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### THE **ATJY~RNEY** GENERAL OP TEXAS

WI&L WILSON AlTOHNEYGMNERAL AUSTIN m.Texan September 15, 1959

Honorable Durwood Manford, Chairman Board ofWater Engineers P. 0. Box 2311 Capitol Station Austin, Texas Opinion No. WW-703
Re: Does Article 7880-21, as applicable toa petition filed with the Board ofWater Engineers seeking additional powers pursuant to Art. 7880-3a, include the requirement ofArt. 7880-12, that the petition or certified copy thereof be filed with the County Clerk ofeach affected County.
Dear Mr. Manford:

In your letter you state the following facts:

“A petition duly signed bymore than fifty tax-paying holders oftitle to lands in Dallas County Water Control and Improvement District No. 6, created by order ofthe Dallas Commissioners’ **Court** on July 23, 

### 1951, has recently been filed with this Board seeking additional powers for disposal ofwaste and providing facilities and service under the provisions

‘ofArticle 7880-3a, V.A.C.S.

.. . .

“Article 7880-12 provides for the filing ofthe petition for the organization ofawater control and improvement district with the County Clerk ofeach affected county and states that the petition shall be recorded in abook kept for that purpose in the office ofthe County Clerk. Rule 630.2(b), Rules, Regulations and Modes ofProcedure oftheBoard ofWater 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 tofile 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 ofWater Engineers seeking additional powers pursuant toArticle 7880-3a, include the requirement ofArticle 7880-12, that the petition or certified copy thereof be filed with the County Clerk ofeach affected county.

“2. If question NO. 1is 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 apetition for the organization of awater control and improvement district (hereinafter abbreviated as W. C. I. D. ) shall be filed in the office ofthe county clerk of each county in whichthe district is situated and shall be recorded in a book kept for that purpose in the office ofthe county clerk,

Article 7880-21, V. C. S., provides that the Board ofWater Engineers shall have exclusive jurisdiction to hear petitions for the organization ofaW. 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 aprescribed manner and hear the petition in the manner provided bylaw. The “filing of such petition” which invokes thejurisdiction ofthe Board is the filing ofthe petition with the Board and not the filing with the county clerk. Lovett v.‘Cronin, 245 S.W. 2dHonorable Durwood Manford, Chairman, page 3 (Ww-703)

519 (Civ. App. 1951). A failure to file the petition with the county clerk before ahearing on the petition bythe Board, when the Board gave proper notice as required byArticle 7880-21, was held to be “only an irregularity which did not make the creation ofthe district void.” Lovett v. Cronin, supra at 522. Presumably to avoid this situation in the future, the Board included in its rules ofprocedure in 1955 the requirement that apetition for the creation ofaW. C. I. D. be accompanied by “a certificate from the County Clerk ofeach affected county that the petition or acertified copy thereof has been filed in his office, in accordance with Article 7880-12.” Rule 630.2(b) (S), Rules, Regulations and Modes ofProcedure, Board of Water Engineers, 1955Revision.

Inmost situations, when the lands to be included in adistrict lie wholly within one county, as in the case ofDallas County W. C. I. D. No. 6, “the formation thereof shall be considered and ordered by the county commissioners’ court”, thejurisdiction ofthe Board ofWater 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. 6was originally created by order ofthe Dallas County Commissioners’ **Court.** However, under the provisions ofArticle 7880-3a, exclusive jurisdiction is vested in the Board ofWater Engineers tohear and determine petitions for the creation of aW. C. I. D. embracing any ofthe 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 ofall domestic, industrial, or communal wastes, whether offluids, solids, or composites, and to gather, conduct, divert, and control local storm **waters, or**  other local harmful excesses ofwater.
.. .‘I Article 7880-3a’

. The Board has exclusive jurisdiction tohear and determine

1. An amendment in 1941adding to this list the power to operate fire engines and fire-fighting equipment was declared unconstitutional, not, however, affecting the val idity ofthe remainder ofthe statute. Harris County W. C. I. P. v. Albright. 153Tex. 94, 263 S. W. 2d (1954); Deason v. Orange County W. C. I. D. No. 1,151Tex. 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, 153Tex. 94, 263 S. W. 2d 944 (1954); Lovett v. Cronin, supra.

Thus even though Dallas County W. C. I. D. No. 6was created in 1951bya County Commissioners ’Court, it was necessary to file a petition with the Board ofWater Engineers in order to apply for the abovelisted powers. In hearing petitions for the creation ofa W. C. I. D. having the powers listed in Article 7880-3a. the Board ofWater Engineers must “hear and determine the same under the applicable provisions of Section 5of Chapter 280, Acts ofthe Regular Session ofthe Forty-first Legislature /-Article 7880-21-j ” Article 7880-3a(6). Thus such apetition 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 apetition 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 ofits 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 bythe same procedures as are provided for in this Section.

.. ./-with certain provisions concerning elections> ” Article 7880-3a(7). Thu; such apetition for additional powers should also be heard and determined under the applicable provisions ofArticle 7880-21, and byvirtue ofthe statutes as interpreted in the Lovett case, w, with the appropriate county clerk. such apetition should also be filed

The answer to your first question is that apetition (or a certified copy thereof) filed with the Board ofWater 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 ofthe Board to hear and determine the petition is invoked bythe filing ofthe petition with the Board and does not depend on its filing with the county clerk; but byvirtue ofthe 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 apetition 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 ofpetitions for the organization ofW. C. I. D.s.

SUMMARY

APPROVED: A petition, or certified copy thereof, filed with the

Board ofWater Engineers seeking additional powers pursuant toArticle 7880-3a should also be filed with the county clerk of each county in which the district is situated. The jurisdiction ofthe 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 apetition or certified copy thereof when presented tohim in the proper form and accompanied by appropriate fees by virtue ofArticle 7880-12. Such petitions should be recorded bythe county clerk in the book provided for the recording ofpetitions for the organization ofwater 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 ofTexas .

By:& & %giid James D. McKeithan Assistant Attorney General

REVIEWED FOR THE ATTORNEY GENERAL By: W. V. Geppert