In Texas, can a county commissioners court create a single-county underground water conservation district, or only the state water agency?

Texas AG Opinion JM-1024: Who Can Create a Single-County Underground Water District?

Plain-English summary

Underground water conservation districts are the local entities that manage groundwater pumping in Texas. This opinion answered a jurisdictional question about who gets to create one: the state water agency, or the local county commissioners court?

A state representative asked because section 52.022 of the Water Code, part of the chapter that governs these districts, borrows the district-creation procedures from chapter 51 (the water control and improvement district law), and chapter 51 lets a commissioners court create single-county districts. So the natural reading might be that a county could authorize a single-county underground water district on its own. The Attorney General said no. Under subchapter B of chapter 52, the Texas Water Commission is the only governmental body with jurisdiction to create an underground water conservation district. A commissioners court has no such power.

The answer turns entirely on legislative history, and the opinion laid it out step by step. Underground water conservation districts first appeared in 1949, added onto a 1925 statute that had created water control and improvement districts. Under that older setup, a commissioners court handled districts inside a single county and the state board handled districts spanning two or more counties. When Texas codified its water laws in 1971 into chapters 51 and 52, that division of labor carried over, and a commissioners court still had jurisdiction over a single-county underground water district.

Then came the turning point. In 1973, the Legislature amended chapter 52 (through H.B. 935) to strike out every reference to the commissioners court's role in creating these districts. The bill analysis said plainly that the act gave the Water Rights Commission "exclusive authority to create a district" and removed the local commissioners court's authority to grant or refuse a creation petition. Section 52.022 was left alone and still points to chapter 51's procedures, but the specific chapter 51 provision for granting or refusing a petition (section 51.021(d)) is expressly made inapplicable to chapter 52 districts. So even when you pull chapter 51's rules into a chapter 52 creation, there is no provision letting a commissioners court grant or deny the petition. Only section 52.025 does that job, and since 1973 it points to the state commission alone (the Water Rights Commission, later succeeded by the Texas Water Commission).

The opinion checked one more thing: a 1985 act that substantially rewrote chapter 52 and added a new subchapter C for districts in "critical areas." Nothing in that 1985 act brought back any commissioners court authority. And none of the subchapter B provisions mention the commissioners court at all. So the conclusion held: for a district created under subchapter B of chapter 52, the state commission is the only body that can do it.

Currency note

This opinion was issued in 1989. 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.

Texas groundwater district law has changed significantly since 1989. The functions of the Texas Water Commission were later reorganized (its water-rights and regulatory roles moved through successor agencies), and the modern framework for groundwater conservation districts is now built largely around chapter 36 of the Water Code, along with district-specific enabling legislation and confirmation elections. Anyone creating or challenging a groundwater district today should work from the current Water Code and the relevant agency, not the chapter 52 subchapter B provisions described here.

Who this opinion affected (as of 1989)

County commissioners courts: The opinion confirmed they had no authority to create an underground water conservation district under subchapter B of chapter 52, even for a single-county district, because the Legislature stripped that authority in 1973.

The Texas Water Commission: The opinion confirmed the commission held exclusive jurisdiction to grant or refuse a petition to create such a district.

Landowners and groups seeking to form a district: The opinion told them where to file. A petition to create a subchapter B underground water conservation district had to go to the state commission, not the county.

Common questions

Can a Texas county create its own single-county groundwater district under chapter 52?
No. The Attorney General concluded that only the Texas Water Commission had jurisdiction to create an underground water conservation district under subchapter B of chapter 52 of the Water Code.

Didn't section 52.022 point to chapter 51, which lets counties create districts?
Section 52.022 did borrow chapter 51's creation procedures, but the key chapter 51 provision for granting or refusing a petition (section 51.021(d)) is expressly inapplicable to chapter 52 districts, so it did not give a commissioners court power to create one.

When did counties lose this authority?
In 1973. The Legislature amended chapter 52 (H.B. 935) to delete the commissioners court's role and give the state commission exclusive authority to grant or refuse a creation petition.

Did the 1985 rewrite of chapter 52 change that?
No. The 1985 act substantially amended chapter 52 and added a subchapter C for "critical areas," but the Attorney General found nothing in it that reinstated any commissioners court authority.

Background and statutory framework

The request asked whether, under subchapter B of chapter 52 of the Water Code, the Texas Water Commission is the only entity that may authorize the creation of an underground water district, or whether a county may authorize the creation of a single-county district under section 52.022 and chapter 51. Chapter 52 provides for the creation and operation of underground water conservation districts, and subchapter B provides for their creation generally.

