
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN





NO. 03-97-00736-CV





Southwest Travis County Water District, Appellant



v.



City of Austin, Appellee





FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT

NO. 96-13123, HONORABLE F. SCOTT McCOWN, JUDGE PRESIDING





	Southwest Travis County Water District (the "District") appeals from a judgment
holding unconstitutional its constitutive statute in a declaratory judgment action brought by the
City of Austin (the "City").  We will affirm the judgment.

THE CONTROVERSY

	The statute in controversy originated in the legislature as House Bill 3193 ("H.B.
3193").  See Act of May 26, 1995, 74th Leg., R.S., ch. 844, 1995 Tex. Gen. Laws 4243.  The
enactment creates the District, "a governmental agency and a body politic and corporate,"
pursuant to a legislative finding that the District "is essential to accomplish the purposes of
Section 59, Article XVI," of the Texas Constitution. (1)  § 1.01.  The 4,661 acres enclosed by the
District boundaries constitute an "island" surrounded entirely by land within the City's
extraterritorial jurisdiction. (2)  Four municipal utility districts ("MUDs") operate within the District
boundaries.
	The powers, rights, duties, and functions delegated to the District in H.B. 3193 are
exercised by a board of nine directors (appointed by the governor) acting through a general
manager as the chief executive officer of the District.  §§ 2.01, .09.  The District, subject to
certain restrictions, may itself acquire, construct, and operate facilities for water, wastewater,
drainage control, and disposal services; the District may store and sell water and contract to
receive, treat, and dispose of water, wastewater, drainage, and wastes.  §§ 3.08, .12-.13.
	The District is also given the power to regulate within its boundaries.  As needed,
the District may devise comprehensive water, wastewater, and drainage-control plans; the plans
must be consistent with water-quality standards adopted by the Texas Natural Resource
Conservation Commission and are subject to certain restrictions. § 3.08.  The District may by rule
regulate "septic tanks to prevent water pollution or to protect the public health."  § 3.09.  With
certain limitations, the District is vested with the power to regulate subdivisions within the
District.  The power is described as an

exclusive power and jurisdiction, superseding the power and jurisdiction of any
other local government, to approve a plat or replat required of a tract of land
located within the district[;]


and such a plat or replat may not be filed with the county clerk until approved by the District and
the county.  § 3.10(a) (emphasis added).  Nevertheless, the District may not regulate

(1)	the use of any building or property for business, industrial, residential, or
other purposes;

(2)	the size, bulk, height, location, or number of buildings and other structures
that may be constructed or the ratio of building area to land area;

(3)	the number of residential units that may be built; or

(4)	the size of yards, courts, other open areas, or the impervious cover that may
be constructed on a tract of land.


§ 3.10(b).
	Concerning MUDs located within District boundaries, the statute declares that
creation of these MUDs "shall be regulated only by the" Texas Natural Resource Conservation
Commission; and, "[t]he consent of the district or any local government or other political
subdivision in the state is not required to create a municipal utility in the district."  § 3.11
(emphasis added).  Nevertheless, the District is vested with a measure of regulatory power over
a MUD located within District boundaries, as follows:

The district has exclusive authority to enforce, amend, or terminate the provisions
of any agreement between or that applies to a municipal utility district located
within the district and any local government or other political subdivision in the
state relating to:

(1)	land use or site plans;

(2)	restrictive covenants;

(3)	the provision of drainage and solid waste disposal services;

(4)	the regulation of septic tanks;

(5)	the control and abatement of water pollution;

(6)	the prohibition of pollution and policing of any source of water supply; or 

(7)	the protection and policing of watersheds within the district.


§ 3.11(b) (emphasis added).  The foregoing authority is said to supersede "the authority of any
local government or other political subdivision in the state regarding the matters" stated, "other
than the authority of a county to enforce, amend, or terminate an agreement in the public rights-of-way."  § 3.11(c).  Finally, as to MUDs within the District, H.B. 3193 declares void certain
conditions or requirements imposed by a local government or other political subdivision if such
conditions or requirements adversely affect matters upon which the MUDs have issued bonds. 
§ 3.11(d).
	While H.B. 3193 contains several other provisions pertaining to the operation of
the District, the foregoing are sufficient to indicate the delegation of important regulatory powers
to the District that abrogate or supersede like statutory powers delegated to the City as a home-rule city.
	The trial court, in holding H.B. 3193 unconstitutional, was required to construe
and apply the following constitutional provisions:

The Legislature shall not, except as otherwise provided in the Constitution, pass
any local or special law . . . regulating the affairs of . . . cities, towns, wards, or
school districts; . . . vacating . . . roads, town plats streets or alleys; relating to
cemeteries, grave-yards or public grounds not of the State; . . . and in all other
cases where a general law can be made applicable, no local or special law shall be
enacted.


