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                     THE         ATJY~RNEY                    GENERAL

                                        OP        TEXAS

                                        AUSTIN      m.Texan
   WI&L   WILSON
AlTOHNEYGMNERAL
                                           September      15, 1959




  Honorable   Durwood Manford,          Chairman
  Board of Water Engineers
  P. 0. Box 2311
  Capitol Station
  Austin, Texas
                                                          Opinion    No. WW-703

                                                          Re:   Does Article     7880-21, as appli-
                                                                cable to a petition filed with
                                                                the Board of Water Engineers
                                                                seeking additional     powers pursuant
                                                                to Art. 7880-3a, include the require-
                                                                ment of Art. 7880-12, that the peti-
                                                                tion or certified   copy thereof    be
                                                                filed with the County Clerk of each
                                                                affected  County.

  Dear   Mr.   Manford:

                   In your   letter   you state    the following    facts:

                    “A petition duly signed by more than fifty tax-paying
                    holders    of title to lands in Dallas County Water Con-
                    trol and Improvement         District   No. 6, created    by or-
                    der of the Dallas Commissioners’              Court  on July 23,
                    1951,has recently been filed with this Board seek-
                    ing additional      powers for disposal       of waste and
                    providing    facilities   and service     under the provisions
                   ‘of Article    7880-3a, V.A.C.S.       . . . .

                   “Article   7880-12 provides    for the filing of the peti-
                   tion for the organization    of a water control and im-
                   provement     district with the County Clerk of each
                   affected  county and states that the petition        shall be
                   recorded    in a book kept for that purpose in the
                   office of the County Clerk.      Rule 630.2(b), Rules,
                   Regulations    and Modes of Procedure        of theBoard
                   of Water Engineers,      1955 Revision,     referring     to
                                                                                           .    -




Honorable    Durwood     Manford,    Chairman,     page    2 (WW-703)




                such proceedings,       requires    a certificate    from the
                County Clerk of each affected          county that the peti-
                tion or certified    copy thereof     has been filed in
                his office in accordance        with Article     7880-12.   The
                Board has instructed       petitioners     to file the peti-
                tion or a certified     copy thereof with the Dallas
                County Clerk in accordance          with the above rule.
                However,   petitioners,      through their attorney,
                have informed      the Board that the Dallas County
                Clerk refuses     to file the petition for the reason
                that there is no statutory       authority    for him to do
                so.”

                 You then ask our      opinion   concerning    the following      questions:

                “1. Does Article    7880-21, as applicable     to a
                petition filed with the Board of Water Engineers
                seeking additional   powers  pursuant to Article
                7880-3a, include the requirement       of Article
                7880-12, that the petition  or certified   copy thereof
                be filed with the County Clerk of each affected
                county.

                “2.    If question   NO.   1 is answered   in the affirma-
                tive, does a County Clerk have statutory      authority
                and responsibility to file such petition or certified
                copy thereof when presented     to him in the proper
                form and accompanied      by appropriate  fees.”

               Article 7880-12, V. C. S., provides    that a petition for the or-
ganization  of a water control and improvement      district  (hereinafter
abbreviated   as W. C. I. D. ) shall be filed in the office of the county clerk
of each county in whichthe    district is situated and shall be recorded    in a
book kept for that purpose in the office of the county clerk,

                 Article   7880-21, V. C. S., provides         that the Board of Water
Engineers     shall have exclusive     jurisdiction      to hear petitions    for the or-
ganization    of a W. C. I. D. which is proposed           to include lands situated in
two or more counties.        It states that “upon the filing of such petition”            the
Board shall give notice in a prescribed             manner and hear the petition in
the manner provided        by law.   The    “filing    of such petition”     which invokes
the jurisdiction     of the Board is the filing of the petition with the Board
and not the filing with the county clerk.            Lovett v.‘Cronin,     245 S. W. 2d
Honorable    Durwood    Manford,     Chairman,      page   3 (Ww-703)




519 (Civ. App. 1951). A failure       to file the petition with the county clerk
before a hearing    on the petition    by the Board, when the Board gave proper
notice as required    by Article    7880-21, was held to be “only an irregularity
which did not make the creation        of the district   void.”  Lovett v. Cronin,
supra at 522. Presumably         to avoid this situation in the future, the Board
included in its rules of procedure       in 1955 the requirement       that a petition
for the creation   of a W. C. I. D. be accompanied         by “a certificate     from
the County Clerk of each affected        county that the petition    or a certified
copy thereof   has been filed in his office,     in accordance    with Article     7880-12.”
Rule 630.2(b) (S), Rules, Regulations        and Modes of Procedure,       Board of
Water Engineers,     1955 Revision.