The Attorney General reviewed the statutory history. Provisions for creating underground water conservation districts were first adopted in 1949 (Acts 1949, 51st Leg., ch. 306), which added a new section 3c to a 1925 act that had provided for the creation and operation of water control and improvement districts (Acts 1925, 39th Leg., ch. 25). Subsection B of section 3c authorized the creation of districts to conserve and protect underground water, to be accomplished pursuant to article XVI, section 59 a, b, and c of the Texas Constitution, applying the administrative and procedural provisions of the 1925 act "in so far as applicable." Under the 1925 act, the county commissioners' court had exclusive jurisdiction over petitions for organization in one county, while the State Board of Water Engineers had jurisdiction over petitions covering two or more counties. The 1949 act's subsection B language contemplated that same division: the commissioners court over single-county underground water districts and the State Board over multi-county ones (see Attorney General Opinion V-[number] (1950)).

In 1971, the 1925 and 1949 provisions were codified as chapters 51 and 52 of the Water Code, and codification was not intended to make substantive changes (Water Code § 1.001; Acts 1971, 62d Leg., ch. 58, § 1.001). The second sentence of subsection B of the 1949 act became section 52.022, which provided that, except as otherwise provided by that subchapter, the chapter 51 provisions for creating water control and improvement districts apply to the creation of underground water conservation districts to the extent applicable. Chapter 51 carried forward the commissioners court's jurisdiction over single-county water control and improvement districts and the Texas Water Rights Commission's jurisdiction over multi-county districts (the Board of Water Engineers' duties having been transferred to the Texas Water Rights Commission in 1965). So under the 1971 Water Code, the commissioners court had jurisdiction over creating a single-county underground water conservation district (see 1971 Water Code §§ 52.023, 52.025).

In 1973, the Legislature amended chapter 52 to delete all references to the commissioners court's jurisdiction over the creation of underground water conservation districts (Acts 1973, 63d Leg., ch. 598). Section 52.022 was not amended and continued to borrow chapter 51's procedures, but sections 52.023 and 52.025 were amended to remove the commissioners court and leave only the commission. The bill analysis to the 1973 act (H.B. 935) stated the act "gives the Water Rights Commission exclusive authority to create a district" and "removes from the local commissions [sic] court the authority to grant or refuse a petition for creation of a district." Moreover, the key chapter 51 provision for granting or refusing a creation petition is expressly inapplicable to chapter 52 underground water conservation districts (Water Code § 51.021(d)). Thus, even drawing on chapter 51 provisions to create a chapter 52 district, there is no provision for a commissioners court granting or refusing a petition; section 52.025, after 1973, confers that authority only on the Texas Water Rights Commission or its successor, the Texas Water Commission (the Texas Water Commission having been created in 1977 as successor to the Texas Water Rights Commission, Acts 1977, 65th Leg., ch. 870).

A 1985 act substantially amended chapter 52 (Acts 1985, 69th Leg., ch. 133), but the Attorney General found nothing in it reinstating the commissioners court's authority. The 1985 amendment to section 52.022 specified that the chapter 51 provisions applied only to the creation of underground water conservation districts under subchapter B, because the same bill added a subchapter C providing for the creation of such districts in "critical areas." None of the subchapter B provisions reference the commissioners court, and the subchapter provides for the granting or refusing of a creation petition only by the commission (Water Code § 52.025). The Attorney General therefore concluded that the Texas Water Commission is the only governmental body with jurisdiction over the creation of an underground water conservation district under subchapter B of chapter 52, and a commissioners court has no such authority.

Citations

Statutory and constitutional authority:

• Water Code § 52.022 (chapter 51 creation procedures apply to underground water conservation districts under subchapter B, to the extent applicable)
• Water Code § 52.023, § 52.025 (consideration, granting, or refusal of a creation petition; post-1973, only the commission)
• Water Code § 51.021(d) (chapter 51 provision for granting or refusing a petition, expressly inapplicable to chapter 52 districts)
• Water Code § 1.001 (1971 codification not intended to make substantive changes)
• Tex. Const. art. XVI, § 59 (conservation of natural resources; basis for water conservation districts)

Session laws referenced:

• Acts 1925, 39th Leg., ch. 25 (water control and improvement districts); Acts 1949, 51st Leg., ch. 306 (underground water conservation districts, section 3c); Acts 1971, 62d Leg., ch. 58 (Water Code codification); Acts 1973, 63d Leg., ch. 598 (H.B. 935, removing commissioners court authority); Acts 1985, 69th Leg., ch. 133 (substantial amendment of chapter 52)

Related opinion:

• Attorney General Opinion V-[number] (1950) (single-county vs. multi-county jurisdiction under the 1949 act; opinion number not legible in the scanned source)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1024
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1989/jm1024.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor OCR errors may remain; the linked PDF is authoritative. Two block quotes below reproduce statutory text that the original printed with strike-through and inserted amendment markup; that markup did not survive scanning, so the post-amendment operative text is given with an editorial note.

