If my land was annexed into one Texas groundwater conservation district but later included in a new district the Legislature created, which district covers it?

TX AG Opinion GA-0792: Which water district covers land caught between an annexation and a new special-law district?

Plain-English summary

Senator Troy Fraser's predecessor asked about four tracts of land, each with the same tangled history. In each case, an existing groundwater conservation district had annexed a parcel in an adjacent county after a landowner petitioned for it. The Legislature then passed a special law creating a brand-new district in that adjacent county, with boundaries drawn to match the county line. Both districts could then point to the same parcel. The question was which district the tract actually belongs to.

The Attorney General answered that the special law creating the new district controls, so each disputed tract sits exclusively within the newly created county district, not the district that annexed it earlier. The reasoning starts from a rule a Texas appeals court stated: two governmental entities may not exist at the same time over the same territory for the same purpose. Because the annexing district and the new district are both ordinary groundwater conservation districts under Water Code chapter 36, they serve the same purpose, so the parcel cannot belong to both. Something has to give.

What gives is the earlier annexation. A political subdivision has no contractual right in its own boundaries, and the Legislature's power to set those boundaries (to shrink them as well as expand them) is plenary, limited only by the constitution. The opinion noted that the Legislature knows how to protect previously annexed land when it wants to, because in one 1989 act it expressly excluded land already annexed into a particular water district from a newly created one. When the Legislature does not carve out the annexed land, the special law creating the new district prevails over the prior general-law annexation. Water Code section 36.052(a) says the same thing directly: a special law governing a specific district prevails over chapter 36, including its annexation rules.

The Attorney General was careful to limit the answer. He resolved only the question of statutory construction, and stressed that he did not have enough facts to judge whether constitutional limits, such as impairment of contracts, might apply in any specific tract's situation. In another case the constitutional analysis could change the result.

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Water Code chapter 36, including section 36.052, may have been amended since 2010, and the boundaries or enabling acts of any specific district can change. Confirm the current statutes and the district's own special law before relying on anything below.

Who this opinion affected (as of 2010)

Landowners in the disputed tracts: The opinion told them that, for purposes of statutory construction, their land was within the specially created county district rather than the district that had annexed it, while leaving open that a constitutional argument could change the answer in a particular case.

Groundwater conservation districts: The opinion told annexing districts that a later special law creating a coterminous county district displaces a prior general-law annexation of land in that county, and told the newly created districts that they had the stronger claim.

The Legislature: The opinion reflected that its boundary-setting power is plenary and that, where it wants to preserve a prior annexation, it must say so expressly, as it did in the 1989 act excluding land already annexed into the Glasscock County district.

Common questions

My land was annexed years before the new district existed. Doesn't first in time win?
Not here. The opinion concluded the later special law creating the county district prevails over the earlier general-law annexation, because the Legislature's power over district boundaries is plenary and a special law prevails over chapter 36 under section 36.052(a).

Could the same parcel be in two water districts at once?
No. The opinion relied on the rule that two governmental entities may not exist over the same territory for the same purpose at the same time. Both districts being chapter 36 groundwater districts, the parcel can be in only one.

Is this answer final for my specific tract?
The opinion said no. It resolved only statutory construction and warned that constitutional considerations, such as impairment of contracts, could require a different result on particular facts.

Background and statutory framework

The opinion addressed four scenarios involving the Panhandle, Hemphill, Jeff Davis, Presidio, Middle Pecos, and Brewster groundwater districts, each created or governed by its own special law under article XVI, section 59 of the Texas Constitution. The annexing and the newly created districts all operate as groundwater conservation districts under Water Code chapter 36.

The controlling principles: a Texas court has held that two governmental entities may not exist at the same time over the same territory for the same purpose (Glasscock Underground Water Conservation Dist. v. Pruit, 915 S.W.2d 577, 584 (Tex. App.—El Paso 1996, no writ)). A political subdivision has no contractual right in its boundaries, and the Legislature has the same authority to decrease boundaries as to increase them (City of Deer Park v. State ex rel. Shell Oil Co., 275 S.W.2d 77, 82 (Tex. 1954)). Subject only to constitutional limitations, the Legislature's power to fix the boundaries of a political subdivision is plenary (Steinhagen v. Eastham, 233 S.W. 660, 663 (Tex. Civ. App.—Beaumont 1921), aff'd, 243 S.W. 457 (Tex. 1922)). The opinion observed that the Legislature has shown it can expressly exempt previously annexed land when creating a new district, citing a 1989 act that excluded land already annexed into the Glasscock County Underground Water District. Water Code section 36.052(a) provides that a special law governing a specific district prevails over chapter 36, including its annexation provisions (Tex. Water Code Ann. § 36.052(a) (Vernon 2008)). Applying these rules, the special law creating each new county district prevailed, placing each disputed tract exclusively within the new district for statutory-construction purposes, subject to possible constitutional considerations.