                In most situations,      when the lands to be included in a district
lie wholly within one county, as in the case of Dallas County W. C. I. D. No.
6, “the formation      thereof    shall be considered      and ordered   by the county
commissioners’       court”,    the jurisdiction    of the Board of Water Engineers
being reserved     for districts    embracing     lands in more than one county.
Article   7880-13, V. C. S. For this reason,          Dallas County W. C. I. D. No.
6 was originally     created   by order of the Dallas County Commissioners’
Court.    However,    under the provisions       of Article   7880-3a, exclusive     juris-
diction is vested in the Board of Water Engineers              to hear and determine
petitions  for the creation      of a W. C. I. D. embracing       any of the following
matters:

                “All works, facilities,      plants, equipment,      and appliances
                in any and all manner incident         to, helpful or necessary
                to the collection,    transportation,     processing,    disposal,
                and control    of all domestic,     industrial,   or communal
                wastes,   whether    of fluids, solids,    or composites,     and
                to gather, conduct, divert,       and control    local storm
                waters,   or other local     harmful    excesses    of water.  . . .‘I
                Article   7880-3a’.

                The   Board   has exclusive      jurisdiction   to hear   and determine




                1. An amendment      in 1941 adding to this list the power to operate
fire engines and fire-fighting     equipment   was declared    unconstitutional,  not,
however,   affecting the val idity of the remainder     of the statute.    Harris County
W. C. I. P. v. Albright.    153 Tex. 94, 263 S. W. 2d (1954); Deason v.
Orange County W. C. I. D. No. 1, 151 Tex. 29, 244 S. W. 2d 981 (1952).
                                                                                            .        .,.




Honorable     Durwood     Manford,    Chairman,      page   4   (WW-703)




such petitions even though the lands to be included in the district lie wholly
within one county.  Harris  County W. C. I. D. v. Albright, 153 Tex. 94, 263
S. W. 2d 944 (1954); Lovett v. Cronin,  supra.

               Thus even though Dallas County W. C. I. D. No. 6 was created
in 1951 by a County Commissioners    ’ Court, it was necessary  to file a
petition with the Board of Water Engineers    in order to apply for the above-
listed powers.

               In hearing  petitions    for the creation    of a W. C. I. D. having the
powers listed in Article    7880-3a. the Board of Water Engineers            must    “hear
and determine    the same under the applicable        provisions   of Section 5 of
 Chapter 280, Acts of the Regular       Session of the Forty-first     Legislature
 /-Article 7880-21-j    ” Article    7880-3a(6).    Thus such a petition     should be
filed with the appropriate    county clerk, although the Board’s        jurisdiction
to hear the petition is invoked as soon as the petition is filed with the Board
 Lovett v. Cronin,   supra  (which involved      a petition filed under Article      7880-3a).

                 Article    7880-3a also provides         for petitions     to add the listed
powers    to W. C. I. D.‘s     “now   existing,    or   hereafter    to   be  created”     and
states that any such district       which     I’did not at the time of its creation           have
conferred    upon it the powers in this Section provided               for, may receive        and
assume the additional        powers by this Section provided             for in the same manner
and by the same procedures          as are provided         for in this Section.      . . . /-with
certain   provisions     concerning    elections>     ”      Article  7880-3a(7).       Thu; such
a petition for additional      powers     should also be heard and determined               under
the applicable     provisions    of Article    7880-21, and by virtue of the statutes
as interpreted     in the Lovett case, w,             such a petition should also be filed
with the appropriate       county clerk.

                 The answer to your first question is that a petition            (or a cer-
  tified copy thereof) filed with the Board of Water Engineers            seeking additional
 powers    pursuant to Article   7880-3a should also be filed with the county clerk
 of each county in which the district      is situated.    The jurisdiction     of the Board
 to hear and determine      the petition is invoked by the filing of the petition with
 the Board and does not depend on its filing with the county clerk; but by vir-
tue of the rules of procedure       adopted by the Board, such a petition filed with
 the Board should be accompanied         by evidence    that it was filed with the
 county clerk.

              The answer to your second question is that the county clerk
does have statutory    authority and responsibility  to file such a petition or
certified copy thereof   when presented   to him in the proper form and accom-
panied by appropriate    fees, such responsibility  arising  from Article   7880-12,
Honorable    Durwood    Manf ord,   Chairman,       page    5   (WW-703)




v. c. s.     Such petitions   should be recorded       by the county           clerk in the book
provided    for the recording    of petitions for    the organization             of W. C. I. D.s.



                                           SUMMARY

                A petition,   or certified   copy thereof,  filed with the
                                                                                                     .
                Board of Water Engineers         seeking additional   powers
                pursuant to Article      7880-3a should also be filed with
                the county clerk of each county in which the district
                is situated.    The jurisdiction    of the Board to hear
                and determine     the petition is invoked by the filing of
                the petition with the Board and does not depend on
                its filing with the county clerk.

                The county clerk has statutory       authority   and res-
                ponsibility to file such a petition or certified
                copy thereof when presented       to him in the proper
                form and accompanied      by appropriate      fees by
                virtue of Article   7880-12.  Such petitions      should
                be recorded    by the county clerk in the book pro-
                vided for the recording    of petitions   for the organi-
                zation of water control    and improvement        districts.



                                                     Yours      very   truly,



APPROVED:                                            WILL WILSON
                                                     Attorney General             of Texas

OPINION     COMMITTEE
                                                     By:&                  &        %giid

Geo.   P. Blackburn,    Chairman                        James D. McKeithan
                                                        Assistant Attorney General

B. H. Timmins,    Jr.
C. Dean Davis
William  E. Allen
Jay D. Howell



REVIEWED   FOR THE         ATTORNEY        GENERAL
By: W. V. Geppert
