Hon. T. E. Knight               Opinion No. O-7130
~County Attorney                Ret     Answering certain         questions    pertain-
Stonewall   County              ing to a petition          and hearing      on the
 Aspermont,  Texas              organization        of a water control        and im-
                                provement      district     within    the terms and
                                provisions       of Section      59 of Article     1.6 of
                                the.Constitution          of Texas, as controlled
                                by Statute       (Article    7880-1,     et seq.,
Dear Sir:                       V.A.C.S.)
             We have considered        your letter    of June 19, 1946, re-
questing    an opinion     from this department      and accompanied     by a
letter   dated June 11, 1946 addressed           to you from H. H. Shadle,
County Judge of Stonewall          County, presenting     nine questions
which .you desire     this    department   to answer.
           The following         questions     relative  to a proposed water
control  and improvement         district,     territory   of which embraces
the city of Aspermont,          are asked     by the County Judge:
            “Question     1. Would it not           have been proper that
      the petition     have been Initiated           outside   of the Muni-
      cipal  corporation,    in the major           portion,of   the area.
               “Question     2.    Article     7880-115 provides           that in
      a case of this kind that separate                  elections      be had in
      the various        subdivisions,      within     and without        the muni-
      cipal     corporation       or different      portions      of two coun-
      ties     or more than two or segregated               portions       of the
      district.        Would It not also be proper that                 separate
      petitions      be had or that the petition               be considered
      on separate        hasis   as regards      different       sections.
             Art. 7880-10 provides       that a majority    in number
      of the landholders     representing     a majority    in value of
      the lands shall    sign the petition.        Further    in the ar-
      ticle   it says if more than 50 landholders          own land,
      f-ifty  signers  who are land holders      is sufficient.
             “Question  3. Does the provision     in the               above with
      reference    to 50 landowners dispense   with the                provision
      for a majority    in value of the lands?
Hon. T. E. Knight,        page   2   (O-7130)


              “Question. 4.    I presume that landowners           or
      holders     are legal   peti,tioners      whether they live in
      the district      or not but that a residence          qualifica-
      tion is required      togeth,er      with the other qualifica-
      tions    before   one can vote.         Is that correct?
              tlQuestion     5.    Art 0 7880-14 provides      that when a
      petition     is filed      the County Judge will or shall           is-
      sue an order,        setting     a date for hearing      by the Com-
      missioners       Court.      Is the County Judge within         his
      rights     to deny a hearing        if he in his legal       judgment
      is satisfied       that the petition       is insufficient?
           ttQuestion   6.   If husband and wife own land as
      community property     and both sign the petition,    or if
      in a partnersh,ip    if several  sign as part owners,    can
      all be counted as numeri,cal     strength on such petiti,on?
            “Question  7. Would a project    under this heading,
      which Is incapable    of being used for irrigation   be-
      cause of the physical    lay of the land or lack of water,
      be considered   as coming wi.thin the meaning of this law?
              “Question    8.     Art- 7880-19 refers     to a pu.blfc
      benefit    or utility.         What is the meaning of this?      Does
      it mean the entire          public  in the district    or does it
      mean only a small          portion  or otherwise?
            “Quest ion 9 o Defin.e the meaning of the phrase
      ‘Benefit  to the ‘land included   therein0     as used in Arti-
      cle 7880-19 and applying     to such districtsOl’
              The answers to the above questions             are to be found un-
der Chapter      3A Tit1.e 128 of Vernonus Annotated              Civil  Statutes,
relating     to wa e er control.  and i,mprovement districts,           Article
7880-l et seqO .It would unduly lengthen                this   opinion   to set
forth    all of the statutes      which have a bearing          on the questions
presented.       You are respectfully       referred      to the above title       and
chapter     which includes     the Articles      hereinafter      set forth.
              Article    7880-10,     VOA,C.SO) provides:
              “Petition   for the organization            of a     water control
       and improvement       dfs,txict     shall    be sign.ed     by a majority
       in number of the holders            of ti.tle   to the      lands therein,
       and the owners of a majorl.ty             in value of       the lands
       therein,     as shown by the co’unr;y tax rolls,               provided,   if
       the number of such land owners therein                 is     more than
       fifty,    such petfti.on      shall. be sufficient          if same is
Hon.   T. E, Knight,       page    3    (O-7130)


