L . 

THE ATJY~RNEY GENERAL 

OP TEXAS 

WI&L WILSON 

AlTOHNEYGMNERAL 

AUSTIN m.Texan 

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 applicable to a petition filed with 

the Board of Water Engineers 

seeking additional powers pursuant 

to Art. 7880-3a, include the requirement of Art. 7880-12, that the petition 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 Control and Improvement District No. 6, created by order of the Dallas Commissioners’ Court on July 23, 

1951, has recently been filed with this Board seeking 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 petition for the organization of a water control and improvement 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 petition or certified copy thereof has been filed in 

his office in accordance with Article 7880-12. The 

Board has instructed petitioners to file the petition 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 affirmative, 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 organization 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 organization 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 jurisdiction 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 abovelisted 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, 

with the appropriate county clerk. 

such a petition should also be filed 

The answer to your first question is that a petition (or a 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; but by virtue 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 accompanied 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 

APPROVED: 

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 responsibility 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 provided for the recording of petitions for the organization of water control and improvement districts. 

OPINION COMMITTEE 

Geo. P. Blackburn, Chairman 

B. H. Timmins, Jr. 

C. Dean Davis 

William E. Allen 

Jay D. Howell 

Yours very truly, 

WILL WILSON 

Attorney General of Texas 

. 

By:& & %giid 

James D. McKeithan 

Assistant Attorney General 

REVIEWED FOR THE ATTORNEY GENERAL 

By: W. V. Geppert