                                           NEV        GENERAL
                                   OF




                                     March 25,      1969

Hon. John Allen
Chairman, Conservation    and
  Reclamation   Committee
House of Representatives
C&pit01 Station
Austin,  Texas 78711
                                          Opinion     No. M-364

                                          Re:    Constitutionality       of
                                                 granting     authority   for
                                                 spacing    ICules and regu-
                                                 lations    to an under-
                                                 ground water conservation
                                                 district     created   by the
Dear Mr. Allen:                                  Legislature.

       Your recent  letter  on behalf  of the Conservation    and
Reclamation    Committee, House of Representatives,     requests
our opinion    as to whether House Bill No. 128, If enacted
into law, will be valid.      House Bill  No. 128 reads as
follows:

                               “A BILL TO PE ENTITLED

                                         AN ACT

                        authorizing     the “Panhandle Ground
                        Water Conservation        District   No. 3
                        South of the Canadian River in Texas”
                        on approval     of the qualified      electors
                        in the district       to make rules and re-
                        gulations   requiring      the spacing’of
                        irrigatitin   tiells   reasonable    drstances
                        froin property     lines;   atid declaring     an
                        emergency.
       BE IT ENACTEDBY THE LEG&S&ATURE
                                     OF THE STATE OF TEXAS:
      “Section         Ii,   Upon the approval   cif the quallfled  bledtors
of   the   district,         the Board of Directors     of the “Panhandle

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Hon. John Allen,      page 2 (M-364)



Ground Water Conservation        District   ‘No. 3 South of’the
Canadian River ‘in Texas” may’by resolution’           make rtiles and
regulations   requirfng     the spacing    of irrigation    wells
reasonable   distances    from property      lines.    These distances
shall   have a direct    reiaflonship     to the spacing    required
between irrigation      wells.

      “Sec. 2. (a)      At the next regular     election     held In the
district    after   the effective    date of this Act, the board of
directors    shall    submit to the qualified      electors     of the dis-
trict    the proposition      of whether or not the board of directors
may make rules and regulations          for spacing    irrigation     wells
reasonable     distanc,es   from property   lines.

      “(b)   The ballots    shall   be printed   to allow for voting
for or against     the propoeition:       “Authorizing   the board of
dlredtors    of the district      to make rules and regulations      re-
quiring    the spacing   of irrigation     wells reasonable   distances
from property    lines.”

      “(c)  If a majority  of the qualified   electors  of the
district   voting in the election   approve the proposition,
the board of directors    may proceed to make spacing     rules
and regulations   under the provisions    of this Act. (Emphasis                   added).

       This district      was created      pursuant to the general        law
procedures     set forth     in Article     7880-3c,   Vernon’s    Civil
Statutes.     Subsequently       In 1957, the Legislature         therein
provided    that the creation,        establishment,      boundaries,     and
election    procedures     creating     the district     were “ratified,
confirmed    and validated”       by the Legislature.        Acts 55th
Leg. R.S. 1957, ch. 19, p. 27 (Article               8280-191 V.C.S.)
The district      was,referred      to in this validation       law as
“Ground Water Conservation           District    Number Three, South of
the Canadian River;”         it consists      of a portion   of Carson
and Gray Counties,        and is ~described      In Volume 1, Page 97,
of the Water District          Records of Gray County, Texas.            The
records    of Texas Water Rights Commission (formerly                Board
of Water Engineers ) , list         the name’of this underground-
water district,’ as “(Panhandle)           Ground Water Conservation
District    No. 3, South of the Canadian River in Texas.”                   House
Bill No. 128’uses        the name refletited’by       Texas Water Rights
Commission records        without the parentheses.




                                  -1798-
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    Hon. John Allen,          Page   3 (M-364)



            In the above mentioned Act of the Legislature
    ratifying       confirming    ahd’valldatlng          this district
    (A~ti6le’b280-191,         supra),   S&tions        2 and’3 v&lidle
    incorporatd      by reference      Articles      7880-l    through’1   721,
    iructi referenc&titatuteri       being the geneml           laws relating        to
    uhddr+ground wateli conservation            disiiricts.      Trlmmler v.-
    Carlton,     116 Tex. 572, 296 S.W. 1070 (1927).