Tex. Const. art. III, § 56.

Cities having more than five thousand (5000) inhabitants may . . . adopt or amend
their charters . . . and no charter or any ordinance passed under said charter shall
contain any provision inconsistent with the Constitution of the State, or of the
general laws enacted by the Legislature of this State.


Tex. Const. art. XI, § 5. (3)

(a)	The conservation and development of all of the natural resources of this State,
including the control, storing, preservation and distribution of its storm and
flood waters, the waters of its rivers and streams, for irrigation, powers and
all other useful purposes . . . , and the preservation and conservation of all
such natural resources of the State are each and all hereby declared public
rights and duties; and the Legislature shall pass all such laws as may be
appropriate thereto; 

(b)	There may be created within the State of Texas, or the State may be divided
into, such number of conservation and reclamation districts as may be
determined to be essential to the accomplishment of the purposes of this
amendment to the constitution, which districts shall be governmental agencies
and bodies politic and corporate with such powers of government and with the
authority to exercise such rights, privileges and functions concerning the
subject matter of this amendment as may be conferred by law. . . .

	. . .

(e)	Each special law creating a conservation and reclamation district shall comply
with the provision of the general laws then in effect relating to consent by
political subdivisions to the creation of conservation and reclamation districts
and to the inclusion of land with the district.


Tex. Const. art. XVI, § 59.
	Contending that a proper construction of the foregoing constitutional provisions
entitled it to relief, the City sued the District for a declaratory judgment that H.B. 3193 is
unconstitutional.  Following a bench trial, the trial court struck down H.B. 3193 as
unconstitutional on grounds set forth in findings of fact and conclusions of law.  In our view, the
District's appeal raises the following ultimate issues:

1.	Is H.B. 3193 valid as a general law as opposed to a local or special law
condemned by Article III, section 56 of the constitution, orchestrated with
article XI, section five of that instrument?

2.	If H.B. 3193 is a local or special law, is it nevertheless constitutional because
authorized by Article XVI, section 59 of the constitution?

3.	If parts of H.B. 3193 are unconstitutional, does the severability provision of
section 7.04 require severance and continued enforcement of the valid parts?


	We may state initially that our review is based upon the undisputed facts and the
following precepts.  We presume that H.B. 3193 is constitutional and enacted based upon any
possible factual basis that will sustain its constitutionality.  See Texas Workers' Compensation
Comm'n v. Garcia, 893 S.W.2d 504, 520 (Tex. 1995).  We presume the legislature "understands
and correctly appreciates the needs of its own people, that its laws are directed to problems made
manifest by experience, and that its discriminations are based upon adequate grounds."  Texas
Nat'l Armory Bd. v. McCraw, 126 S.W.2d 627, 634 (Tex. 1939).  We must give a reasonable
construction to any relevant constitutional provision and may not hold H.B. 3193 void unless it
clearly appears to be in conflict with the constitution.  Neal v. Sheppard, 209 S.W.2d 388, 389
(Tex. Civ. App.--Texarkana 1948, writ ref'd).  Recourse to the whole of the constitution is
required to ascertain the true meaning of a particular provision, and no part of the constitution
should be treated as superfluous, meaningless, or inoperative.  Purcell v. Lindsey, 314 S.W.2d
283, 284 (Tex. 1958).

