Attorney General Opinion JM-0544

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 4309 N. Tenth, Suite S 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 legis- lature 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 confirma- tion 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) ("designa- tion" 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 con- firmation 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