Citations

Statutes:

• Tex. Water Code Ann. § 36.052(a) (Vernon 2008)

Cases:

• Glasscock Underground Water Conservation Dist. v. Pruit, 915 S.W.2d 577 (Tex. App.—El Paso 1996, no writ)
• City of Deer Park v. State ex rel. Shell Oil Co., 275 S.W.2d 77 (Tex. 1954)
• Steinhagen v. Eastham, 233 S.W. 660 (Tex. Civ. App.—Beaumont 1921), aff'd, 243 S.W. 457 (Tex. 1922)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0792
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2010/ga0792.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

August 26, 2010

The Honorable Troy Fraser
Chair, Committee on Natural Resources
Texas State Senate
Post Office Box 12068
Austin, Texas 78711-2068

Opinion No. GA-0792

Re: Status of particular tracts of land annexed into one groundwater conservation district and subsequently included in special legislation creating a different district (RQ-0817-GA)

Dear Senator Fraser:

Your predecessor asked about the status of four tracts of land, each of which was annexed into a groundwater conservation district and subsequently included in a different district created by special legislation. In each case, an existing district, on petition of a landowner, annexed a parcel of land in an adjacent county. The Legislature subsequently established in each adjacent county a new district with boundaries coterminous with that of the adjacent county. We are asked about the present status of the parcels of land that were annexed by the original districts and later included in a newly-created groundwater conservation district. Because we do not have sufficient information to determine, in any particular case, whether facts exist that would implicate constitutional limitations, such as impairment of contracts, we will limit our answers to issues of statutory construction. With that caveat, we will address each of the four scenarios in turn. [Footnote 1: Request Letter (available at http://www.texasattorneygeneral.gov).]

I. The Panhandle and Hemphill Districts

In 1994, certain landowners petitioned the board of the Panhandle Groundwater Conservation District to annex a particular tract of land in Hemphill County, and the Panhandle District board granted the petition on August 3, 1994. In 1995, the Legislature by special law created the Hemphill County Underground Water Conservation District pursuant to article XVI, section 59 of the Texas Constitution. See Act of May 8, 1995, 74th Leg., R.S., ch. 157, 1995 Tex. Gen. Laws 1007, 1007-09. The boundaries of the district were declared to be "coextensive with the boundaries of Hemphill County." Id. § 3, at 1007. [Footnote 2: Brief from Monique Norman, Attorney at Law, on behalf of the Panhandle District at 1 (Oct. 5, 2009).]

The Hemphill District's enabling legislation granted to its board "all of the rights, powers, privileges, authority, functions, and duties provided by the general law of this state, including Chapters 50 and 52, Water Code, applicable to underground water conservation districts created under Section 59, Article XVI, Texas Constitution," excepting the power of eminent domain. See id. § 5. In 1995, however, the Legislature repealed chapter 52 of the Water Code, effective September 1, 1995. The same bill that repealed chapter 52 enacted chapter 36 of the Water Code, applicable to groundwater conservation districts. See Act of May 29, 1995, 74th Leg., R.S., ch. 933, §§ 2, 6, 1995 Tex. Gen. Laws 4673, 4679-4701. Thus, both the Panhandle and Hemphill Districts currently occupy the status of a "groundwater conservation district" under chapter 36.

A Texas court has held that "two governmental entities may not exist at the same time over the same territory for the same purpose." Glasscock Underground Water Conservation Dist. v. Pruit, 915 S.W.2d 577, 584 (Tex. App.—El Paso 1996, no writ) (emphasis added). Because both the Panhandle and Hemphill Districts are chapter 36 districts, they operate for the same purpose and thus the tract may not, under the language of Pruit, and in the absence of legislation to the contrary, be included within the territory of both districts. The question before us is therefore whether the tract is part of the Panhandle District or part of the Hemphill District.

A political subdivision has no contractual right in its boundaries, and "the Legislature has the same authority to enact legislation decreasing boundaries as it does to validate ordinances increasing boundaries." City of Deer Park v. State ex rel. Shell Oil Co., 275 S.W.2d 77, 82 (Tex. 1954). Subject only to constitutional limitations, the power of the Legislature to fix the boundaries of a political subdivision is plenary. Steinhagen v. Eastham, 233 S.W. 660, 663 (Tex. Civ. App.—Beaumont 1921), aff'd, 243 S.W. 457 (Tex. 1922). Indeed, the Legislature has demonstrated that it knows how, if it so chooses, to carve out land that has been annexed by a district and to leave that land outside of a new district when enacting legislation creating the new district. See Act of May 24, 1989, 71st Leg., R.S., ch. 653, §§ 3, 14(a), 1989 Tex. Gen. Laws 2153, 2154-55 ("This Act shall not apply to any lands which have been annexed into the Glasscock County Underground Water District . . . prior to the effective date of this Act."). Accordingly, the 1995 special law creating the Hemphill District prevails over the prior annexation of the tract by the Panhandle District pursuant to general law.