February 28, 1989

Honorable Terral Smith
Chairman
Natural Resources
Texas House of Representatives
P. O. Box 2910
Austin, Texas 78769

Opinion No. JM-1024

Re: Whether a commissioners court may authorize the creation of a single-county underground water district under section 52.022 of the Water Code (RQ-1606)

Dear Representative Smith:

You ask:

Under Subchapter B, Chapter 52, Water Code, is the Texas Water Commission the only governmental entity that may authorize the creation of an underground water district or may a county, in the case of a proposed single-county district, authorize the creation of a district pursuant to Section 52.022, Water Code, and Chapter 51, Water Code?

Chapter 52 of the Water Code provides for the creation and operation of underground water conservation districts. Subchapter B provides for the creation of such districts generally.

We conclude that the Texas Water Commission is the only governmental body having jurisdiction over the creation of an underground water conservation district pursuant to subchapter B of chapter 52 of the Water Code. A commissioners court has no such authority.

Provisions for the creation of underground water conservation districts were first adopted in 1949. Acts 1949, 51st Leg., ch. 306, § 1, at 559. The 1949 act's provisions added new section 3c to the provisions of a 1925 act which had provided for the creation and operation of water control and improvement districts. Acts 1925, 39th Leg., ch. 25, § 1, at 86.

Subsection B of section 3c, added by the 1949 act, provided in part:

Districts[1] may hereafter be created for the conservation, preservation, protection, and recharging and the prevention of waste of the underground water of an underground water reservoir or subdivision thereof, defined and designated in accordance with the provisions of Subsection C of this Section 3c. To accomplish these purposes pursuant to Section 59 a, b, and c, of Article XVI of the Constitution of Texas, the administrative and procedural provisions as now or hereafter contained in Chapter 25, Acts of the Regular Session of the Thirty-ninth Legislature of the State of Texas, 1925, as amended, shall apply in so far as applicable to such Districts, but such Districts shall not be organized for any purposes except those set forth in this Section 3c. (Emphasis and footnote notation added.)

[1] "District" was defined in the 1949 act as "an Underground Water Conservation District which includes within its purposes and plans those functions authorized by the provisions of this Section 3c." Subsection A, section 3c.

The 1925 act had provided for the creation of water control and improvement districts pursuant to a petition of landowners. Acts 1925, 39th Leg., ch. 25, §§ 10-17, at 88-89. Section 18 of the 1925 act provided in part:

The county commissioners' court shall have exclusive jurisdiction to hear, consider and determine all such petitions for organization in one county . . . .

Acts 1925, 39th Leg., ch. 25, § 18, at 89. Section 19 provided for the commissioners court granting such petition if it appeared to it that the organization of the district was feasible and practicable and would benefit the included land or be "a public benefit, or utility."

Section 21 of the 1925 act provided in part:

The State Board of Water Engineers shall have jurisdiction to hear and determine all petitions for organization of a district which included land in two or more counties. . . .

Said board shall consider such petitions in the same manner and purpose herein provided for consideration of petitions by the commissioners' court for formation of districts in one county.

Acts 1925, 39th Leg., ch. 25, § 21, at 90.

It appears that the above-quoted language of subsection B of section 3c added by the 1949 act contemplated that, as with the water control and improvement districts provided for in the 1925 act, the commissioners court would have jurisdiction over the formation of underground water conservation districts in one county, and the State Board of Water Engineers would have jurisdiction over the formation of such districts including territory of more than one county. Subsection C of the 1949 act provided specifically for the consideration of petitions for the formation of underground water conservation districts "by a Commissioners Court or the Board, as the case may be . . . ." Acts 1949, 51st Leg., ch. 306, § 1, at 561. See Attorney General Opinion V-[number] (1950).

In 1971, the provisions of the 1925 and 1949 acts were codified as chapters 51 and 52, respectively, of the Water Code. Codification was not intended to make any substantive changes in the state water laws. See Water Code § 1.001; Acts 1971, 62d Leg., ch. 58, § 1.001, at 110. The second sentence of subsection B of the 1949 act, quoted above, became the source of the section to which you refer in your request, section 52.022, which then provided:

Except as otherwise provided by this subchapter, the provisions in Chapter 51 of this code for creating water control and improvement districts apply to the creation of underground water conservation districts to the extent that those provisions may be made applicable.

(See Revisor's Note to section 52.022.)