              This validating     a&t, in Subsection           (4),   of   Sectlon   2,
    Article       8280-191,   reads as follows:

                    “(4)       To provide     for the spacing       of
                      wells producing         from the underground
                      water reservoir         or tiubdivisloti     there-
                     “of and to regulate          the productl;;r       was
                      therefrom       so -8s to’,minlmize      as
                      practicable        the drawdown of the water
                      table or the reduction          of the artesian
                      pressure;       provided,’ however,       the’ owner
                      of’ttie    land; hiti heirs,      tis#lghs’&nd
                      lessees,      Shall not be denied’ ei permit
                      to’drlll      ti tie11 on his latid’arid pro-
                      duce utidergrotirid ivtiter ‘thetibftiom
                      subject      to rules and regultitionb          p?b-
                      mulgated hereunder          to prevent waste.”
                      (Emphasis added.)

          Thls,portion’of   the law is to be construed     In pari
    materla with Subsection    B, (4) of Article  7880-3c,    as
    amended (Acts 54th Leg. R.S. 1955, ch. 496, p. 1239).

           The.proposed      House Bill     No. 128, if enacted,        must be
    construed.ln      pari materia with the above statutes              and would
    vary the ~present 1Bw to require            election    approval    of pro-
    perty line spacing        rules by the voters        of the district
    bbfore’lrrigation        wells could be spaced “reasonabLe            did-
    trances from property        lines *I’ Proper, spacing       of irrigation
    wells    is grounded on minimizing          drawdown and loss of
    pressure     as to underground       water.     Article   8280-191,
    dupea;      Whenever the district       ‘board of directors       finds
    that ~th$s would be ‘,a$compllshed          by’ water ‘well spacing      in
    relation     to   roperty    1,lnes ,or surface ,surve s of .lands          and
    when reasona iily related        to~such purposes0       tKe regu.lati&
    would be a valid delegation           of the police      power
    underground      water conservation       district.       Well ~~a,tf?&”


                                                -1799-
Hon. John Allen,     page 4 (~-364)



by Joe R. Greenhill,       Proceeding     of Water Law Conference,
University    df'TexBs,"Mau'25-26T.1956,          pages 146, et seq;;
H.&T.C; Railway Company-V.-East. ~_ '98 Tejc. 146, 81'~s:~.          279
    04)'66LRA .      ; 738   '107Air i?St:,Rep.      620, 4 Ahn: Cas. 827;
Fraziei    v. Browns, 12 &hi0 State%$           (1861);  Proration  'of
Ground Water by'Garland         Casebier     and J. H.'Starley;    1956
Water Law Conference       Proceedings,      pages 165, et seq.

       This same type of spacing          rules or regulations,    as a
valid    exercise     of the police     power, has been upheld as to
privately     owned oil and gas in place so as to assure all
owners thereof        an equal chance to recover      their   fair share
thereof,     under valid      rules and regulations    of the Railroad
Commission.        Brown v. Humble, Oil & Refining       Company, 126
Tex. 296, 83,S.W.2d          gjb (1935)    "Ground Water Rights and
Regulation;"       by'W. L; Matthews: 'Proceedings       of, Water Law
Conference,       University     of Texas, May 22-23,    1959, pages
g-10.

      Any rule or regulation      providing    for the spacing     of
water wells at reasonable      distances    from property    lines
would be subject   to judicial     review,    as to validity    and
reasonableness   pursuant to Subsection        F, of Article    7880-3~.

                               SUMMARY

             House Bill No. 128, which would delegate
             to "Panhandle Ground Water Conservation
             District      No. 3 South of the Canadian
             River'     rule-making   powers to space irri-
             gation     wells in relation   to surface    property
             lines    is a constitutional    exercise   of the
             police     power; the rules would be review-
             able by the courts       as to their validity
             and reasonableness.


                                Youflvery     truly,




                                  -1800-
.    I.




    HOG. John Allen,      page 5 (~-364)



    Prepared by:
    Roger Tyler'
    Assistant  Attorney     Qeneral

    APPROVED:

    OPINION COMMITTEE

    Kerns TaylGr, Chairman
    George Kelton,   Vice-Chairman
    James US. Swearingen
    Houghton Brotinlee
    Bill Corbusier
    Vince Taylor

    W. V. Geppert
    Staff Legal Assistant




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