THE ~TORNEY GENERAL 

OF TEXAS 

Honorable Rick Hamby 

District Attorney 

Howard County Courthouse 

Big Spring, Texas 79720 

Honorable Mark Edwards 

Reagan County Attorney 

P. 0. Box 924 

Big Lake, Texas 76932 

Opinion No. JR-1221 

Re: Division of taxing authority over certain severed 

mineral interests between two 

contiguous underground water 

conservation districts 

(RQ-1927), (RQ-1983) 

Dear Mr. Hamby and Mr. Edwards: 

This opinion responds to the issues you each raise 

under section 14 of Senate 

the legislature in 1989. 

Bill 1634, which was enacted by 

Acts 1989, 71st Leg., ch. 653, at 

- 2153-55. Senate Bill 1634 created the Santa Rita Underground Water Conservation District [hereinafter the Santa 

Rita district] in Reagan County, Texas. Section 14 of the 

bill excludes certain lands from the Santa Rita district. 

Your requests focus on the ad valorem taxation of the 

severed mineral interests in the excluded lands that were 

annexed into the Glasscock County Underground Water 

Conservation 

district].1 

District [hereinafter the Glasscock County 

We understand that some of the Reagan County landowners 

whose lands have been annexed into the Glasscock County 

district did not own all of the mineral rights in the 

annexed lands. You each ask whether the Santa Rita district 

or the Glasscock County district is authorized to tax the 

severed mineral interests since those interests were not 

1. In 1981 the legislature created the Glasscock 

County district and provided that its boundaries were 

identical to those of Glasscock County. Acts 1981, 67th 

Leg., ch. 489, 55 l-2, at 2104. Glasscock County is located 

immediately north of Reagan County. 
Honorable Rick Hamby - Page 2 (JM-1221) 

Honorable Mark Edwards 

owned by the persons who 

tion.2 

filed the petitions for annexaSection 14(a) exempts from the district "any lands 

. . . annexed into" the Glasscock County district under 

section 51.714 of the Water Code prior to June 14, 1989, the 

effective date of the act. Section 51.714 permits an "owner 

of land" to file with the Glasscock County district 'Ia 

petition requesting that'the land described by metes 

bounds in the petition be included in the district.1' 

and 

Section 14(b), which establishes another means of 

eluding lands from the Santa Rita district, provides in 

that: 

(1) Within one calendar year from the 

effective date of this Act, the owner of land 

who owns land with[in] a delineated critical 

area3 pursuant to Section 52.053, Water Code, 

and whose lands are within the district may 

file with the board a netition recuestins 

that the owner's land be- excluded from the 

district. The petition must describe the 

land by legal description or by metes and 

bounds or by lot and block number if there is 

a recorded plat of the area to be excluded 

from the district. This petition must be 

signed and notarized by the owner of the 

land. 

(2) The board shall accept the petition 

immediately and shall grant exclusion of the 

land described in the petition, the only 

requirement for review by the board being 

that of conformity to Subdivision (1) of this 

subsection. (Emphasis added.) 

2. We have received correspondence indicating that 

the Santa Rita district asserts no right to tax mineral 

interests owned by the surface owners whose petitions for 

annexation were granted. 

expart 

3. A lBcritical arean is an area designated and delineated by the Texas Water Commission as an area experiencing 

or expected to experience critical groundwater problems. 

Water Code 5 52.001(14). 

P. 6464 
Honorable Rick Hamby - Page 3 (JM-1221) 

Honorable Mark Edwards 

Except for lands that have been excluded under either 

section 14(a) or (b), the Santa Rita district includes all 

territory located within Reagan County. Acts 1989, 71st 

Leg., ch. 653, 5 3, at 2153. 

We have received correspondence indicating that some 

Reagan County landowners timely filed petitions for annexation under section 51.714 of the Water Code with the 

Glasscock County district and that those petitions were 

granted prior to June 14, 1989. The sample petitions for 

annexation that we have received refer to section 51.714 and 

request the annexation of "the land described by metes and 

bounds" in the exhibits attached to the petitions. The 

metes and bounds descriptions neither expressly include nor 

exclude minerals in or under the described land. We 

understand that the sample petitions are typical of the 

petitions filed under section 14(a). 