II. Jeff Davis and Contiguous Districts

The Jeff Davis County Underground Water Conservation District was created by special law in 1993. The boundaries of the district are "coextensive with Jeff Davis County." See Act of May 31, 1993, 73d Leg., R.S., ch. 641, § 3, 1993 Tex. Gen. Laws 2414. The Presidio County Underground Water Conservation District was created at the same legislative session. The boundaries of the Presidio District are "coextensive with Presidio County." The Presidio District required an election "to confirm establishment of the district." See Act of May 28, 1993, 73d Leg., R.S., ch. 453, §§ 3, 7(a), 1993 Tex. Gen. Laws 1826, 1827. A confirmation election was not held until August 31, 1999 at which time the establishment of the district was confirmed. Prior to that election, however, a single landowner in Presidio County had petitioned for annexation to the Jeff Davis District. The Jeff Davis District's board of directors granted the petition in April 1999. As was the case with the Panhandle and Hemphill Districts, the special law creating the Presidio District prevails over the prior annexation by the Jeff Davis District pursuant to general law. It follows that, for purposes of statutory construction, the tract in question is exclusively within the territory of the Presidio District. [Footnote 3: Telephone Conversation with Janet Adams, Manager, Jeff Davis District and Presidio District (Oct. 13, 2009) [hereinafter Adams Conversation].]

In 1999, the Legislature by special law created thirteen new groundwater conservation districts, among them the Middle Pecos Groundwater Conservation District. The boundaries of the Middle Pecos District are "coextensive with the boundaries of Pecos County." One provision of the special law required a confirmation election to be held "[n]ot earlier than September 1, 2001." Another provision declared, however, that "[n]otwithstanding the provisions of Section 10 of this Act, an election for the confirmation of the creation of a groundwater conservation district under this Act and for the selection of initial directors for such district shall not be held unless action is taken by the 77th Legislature in its Regular Session to ratify the creation of the district." See Act of May 28, 1999, 76th Leg., R.S., ch. 1331, §§ 1, 2(7), 10(a), 15(a), 1999 Tex. Gen. Laws 4536, 4536, 4539.

In November 2000, the Jeff Davis District's board granted a single landowner's request to annex his land to the Jeff Davis District. Adams Conversation, supra note 3. The next legislative session, however, ratified the creation of the Middle Pecos District. See Act of May 24, 2001, 77th Leg., R.S., ch. 1299, § 1, 2001 Tex. Gen. Laws 3177. On the basis of the primacy of the special law creating the Middle Pecos District over the annexation by the Jeff Davis District pursuant to general law, we conclude that the tract in question, for purposes of statutory construction, is exclusively within the territory of the Middle Pecos District.

The same landowner in Pecos County who petitioned the board of the Jeff Davis District in November, 2000 to annex his Pecos County property simultaneously petitioned the board to annex his land in Brewster County. The Jeff Davis District board subsequently granted his petition. Adams Conversation, supra note 3. The following year, the Legislature by special law created the Brewster County Groundwater Conservation District. The boundaries of the district are "coextensive with the boundaries of Brewster County." The Brewster District was subsequently ratified in a confirmation election required by the special law. See Act of May 27, 2001, 77th Leg., R.S., ch. 1291, §§ 1, 3, 9, 2001 Tex. Gen. Laws 3117, 3118. Because, as we have indicated, section 36.052 of the Water Code provides that a "special law governing a specific district shall prevail over" chapter 36, including its provisions regarding annexation, we conclude that the tract at issue here, for purposes of statutory construction, is currently a part of the Brewster District. TEX. WATER CODE ANN. § 36.052(a) (Vernon 2008).

We emphasize that the conclusions we have reached in the above scenarios apply only to the status of the referenced tracts under principles of statutory law. In any particular case, there may be constitutional considerations that would require a different result.

SUMMARY

Two different political subdivisions may not exercise jurisdiction over the same territory at the same time and/or the same purpose. For purposes of statutory law, the 1995 special law creating the Hemphill County Underground Water Conservation District prevails over the prior annexation of territory by the Panhandle Groundwater Conservation District pursuant to general law. A disputed tract of land claimed both by the Jeff Davis County Underground Water Conservation District and the Presidio County Underground Water Conservation District is exclusively within the territory of the Presidio District. A disputed tract of land claimed both by the Jeff Davis County Underground Water Conservation District and the Middle Pecos Groundwater Conservation District is exclusively within the territory of the Middle Pecos District. A disputed tract of land claimed both by the Jeff Davis County Underground Water Conservation District and the Brewster County Groundwater Conservation District is exclusively within the territory of the Brewster District. In any of the above referenced scenarios, there may exist constitutional considerations that would require a different result.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

DANIEL T. HODGE
First Assistant Attorney General

NANCY S. FULLER
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee