judge's 

assistant for acceptance, but was mistakenly rejected by assistant; 

court held that this was s;ufficient to 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 

initiated by petition, but by an act of legislature. Nonetheless, we 

believe that these cases do offer guidance in resolving our inquiry. 

In determining whether one political subdivision has acquired 

jurisdiction over disputed territory to the exclusion of another, the 

courts require some officia:. act taken pursuant to law which 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'zorporation followed 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. 

p. 2508 
Honorable Danny Anchondo - P%Se 5 (JM-544) 

Town of Ascarate. supra (sane). See also School Board of the City of 

Marshall v. State, supsa (inftiation of annexation proceedings by city 

coxaaission); Beyer V. Temple=, 212 S.W.2d 134 (Tex. 1948) (first 

reading of annexation ordinanjce in accordance with city charter); s 

of Arlington V. 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,h V. State ex rel. Ridglea Village, 186 

S.W.2d 323 (Tex. Civ. App. - -Fort Worth 1945, writ ref'd w.o.m.) (city 

council's adoption of resolttion pursuant 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. Wilkinson V. 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 received valid 

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. 3ee WaterCode 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 

annexation were filed with the competing district. For the purposes 

of this opinion, an order b:r the temporary board of directors calling 

the confirmation election would constitute the conxaencement of legal 

proceedings sufficient to ccnfer jurisdiction over the disputed areas. 

See Acts 1985, 69th Leg., ch. 780, 02B. at 5616-5617; Water Code 

-4.026-54.029 (relating MI confirmation election); Election Code 

$3.004(b) (requiring the governing body 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 Authority has properly acquired jurisdiction over the territory 

described in the petitions for annexation and has lawfully annexed 

such territory, the legal ef'fect of this action would, in our opinion, 

be to detach the territory :Erom the 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 School District, 34 S.W.2d 

857 (Tex. Comm'n App. 1931, judgmt adopted); San Diego Independent 

School District V. Central Education Agency, w. 

p. 2509 
, 

Honorable Danny Anchondo - Pz~ge 6 ~(JM-544) 

Territory situatkl within the proposed boundaries 

of a newly designated water district may be annexed 

prior to the designated district's calling of a confirmation election by another water district which 

has acquired jurisdktion over the territory. 

JIM MATTOX 

Attorney General of Texas 

JACK EIGRTOWER 

First Assistant Attorney Genwal 

MARY KELLER 

Executive Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Rick Gilpin 

Assistant Attorney General 

-, 

p. 2510