,- 

We are also advised that some Reagan County landowners 

timely filed petitions under section 14(b) to exclude their 

lands from the Santa Rita district. We understand that 

nearly all of the landowners who filed section 14(b) 

tions for exclusion with the Santa Rita district have 

petialso 

filed petitions with the Glasscock County district for 

annexation of the excluded lands. 

The samples that we have received of annexation petitions filed by landowners whose lands were excluded pursuant 

to section 14(b) refer to section 52.521 of the Water Code, 

which authorizes the owner of land contiguous to an underground water district to file a petition for annexation.4 

4. Section 52.521, along with the rest of subchapter K 

of chapter 52, was added to the Water Code by Senate Bill 

1212 and took effect September 1, 1989. Acts 1989, 71st 

Leg., ch. 936, 5 14 at 3998, § 21, at 4001. Subchapter K 

provides for the annexation of territory to and consolidation of districts. u. 5 14, at 3998-4000. Subchapter K is 

applicable to underground water conservation districts 

created by special law. Water Code 5 52.005 (subchapters D, 

J, and K applicable to special law districts). Prior to the 

passage of Senate Bill 1212, some underground water conservation districts relied on the annexation provisions of 

chapter 51 of the Water Code, which covers water control 

and improvement districts. Section 51.714 is one of those 

(Footnote Continued) 

D. 6465 
Honorable Rick Hamby - Page 4 (JM-1221) 

Honorable Mark Edwards 

The sample petitions 

metes and bounds and 

describe the land to be annexed by 

neither expressly include nor exclude 

minerals in or under the described land. We understand that 

these samples are representative of the annexation petitions 

filed with the Glasscock County district by owners of lands 

excluded from the 

14(b).5 

Santa Rita district pursuant to section 

On April 26, 1989, the Senate Committee on Natural 

Resources conducted a public hearing during which it 

received testimony on Senate Bill 1634. 

briefly in favor of the 

Two witnesses spoke 

committee substitute for the bill. 

No one spoke against the bill. Senator Bill Sims, the 

bill's sponsor, spoke first on behalf of the committee 

substitute. His speech focused on section 14, which first 

appeared in the committee substitute adopted by the Natural 

Resources committee.6 He referred to section 14 as the 

agreement negotiated between the two districts that would 

allow members of the farming community to annex into the 

Glasscock County district. He stated that the arrangement 

in section 14 had been worked out since some of the farming 

community felt they could work better with the Glasscock 

County district and that the Reagan County district 

that would work well for both sides. 

thought 

Senator Sims made no 

reference to the owners of the severed mineral interests. 

(Footnote Continued) 

provisions. See. e.a., Acts 1981, 67th Leg., ch. 489, 5 4, 

at 2104 (Glasscock County district may exercise powers 

permitted by chapter 51). 

5. We assume for purposes of this opinion that before 

approval of any annexation petition all applicable requirements were satisfied. See. e.s., Water Code 55 51.716, 

52.523. 

6. Sections 14(a) and 14(b) 

Committee on Natural Resources 

as added by the Senate 

are almost identical to the 

sections as enacted. On May 10, 1989, the House Committee 

on Natural Resources reported a substitute for Senate Bill 

1634 that modified section 14(b) to permit only owners of 

land within delineated critical areas to file petitions for 

exclusion. The Senate version of section 14(b) would have 

allowed any owner of land within the Santa Rita district to 

file a petition for exclusion. 
Honorable Rick Hamby - Page 5 (JM-1221) 

Honorable Mark Edwards 

The next witness at the Senate hearing also did not 

mention the owners of the severed mineral interests, and 

only stated that section 14 was a closely negotiated 

arrangement that was satisfactory to the representatives of 

both districts. Public Hearino on S.B. 1634 Before Senate 

Comm. on Natural Resources, (April 26, 1989) (testimony of 

Tom Massey). The focus in the House was also on the 

settlement reached between the districts. Representative 

Robert June11 referred to the division of the county between 

the northern farming and the southern ranching communities 

and stated that the controversy about the northern part of 

the county had been settled by the parties. Public Hearinq 

on C.S.S.B. 1634 Before House Comm. on Natural Resources, 

WY 10, 1989)(testimony of Rep. Robert A. Junell). 

We are unaware of any constitutional provision restricting the legislature's choice of boundaries for conservation 

districts or properties to include within such districts. 