WHETHER H.B. 3193 IS A GENERAL LAW

	There can be no doubt that the legislature intended H.B. 3193 to operate
exclusively within the extraterritorial jurisdiction of a single Texas municipality--that is the effect
of the legal description fixing the District boundaries.  See § 6.01.  Is the statute saved from local-law status because "it operates upon a subject that the people at large are interested in[?]"  Lower
Colorado River Auth. v. McCraw, 83 S.W.2d 629, 636 (Tex. 1935); see City of Irving v.
Dallas/Ft. Worth Int'l Airport Bd., 894 S.W.2d 456, 466 (Tex. App.--Fort Worth 1995, writ
denied).  The District advances several reasons why that is the case.
	The first two reasons pertain to water quality.  The District suggests that its
operations encompass and affect an economically and scientifically important natural resource that
benefits the State as a whole, namely the control and abatement of water pollution within an area
covering the Barton Springs segment of the Edwards Aquifer; and a statewide interest also exists
in that regard because the affected segment is vital to the survival of the Barton Springs
salamander.  (H.B. 3193 specifically authorizes the District to "provide for the protection and
management of" such endangered species.  § 3.01(c)(4)).  The supreme court has distinguished
McCraw and City of Irving on the ground that the statutes there in question affected a substantial
class of persons over a broad region of the state as opposed to a statute that affected only a single
MUD.  See Maple Run at Austin M.U.D. v. Monaghan, 931 S.W.2d 941, 947-48 (Tex. 1996). 
It may not reasonably be concluded that H.B. 3193 affects, with respect to the water-quality
factor, a substantial class of persons over a broad region of the state as opposed to the single
District created by H.B. 3193.  See, e.g., Vincent v. State, 235 S.W.2d 1084, 1086 (Tex.
Comm'n App. 1921, judgm't adopted); City of Austin v. City of Cedar Park, 953 S.W.2d 424,
435 (Tex. App.--Austin 1997, no writ).
	The District suggests that the state as a whole has an interest in preserving the
security for the publicly held debt of the four MUDs, which amounts in the aggregate to $40
million.  The District reasons that the City's past restriction of development in the area has been
inconsistent and so severe as to reduce land valuations below what is necessary to obtain tax
revenue sufficient to discharge the indebtedness at a reasonable tax rate; and, the City's conduct
in that regard is contrary to the planned development and expected revenues upon which the bonds
were approved by a state agency.  We believe any statewide interest in the financial integrity of
the four particular MUDs is as attenuated as the statewide interest in the financial condition
necessary to conserve natural resources mentioned in Maple Run.  See Maple Run, 931 S.W.2d
at 946 n.2.
	The District contends that the State as a whole has an interest in reasonable
"growth" within District boundaries because the State has expended more than $31 million in
building roads within the District, and this sum will have been wasted "if the City is allowed to
bring growth in the area to a standstill."  We disagree with the theory.  The purposes of State
highways are transportation and travel between points on the State system of highways; and while
those purposes are of statewide interest, they do not encompass the development of areas through
which the highways pass.  See State of Tex. v. City of Austin, 331 S.W.2d 737, 741 (Tex. 1960);
Mosel v. Real, 49 S.W.2d 475, 476 (Tex. Civ. App.--San Antonio 1932, writ ref'd).
	Finally, the District argues that the legislature was justified in taking into account
the City's inconsistent, ever-changing, and discriminatory regulation limiting development in the
area covered by the District--for example, the applicable City ordinance requires that storm-water
runoff have a lower nitrogen concentration than does bottled water sold in stores and a lower
phosphorus concentration than the City's own tap water.  Moreover, the District contends, the
ordinance is discriminatory in that it applies to a part only of the aquifer-recharge zone lying
within the City's jurisdiction.  We believe these are simply aspects of the District's more general
contention that the legislature was justified in taking into account the years of intractable litigation
that has plagued the question of development in the affected area. (4) See City of Irving, 894 S.W.2d
at 466-67 (citing legislative history of statute that "attempts to avoid repetition of the destructive
interlocal conflict which has plagued DFW Airport and its neighboring municipalities, without the
necessity for additional legislation in the future after another such conflict has escalated to a point
requiring legislative intervention.").  We believe the District's contention reverses the reasoning
involved.  The "interlocal conflict" mentioned in City of Irving was of statewide interest because
the operation of the airport itself, projected to handle increases in traffic to more than one hundred
million passengers annually, was of statewide interest.  See id. at 459-60.  The existence of the
"interlocal conflict" did not itself create the necessary statewide interest in the subject matter of
the conflict.
	The ultimate question is whether the legislature had a reasonable basis for singling
out the District for special treatment.  See Maple Run, 931 S.W.2d at 948.  None of the reasons
suggested by the District amount in our view to such a basis, considered singly or in the
aggregate, for the reasons stated.  We hold accordingly that H.B. 3193 is not a general law.
	Anticipating our reliance on the Maple Run decision, the District argues that the
decision does not apply to H.B. 3193 because the statute involved in Maple Run did not have a
conservation purpose, it pertained to the dissolution rather than the creation of a governmental
body, and the MUD in that case did not attempt to defend the constitutionality of its constitutive
statute.  We assume these distinctions would preclude an application of the holding in Maple Run 
under the doctrine of stare decisis.  They do not, however, preclude application of the principles
and reasoning discussed by the supreme court in Maple Run, an opinion that was obviously
intended to be an authoritative and instructive summary of the applicable judicial decisions and
principles.

WHETHER H.B. 3193 IS A PERMISSIBLE LOCAL LAW

UNDER THE CONSTITUTION

	As did the MUD in Maple Run, the District contends alternatively that H.B. 3193
is an authorized local law under article XVI, section 59 of the constitution.  See Maple Run, 931
S.W.2d at 948-49.  The constitutional provision authorizes the creation of conservation and
reclamation districts by local law.  See id. at 948.
	Subsection (e) of article XVI, section 59, imposes an important qualification upon
the legislative power to create such districts by local law, as follows:

Each special law creating a conservation and reclamation district shall comply with
the provisions of the general laws then in effect relating to consent by political
subdivisions to the creation of conservation and reclamation districts and to the
inclusion of land within the district.