       signed     by fifty    land owners.   Such petition               may be
       signed     and filed     in two or more copies .‘I
                Article   7880-U       of said     statute   provides:
                “The petition        shall designate        the name of the
       district,       the area and boundaries           thereof,     the pro-
       vision of the Constitution under which same is to be
       organized, the purpose or purposes                   of same.      Said
       petition       shall    state   the general      nature    of the work
       to be done, the necessity            thereof,        the feasi0ility
       thereof,      with reasonable       detail     and definiteness         in
       order that the court or board passing                    on same may
       understand        therefrom     the purpose,      utility,     feasi-
       bility     and need or necessity           therefor.       Tne petition
       shall     state     the estimated    cost of the project             as
       then estimated          by those filing       such petition        from
       such information           as they may have at that time.”
               Article     7880-12 provides        that said petition       shall   be
filed    in the office        of the County Clerk of the county in which
the district       is situated,       and Article      7880-14 of such statute
provides     that when a petition          is filed      for the organization       of
a district      within     one county,     the County Judge shall make an
order setting        the date of hearing         thereof     by the County Commis-
sioners    Court,      endorsing    same on said petition          or paper attached
thereto,     following      wh,ich, the County Clerk shall           thereupon    is-
sue a notice       for such hearing.          Said petition       may be considered
at a regular       or special      session    of said court.
           The answers to your first      six questions     are to be found
in the foregoing   quoted statutes.     The proposed     district     with
which we are concerned    and as stated     in your request,      covers   an
area of two square miles which is within         the corporate     limits   of
the city of Qspermont,    a municipal   corporation,     and approximately
120 square miles outside    the corporate     limits  of Aspermont.
            Answering your questions          1 and 2, the above statutes
do not require    that   separate   petitions     be had or initiated,    one
within the corporate      limits   of the City of Aspermont or the
other within   the territory      outside     in Stonewall County.
           In answer to your question                   number 3, where the number
 of land owners holding     title  to the             land within  the defined    lim-
,its is more than fifty,      such petition              shall be sufficient   if
 signed by such fifty    land owners.
             Answering    your question     number 4, in holding   the elec-
tions    as provided   in Article    7880-115 of such statutes,      only
qualified    property   taxpaying    voters   can participate   in such elec-
tions.
Hon. T. E. Knight 9 page          4   (0,=7X30)


              In answer to question   numbe:r 5, the              County Judge has
no discretion     to deny hearin,g  if the petition               meets the require-
ments of the statutes0
              Answering question   number 6, husband end wife holdFng
title  to land within    the defined   dl,st:rl,ct as community property
as well as members of a partnership,          may be qualified  to sign
the petition.

             In answer to your question      number 79 the statute     1,s
broad enough to Inclu.de pT,:rposes other than the use of water for
irrigation.      However, thfs fact may be developed      at the hearing
as directly    bearEn,g upon. whether   or not the formation     of such
districzt   would be of benefj,.t to t:h.e land jncluded   therein   01
whe,ther or not such district      1,s needed,.
            Your questi.ons        8 an,d 9 corI.cer,n and. relate         to   AAzl.cle
7880-19   of’ the statutes,        which Artk1.e     pro,vl.des:
              “If it shall      e.ppear on hearing        by the Commis-
      sioners’     Court that the orgaMzat1on              of a dlstr1ct         as
      prayed for is feasfble            and practica’ble,       that    it would
      be a benefit      to th.e l.aad .to be included           therein     and
      be a publ,lc benefft,           CP wtSlfty,    the Comdssioners          p
      Cowt sha.11, so find. and grant the petition.                     If the
      Court should f&d that s::ch proposed                 district       Is not
      feasible      or prac:ticabl.e,     would not be a public            bene-
      fit or utilfty,        I:P would not be a benefit             to the land
      to be included       therein,      or 1,s not needed,         the cou,rt
      shall    refuse   to grant .the petXti,on.”
             The foregofng       section    of the Act sets forth        in brief
language   ,the ffnd.fngs    of the Cou~rt: as developed         f:rom facts   at
the hear1n.g for granting         or ref~using to grant the petiticn.             In
weighing   the facts     presen.ted      at the hearl.ng,   the Court should
take into con,sideration        the pzbl1c ‘benefit       or u.tiltty    to the
dfstric,t  as a whole and not an,y sma.1.l. portfon,           thereof.      Your
ques.tion  number 8 is so answered.
              Answering questS,on number- 99 the phrase “benefit             to the
la,nd included     therein M 1s not defined       i,n the foregoing    section    or
elsewhere     in the Act,     Thi.s phrase    sh,ould be con&rued     wl,th the
purposes    for which the disU’l.ct      3,s sought to ‘be created      and ft
is apparent     that the Legislakre        antiended the Court to exercise
sound discretion,      En weighing   the fac,ts developed       at the heareng
to determine     whether   or n,ot a majority       of the l,and kcluded      with-
in the district      would be accord1,ngly       ennanced En value.
      I.

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    Hon. T. E. Knight,     page   5   (O-7130)


               We wish to thank      you for your letter       of July 19th
    furnishing  us additional     information     as requested..     We are
    not to be understood      as passlng    on the sufficiency      of the
    petition,  a copy of which accompanfed         your Letter,     as we have
    not been requested    to do so.
                                          Yours   very   truly
                                           iTTORNEY GEXERALOF TEXAS
                                              _
                                          I& /s/‘Wm.'J;  R; I&;~
                                          Wm. J0 R. King, Assistant
    APPROVEDAUG 1, 1946
    /s/ Carlos C. Ashley
    FIRST ASSISTANT
    ATTORNEYGENERAL
    APPROVED: OPINION COMMITTEE
    BY:       WJF, CHAIRMAN
    WmK:djmtwb
