                         February 28, 1989




Honorable Terra1 Smith              Opinion No.   JM-1024
Chairman
Natural Resources                   Re: Whether a commissioners
Texas House of Representatives      court may authorize      the
P. 0. Box 2910                      creation of a single-county
Austin, Texas 78769                 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 crea-
        tion 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 commis-
sioners 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, S 1, at 86.



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Honorable Terra1 Smith - Page 2   (JM-1024)




     Subsection B of section 3c, added by the 1949 act, pro-
vided in part:

          Districts1 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 Consti-
       tution of Texas, the administrative          and
       mocedural   orovisions  as now or hereafter
       contained in Chanter 25. Acts of the Reoular
       Session of the Thirtv-ninth     Leaislature   of
       the State of Te a . 1925. as amended.      shall
       @DDlV 1'n so faZ is annlicable    to such Dis-
       tricts,   but such Districts     shall not be
       organized for any purposes except those set
       forth in this Section     3c.    (Emphasis and
       footnote notation added.)

     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, 58 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, 5 18, at 89. . Section      19
provided  for the commissioners    court granting   such
petition if it appeared to it that the organization of th:
district was feasible and practicable and would benefit  the
included land or be Itapublic 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



    1. nDistrict** 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.l' Subsection A, section
3c.


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Honorable Terra1 Smith - Page 3     (JM-1024)




        which  included   land      in     two   or   more
        counties. . . .

          Said board shall consider such petitions
       in the same manner and purpose herein provid-
       ed for consideration   of petitions   by the
       commissioners' court for formation of dis-
       tricts in one county.

Acts 1925, 39th Leg., ch. 25, 5 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 conser-
vation 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.  Sub-
section C of'the 1949 act provided specifically for the con-
sideration of petitions for the formation of underground
water conservation districts  '*by a Commissioners Court or
the Board, as the case may be . . . .I' Acts 1949, 51st
      ch. 306, g 1, at 561.    &S Attorney General Opinion
t%J     (1950).

     In 1971, the provisions of the 1925 and 1945 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.    m   Water Code 5 1.001:
Acts 1971, 62d beg., ch. 58, 5 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 sub-
        chapter, the provisions in Chapter 51 of this
        code for creating water control and improve-
        ment districts apply to the creation of un-
        derground water conservation districts to the
        extent that those provisions may be made ap-
        plicable.

(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




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                  .
Honorable Terra1 Smith - Page 4   (JM-1024)




single county, and the Texas Water Rights Commission2 juris-
diction over the creation of a district encompassing   terri-
tory in two or more counties.    &.g 09 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 commis-
sioners court or the Texas Water Rights Commission.      See
1971 Water Code 8 52.023 and 852.025 . 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.

     However, in 1973, the legislature amended chapter 52 to
delete all references to the commissioners court's jurisdic-
tion over the creation of underground    water conservation
districts.  Acts 1973, 63d Leg., ch. 598, §S 1-5, at 1641.
Section 52.022 was not amended at that time and continued to
provide that "[elxcept as otherwise provided by this sub-
chapter, 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.qq
But sections 52.023 and 52.025 were amended as follows    in
pertinent pa*:

           Section 52.023(a)

        He&her Qhe commission    aer-a--eemmissieners
        emu* may R& 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

            (a)   If the eeaaaaissieacrs-eea*--Ed--ale
        commission finds that the district is feasi-
        ble and practicable,   that it would be a
        benefit to land in the district, and that it
        would be a public benefit or utility,      the




   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, 5 9, at 585.



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        K+
I
             Honorable Terra1 Smith - Page 5        (JM-1024)

i




                     eeauaissieaers-eeur~-Ed--~ha commission shall
                     make these findings and grant the petition.

                         (b)  If the eeaaaaissieaars-eeurh--or--the
                     commission finds that the district is feasi-
                     ble 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 eemmissieaers
                     eeurt-or-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 VV[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 con-
             servation districts. Water Code 5 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 Ri hts Commission or its
             successor the Texas Water Commission. 1

                  A 1985 act substantially amended chapter     52.   Acts
             1985, 69th Leg., ch. 133, 59 l-6, at 617. However, we find
             nothing in that act reinstating the authority of the commis-
             sioners court with respect to the creation of underground



                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 beg., ch. 870, 5 9, at 2207.


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Honorable Terra1 Smith - Page 6    (JM-1024)




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
or 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   cou*,   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.

     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 conser-
        vation 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

MARYKELLER
First Assistant Attorney General

Lou MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STBAKLBY
Special Assistant Attorney General

RICK GILPIN
Chairman, opinion Committee

Prepared by William Walker
Assistant Attorney General




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