Chapter 51 carried forward the provisions of the 1925 act giving the commissioners court jurisdiction over the creation of water control and improvement districts in a single county, and the Texas Water Rights Commission[2] jurisdiction over the creation of a district encompassing territory in two or more counties. See §§ 51.016-51.022, 1971 Water Code.

Similarly, chapter 52 continued to provide for the considering and granting of petitions for the creation of underground water conservation districts by either a commissioners court or the Texas Water Rights Commission. See 1971 Water Code §§ 52.023 and 52.025. It thus appears that under the 1971 Water Code, the commissioners court had jurisdiction over the creation of an underground water conservation district encompassing land in only one county.

[2] The duties of the Board of Water Engineers were transferred to the Texas Water Rights Commission in 1965. Acts 1965, 59th Leg., ch. 296, § 9, at 585.

However, in 1973, the legislature amended chapter 52 to delete all references to the commissioners court's jurisdiction over the creation of underground water conservation districts. Acts 1973, 63d Leg., ch. 598, §§ 1-5, at 1641. Section 52.022 was not amended at that time and continued to provide that "[e]xcept as otherwise provided by this subchapter, the provisions of Chapter 51 of this code for creating water control and improvement districts apply to the creation of underground water conservation districts to the extent that those provisions may be made applicable." But sections 52.023 and 52.025 were amended as follows in pertinent part:

Section 52.023(a)

[The 1973 amendment struck the commissioners-court references; the operative text after amendment provides:] The commission may not consider a petition for the creation of a district unless the proposed boundaries of the district are coterminous with the boundaries of an underground water reservoir or a subdivision of an underground water reservoir, as previously designated by the commission.

Section 52.025

[As amended in 1973, the commissioners-court references were struck, leaving:]

(a) If the commission finds that the district is feasible and practicable, that it would be a benefit to land in the district, and that it would be a public benefit or utility, the commission shall make these findings and grant the petition.

(b) If the commission finds that the district is feasible and practicable, that it would not be a benefit to land in the district, that it would not be a public benefit or utility, or that it is not needed, the commission shall refuse to grant the petition.

The bill analysis to the 1973 act (H.B. 935) states that the act "[g]ives the Water Rights Commission exclusive authority to create a district" and "[r]emoves from the local commissions [sic] court the authority to grant or refuse a petition for creation of a district."

Indeed the key provision in chapter 51 for the granting or refusing of a petition for creation of a district is expressly inapplicable to chapter 52 underground water conservation districts. Water Code § 51.021(d).[3] Thus, even drawing on chapter 51 provisions for purposes of creation of a chapter 52 underground water conservation district, there is no provision for a commissioners court granting or refusing a petition for creation of such a district. Section 52.025, subsequent to the 1973 act, confers such authority only on the Texas Water Rights Commission or its successor the Texas Water Commission.[4]

A 1985 act substantially amended chapter 52. Acts 1985, 69th Leg., ch. 133, §§ 1-6, at 617. However, we find nothing in that act reinstating the authority of the commissioners court with respect to the creation of underground water conservation districts under subchapter B of chapter 52. The act's amendment to section 52.022 was to specify that the chapter 51 provisions applied only to creation of underground water conservation districts under subchapter B of chapter 52, as the legislature added in the same bill a subchapter C providing for the creation of such districts in "critical areas." None of the provisions of subchapter B reference the commissioners court, in connection with creation or otherwise. The subchapter provides for the granting or refusing of a creation petition only by the commission. Water Code § 52.025.

[3] The provisions of subdivision (d) of section 51.021 first appeared in 1957. Acts 1957, 55th Leg., ch. 323, at 786. The 1957 act provided alternative procedures for the granting or refusing of a petition by a commissioners court or the Board of Water Engineers in connection with the creation of an underground water conservation district. At present, only section 52.025 provides for the granting or refusing of such a petition. Since the 1973 amendment, that section has conferred such authority only on the Texas Water Rights Commission or its successor, the Texas Water Commission. See footnote 4, infra.

[4] A 1977 act created the Texas Water Commission as the successor to the Texas Water Rights Commission. Acts 1977, 65th Leg., ch. 870, § 9, at 2207.

Therefore, in response to your question, we conclude that the Texas Water Commission is the only governmental body having jurisdiction over the creation of an underground water conservation district pursuant to subchapter B of chapter 52 of the Water Code. A commissioners court has no such authority.

SUMMARY

The Texas Water Commission is the only governmental body having jurisdiction over the creation of an underground water conservation district pursuant to subchapter B of chapter 52 of the Water Code. A commissioners court has no such 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 William Walker
Assistant Attorney General