Tex. Const. art. XVI, § 59(e) (emphasis added).  In Beckendorff v. Harris-Galveston Coastal
Subsidence Dist., 558 S.W.2d 75, 79 (Tex. Civ. App.--Houston [14th Dist.] 1977, writ ref'd
n.r.e.), the court held that the foregoing constitutional provision did not require that the local law
itself incorporate the consent requirement mentioned; rather, the provision simply required
compliance with "the general laws."  Id.  The supreme court, in refusing writ of error, no
reversible error, expressly approved this construction.  See Beckendorff v. Harris-Galveston
Coastal Subsidence Dist., 563 S.W.2d 239, 240 (Tex. 1978).
	It is undisputed that the City has not consented to the creation of the District within
its extraterritorial jurisdiction.  The issue reduces to whether "the general laws" required such
consent.  The District contends Beckendorff settled that issue with the result that no general law
required the City's consent.
	The category of general laws includes the following provision found in the Local
Government Code:

Reduction of Extraterritorial Jurisdiction

	The extraterritorial jurisdiction of a municipality may not be reduced unless
the governing body of the municipality gives its written consent by ordinance or
resolution, except in cases [not applicable here].


Tex. Loc. Gov't Code Ann. § 42.023 (West 1999).  We hold this statute is applicable to the
present controversy and required the City's consent as a matter of general law. (5)
	Nothing in the Beckendorff opinion is contrary to our holding.  There, the
appellants argued that two specific provisions of the Texas Water Code were general-law
provisions requiring consent by certain political subdivisions to the creation of the Harris-Galveston Coastal Subsidence District and the inclusion of land therein.  Because these two
provisions of the Texas Water Code were found only in a chapter of that code not applicable to
the case, and the only applicable chapter imposed no consent requirement, the court held
municipal consent was not required.  See Beckendorff, 558 S.W.2d at 79.  The Beckendorff
opinion cannot reasonably be interpreted to mean that no statute requiring such consent exists in
"the general laws"; rather, the opinion means simply that the two specific provisions of the Texas
Water Code, urged by appellants in that case, did not require such consent because those
particular provisions were not applicable to the kind of district there in litigation.
	We therefore hold that H.B. 3193 is not constitutional as a local law authorized by
article XVI, section 59 of the constitution.
	Because we hold the trial court did not err in holding H.B. 3193 unconstitutional
on the grounds set out above and under the undisputed facts, we need not address other
contentions urged by the District as grounds for holding the trial court erred with regard to the
constitutionality of the statute.  And because the statute is unconstitutional in its creation of the
District, for the reasons given, the trial court was not called upon to sever one part of the statute
from another.
	The District contends it is entitled to attorneys fees, based on stipulated facts, if we
reverse the trial-court judgment.  Because we affirm the judgment in its entirety, we need not
decide the assignment of error.
	We affirm the trial-court judgment.


  
					John E. Powers, Justice
Before Justices Kidd, B. A. Smith and Powers
Affirmed
Filed:   January 6, 2000
Do Not Publish  Released for publication February 10, 2000.  Tex. R. App. P. 47.3(c).














*	Before John E. Powers, Senior Justice (retired), Third Court of Appeals, sitting by assignment. 
See Tex. Gov't Code Ann. § 74.003(b) (West 1998).
1.   The quotations, paraphrases, and attendant section numbers pertaining to H.B. 3193 are
taken from the codified version of the statute.  See Tex. Water Aux. Laws, Tables of Special
Water Laws, Table III, p. 77 (West 1999).  The relevant provisions of article XVI, section 59,
of the Texas Constitution are discussed afterward in the opinion.
2.   The "extraterritorial jurisdiction" of a municipality with a population over 100,000
individuals is the unincorporated area contiguous to meaningful boundaries and within five miles
thereof.  See Tex. Loc. Gov't Code Ann. § 42.01 (West 1999).  The City falls within this
population category.
3.   The City, as a home-rule city, draws governing power from this provision of the
constitution, and it is necessary to look to the acts of the legislature not for grants of power to
such cities but only for limitations on their powers, whether substantive or procedural.  See Lower
Colorado River Auth. v. City of San Marcos, 523 S.W.2d 641, 643-44 (Tex. 1975); see also Tex.
Loc. Gov't Code Ann. §§ 51.001-.079 (West 1999).
4.   See Quick v. City of Austin, 41 Tex. Sup. Ct. J. 751 (May 8, 1998), and reh'g granted,
42 Tex. Sup. Ct. J. 1217 (Sept. 30, 1999), 1998 Tex. LEXIS 82 and 1999 Tex. LEXIS 110.
5.   We need not consider whether section 42.042 of the Local Government Code is also a
general-law statute applicable to the controversy.  See Tex. Loc. Gov't Code Ann. § 42.042 (West
1999).

the Harris-Galv