Attorney General Opinion JM-0896

May 5, 1988 Honorable Ashley Smith Opinion No. JM-896 Chairman Government Organization Re: Whether the city of Committee Denison may withdraw from Texas House of Representatives the Greater Texoma Utility P. 0. BOX 2910 Authority (RQ-1224) Austin, Texas 78769 Dear Representative Smith: You ask three questions concerning the withdrawal of a city from a special district: 1. May the city of Denison withdraw from the Greater Texoma Utility Authority? 2. If so, what procedure is required for the city of Denison to accomplish withdrawal? 3. If withdrawal is not available to the city of Denison, does the unavailability affect the constitutionality of the authority as created? We understand you to ask whether the city, by virtue of its status as a municipal corporation, has the power to withdraw from the authority. We conclude that it does not and that this fact does not render unconstitutional the existence of the authority or the act creating it. The Greater Texoma Utility Authority was authorized by the legislature in 1979 under the name "Greater Texoma Municipal Utility District." Acts 1979, 66th Leg., ch. 97, at 177. It was renamed in 1983. Acts 1983, 68th Leg., ch. 398, at 2160. The authority is a conservation and reclamation district created pursuant to article XVI, section 59, of the Texas Constitution. Districts created pursuant to this provision are declared to be governmental agencies and bodies politic and corporate with such powers of government and Honorable Ashley Smith - Page 2 (JR-896) with the authority to exercise such rights, privileges and functions concerning the subject matter of this amendment as may be conferred by law. Tex. Const. art. XVI, 559(b). A conservation and reclamation district created by special act of the legislature pursuant to this provision is a distinct corporate and political entity, separate from other such entities with which it may share territory. see Citv of Pellv v. Harris Countv Water Control and Imwrovement District No. 7, 198 S.W.2d 450 (Tex. 1946); Harris County Flood Control District v. Mann, 140 S.W.Zd 1098 (Tex. 1940). It stands upon the same footing as counties and other political subdivisions and exercises the state's and its own police power in performing its governmental functions. Banker v. Jefferson Countv Water Control and Imnrovement District No. 1, 277 S.W.2d 130 (Tex. Civ. App. - Beaumont 1955, writ ref'd n.r.e.). As a creature of the state, a city cannot usurp nowers otherwise conferred upon the legislature. Citv of jefferson v. Railroad Commission, 455 S.W.2d 906 (Tex. Civ. App. - Austin 1970, writ ref'd n.r.e.). In State ex rel. Pan American Production Co. v. Texas Citv, 303 S.W.Zd 780, 782-783 (Tex. 1957), dism'd, 355 U.S. 603 (1958), the Supreme Court noted that the territorial composition of municipal corporations is essentially a political question to be determined by the leg~islature, quoting Norris v. Citv of Waco, 57 Tex. 635 (Tex. 1882). This rule is especially relevant to the territorial composition of political subdivisions such as conservation and reclama- tion districts. See Tex. Const. art. XVI, 959(b). To that end, the legislature provided for the initial composition of the authority and for the annexation of additional territory. Acts 1979, 66th Leg., ch. 97, !jZ(a) and (b) at 177. The legislature has also prescribed procedures for the exclusion of land or other property from the authority. Id. 54(a), at 180. Those procedures, where applicable, are contained in sections 54.701 through 54.710 of the Water Code and grant the board of directors of the authority the power to exclude land from its boundaries. There is no provision authorizing a city to unilaterally withdraw from the district, and we have been directed to no statute authorizing the same. Comware V.T.C.S. art. 2351a-6, §14b (authorizing governing bodies of certain cities to exclude the cities from rural fire prevention districts with no bonded indebtedness if the cities agree to provide fire protection services to the p. 4410 Honorable Ashley Smith - Page 3 UM-896) excluded areas); Attorney General Opinion Nos. JM-605, JM-453 (1986). Accordingly, your first question is answered in the negative. We need not answer your second question, since it is predicated on an affirmative answer to your first question. Regarding your third question, we note that the courts have consistently held that municipalities claim protection under may not the federal constitution from the P r state. In Hunter v. Citv of Pittsburah, 207 U.S. 161, 178-179 (1907), the Supreme Court declared: Municipal corporations are political subdivisions of the State, created as convenient agencies for exercising such of the governmental powers of the State as may be intrusted to them. . . . The State, therefore, at its pleasure may . . . expand or contract the territorial area, unite the whole or a part of it with another munici- pality, repeal the charter and destroy the corporation. . . . In all these respects the state is supreme, and its legislative body, conforming its action to the state Constitution, may do unrestrained by any provEion it will, of the Constitution of the United States. . . . The power is in the State, and those who legislate for the State are alone responsible for any unjust or oppressive exercise of it. See also Williams v. Baltimore, 289 U.S. 36 (1933); Trenton v. New Jersev, 262 U.S. 182 (1923): Newark v. New Jersev, 262 U.S. 192 (1923). Texas courts have held that municipalities have no inherent right of local self-government that is beyond the control of the state. State ex rel . Burnet Countv Burnet Countv Hoswital Authoritv 495 S.W.2d (Tex. Civ. App. - Austin 1973, wri; ref'd 300, 3;, n.r.e.). As to cities exercising powers pursuant to article XI, section 5, of the Texas Constitution (the home rule amendment), we note that such powers are limited by their the constitution or general laws. charters or by Lower Colorado River Authoritv v. Citv of San Marcos, 523 S.W.2d 641 (Tex. 1975). As we have already noted, article XVI, section 59, of the constitution authorizes the legislature to pass laws creating and implementing conservation and p. 4411 Honorable Ashley Smith - Page 4 (JM-896) , reclamation districts. The legislature has prescribed the methods whereby land may be excluded from the Greater Texoma Utility Authority. Acts 1979, 66th Leg., ch. 97, 54(a), at 180. Consequently, we cannot failure to provide say that the withdraw from the cities the power to unilaterally authority renders unconstitutional its creation and continued operation. SUMMARY The city of Denison, Texas, may not unilaterally withdraw from the Greater Texoma Utility Authority. The failure of the legislature to provide for such withdrawal does not render unconstitutional the creation or continued operation of the authority. 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 RICK GILPIN Chairman, Opinion Committee Prepared by Steve Aragon Assistant Attorney General p. 4412