&q Harris Count v Drainase Dist. No. 12 v. Houston, 35 

S.W.Zd 118 (Tex. 1931); 36 D. Brooks, Countv and S n ecial 

District Law § 46.4, at 544-45: 5 46.6, at 548-49 (Texas 

Practice 1989) (district boundaries may overlap or coincide 

with other governmental districts): Attorney General Opinion 

/h JM-827 (1987) (holding valid a water district created 

primarily to encompass a hazardous waste facility).7 Nor 

has any brief submitted in conjunction with your requests 

referred us to such a prohibition. 

We note that section 14(a) references section 51.714 

rather than section 51.718 of the Water Code. In contrast 

to section 51.714, which permits a single landowner to 

petition for annexation, section 51.718 authorizes two or 

more landowners of a defined area of territory to petition 

for annexation. A section 51.718 petition must be signed 

either by a majority of the landowners in the territory or 

by 50 landowners if the territory contains more than 50 

7. Although the legislature possesses broad authority 

to select the boundaries of and the properties to be included within water districts, the legislature has delegated 

to the Texas Water Commission only circumscribed powers over 

district creation. See Attorney General Opinion JM-1115 

(1989) (while commission not authorized to create district 

excluding part of the mineral interests, district board 

could grant petition excluding such interests after district 

creation). 

p. 6467 
Honorable Rick Hamby - Page 6 (JM-1221) 

Honorable Mark Edwards 

landowners. Annexation of property within the territory 

becomes final upon approval of a majority of the voters in 

the territory to be annexed as well as in the annexing 

district. Given the liability for district indebtedness and 

taxes imposed on annexed territory, we believe that the 

legislature would have referenced section 51.718 in section 

14(a) if it had intended for property other than that of the 

petitioning landowner to be annexed into the Glasscock 

County district.8 

We are unaware of any case construing either section 

51.714 or 51.718 or their predecessors, articles 7880-75 and 

7880-75b, V.T.C.S. See Acts 1925, 39th Leg., ch. 25, § 75, 

and 5 75b, as added by Acts 1929, 41st Leg., 1st C.S., ch. 

82, 5 2. We think, however, that the courts would hold that 

both the owners of the surface estates and the owners of the 

severed mineral estates are separate landowners for purposes 

of section 51.714 and 51.718. See Citv of Cornus Christi v. 

Cartwrioht, 288 S.W.2d 836 (Tex. Civ. App. - San Antonio 

1956, writ ref'd) (holding owners of severed mineral estates 

and owners of surface estates were landowners for district 

creation purposes and had to be considered in determining 

the sufficiency of a petition filed under article 7880-10 

[now section 51.013 of the Water Code]): see also Nueces 

Countv Water Control & Imnrovement Dist. No. 4 v. Wilson, 

304 S.W.2d 281 (Tex. Civ. App. - El Paso 1957, writ ref'd 

n.r.e) (court has jurisdiction to review denial by water 

district board of separate petitions filed under article 

7880-76 [now section 51.692 of the Water Code] by owners of 

surface estates and oil and gas leases to exclude their 

interests in lands from the district). 

Thus, we think the courts would construe section 51.714 

to permit the annexation of lands only owned by the landowner filing the petition for annexation.9 To the extent 

8. Sections 52.521 and 52.525 are analogous to sections 51.714 and 51.718. Section 52.521, as mentioned 

earlier in the text, authorizes a landowner to file a 

petition requesting that "the owner's land be included 

within" an underground water district. Section 52.525, in 

contrast, permits two or more landowners to petition to 

include a defined area of territory. 

9. If a petition is filed pursuant to section 51.714 

(Footnote Continued) 

p. 6468 
Honorable Rick Hamby - Page 7 (JM-1221) 

Honorable Mark Edwards 

the Glasscock County district has annexed prior to June 14, 

1989, the lands owned by a landowner who filed an annexation 

petition under section 51.714 in accordance with section 

14 (a), those lands will be taxable by the Glasscock County 

district. The Santa Rita district and not the Glasscock 

County district may tax the severed mineral interests in 

those lands unless the owners of those severed interests 

have filed a section 51.714 petition that was approved in 

accordance with section 14(a).10 

Section 14(b) reinforces our conclusion with regard to 

section 14(a) and its reference to section 51.714. Subdivision (1) of section 14(b) provides that "the owner of 

land" may file 'Ia petition requesting that the owner's land 

be excluded" and that the petition "must be signed by and 

(Footnote Continued) 

the district is permitted but not obligated to add the 

petitioner's lands. Water Code 5 51.716. The district may 

r therefore refuse to add a severed mineral estate if the 

owner of the estate files a petition for annexation under 

section 51.714. See also Water Code 5 52.523(a) (board has 

discretion to grant or deny section 52.521 petitions filed 

by single landowners). Since chapter 52, which governs 

underground water districts, does not apply to oil and gas 

wells permitted by the Texas Railroad Commission, some 

districts may choose to deny such a petition. Water Code 

5 52.170(e) (nothing in chapter applies to wells permitted 

by commission). 

10. Article 8, section 11, of the Texas Constitution 

provides that all property shall be taxed in the county 

where situated. Texas courts have construed this 

in light of 

provision 

the common law to mean that governmental 

entities may tax only property within their jurisdiction. 

See. e.c., Great Southern Life Ins. Co. v. Austin, 243 S.W. 

778, 780 (Tex. 1922). Since we determine that the severed 

mineral interests in issue have not been excluded from the 

Santa Rita district by the action of the surface owners, 

Santa Rita possesses the requisite jurisdiction to tax 

those severed interests. See also Tax Code 55 21.01, 25.04 

(separate estates or interests in lands are listed separately by name of the owners and taxable if located in the 

district on January 1 of the tax year). 

p. 6469 
Honorable Rick Hamby - Page 8 (JM-1221) 

Honorable Mark Edwards 

notarized by the owner of the land."11 By using language 

referring only to the owner of the land and the owner's 

land, the legislature has indicated its intent to authorize 

certain landowners to petition for exclusion of only '~their 

property from the Santa Rita district. If the legislature 

had intended the exclusion of all property rights in the 

excluded lands, including those not held by the petitioning 

owners, such as the severed mineral interests, we believe 

the legislature would have so indicated by referring to 

landowners and their territory as in sections 51.718 and 

52.523 of the Water Code. 

In summary, the Santa Rita district and not the Glasscock County district may tax the severed mineral interests 

in the Reagan County lands that have been annexed into the 

Glasscock County district upon approval of the annexation 

petitions filed by the surface owners of those lands. 

Nevertheless, the Glasscock County district and not the 

Santa Rita district may tax a severed mineral interest if 

the owner of the severed interest has filed either a section 

51.714 petition that was approved in accordance with section 

14(a) or an appropriate annexation petition that was 

approved subsequent to the grant of the owner's petition 

excluding the interest from the Santa Rita district pursuant 

to section 14(b). 

11. Although the term l'land'V or "lands" as used by the 

Texas courts generally refers to all interests or estates in 

land including those held by the owners of oil and gas 

leases and other mineral estates, the context in which the 

term is used may determine whether the term is used broadly 

to refer to all rights in the land or narrowly to refer 

to only certain rights such as surface rights. See. e.q 

Avervt v. Grande. Inc., 717 S.W.2d 891, 893-4 (Tex. 1986;; 

Holloway's Unknown Heirs v. Whatlev, 131 S.W.2d 89, 91-2 

(Tex. 1939). Our review of the legislative history and 

language of section 14 shows that the legislature intended 

to accomodate the interests of the farming community in 

northern Reagan County and accomplished this by authorizing 

any landowner holding any estate or interest in lands to act 

on his own to have his lands annexed into the Glasscock 

County district. 

p. 6470 
Honorable Rick Hamby - Page 9 (JM-1221) 

Honorable Mark Edwards 

SUMMARY 

The Santa Rita Underground Water District 

and not the Glasscock County Underground 

Water District may tax the severed mineral 

interests in Reagan County lands that have 

been annexed into the Glasscock County 

district upon approval of annexation petitions filed by the owners of the surface 

estates in those lands. 

Very truly yo J-k . 

-~ 

JIM MATTOX 

Attorney General of Texas 

MARY KELLER 

First Assistant Attorney General 

LOU MCCREARY 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAKLEY 

Special Assistant Attorney General 

RENEA HICKS 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Celeste Baker 

Assistant Attorney General 

P. 6471