                              ATTORNEY GENERAL OF TEXAS
                                         GREG       ABBOTT


                                                April 7, 2014



The Honorable Craig Estes                            Opinion No. GA-l 049
Chair, Committee on Agriculture,
    Rural Affairs & Homeland Security                Re: Whether the Red River Authority must
Texas Senate                                         obtain county approval for any purchase of
Post Office Box 12068                                groundwater in a county without a
Austin, Texas 78711                                  groundwater conservation district
                                                     (RQ-1155-GA)

Dear Senator Estes:

        You ask whether the Red River Authority (the "RRA") must obtain county approval for
the purchase of groundwater in a county without a groundwater conservation district. 1 You
explain that Senate Bill 281 (the "Bill"), enacted during the Eighty-third Legislative Session,
"allows the RRA to purchase groundwater rights" with commissioners court approval. Request
Letter at 2; see also Act of May 26, 2013, 83d Leg., R.S., ch. 1156, 2013 Tex. Gen. Laws 2879,
2879-80. The Bill provides that the RRA "may purchase groundwater rights in a county in the
Authority's territory only if ... in the case where a county is not in the jurisdiction of a
groundwater conservation district, the commissioners court of the county approves the purchase
of groundwater rights[.]" Act of May 26, 2013, 83d Leg., R.S., ch. 1156, § 3, 2013 Tex. Gen.
Laws 2879, 2879. You explain that the RRA "purchase[s] potable groundwater from the city of
Vernon" to supply domestic water to various water systems in Wilbarger County (the "County").
Request Letter at 2. A question has arisen as to what constitutes the "purchase of groundwater
rights" so as to require the approval of the commissioners court. The County argues that, under
the Bill, "any existing development, use or purchase of underground water in Wilbarger County
must be approved by the Commissioners Court." Id The RRA asserts the contrary position that
the Bill "applies to acquisition of groundwater rights," not all purchases of groundwater. !d. We
understand your question to be whether the phrase "purchase of groundwater rights" as used in
the Bill encompasses the purchase of groundwater that has already been removed from the
ground. 2


        1
        Letter from Honorable Craig Estes, Chair, Agric., Rural Affairs & Homeland Sec. Comm., to Honorable
Greg Abbott, Tex. Att'y Gen. at 2 (Oct. 10, 2013), http://www.texasattomeygeneral.gov/opin ("Request Letter").

        2
          The Bill became effective on September 1, 2013. Act of May 26,2013, 83d Leg., R.S., ch. 1156, § 5,
2013 Tex. Gen. Laws 2879, 2880. "A statute is presumed to be prospective in its operation unless expressly made
                                                                                                 (continued ... )
The Honorable Craig Estes - Page 2                     (GA-1049)




         The Bill does not define the term "groundwater rights." Generally, "[t]he legislature
recognizes that a landowner owns the groundwater below the surface of the landowner's land as
real property." TEX. WATER CoDE ANN. § 36.002(a) (West Supp. 2013); see also Edwards
Aquifer Auth. v. Day, 369 S.W.3d 814, 832 (Tex. 2012) (concluding that ownership of
groundwater also encompasses groundwater in place); City of Del Rio v. Clayton Sam Colt
Hamilton Trust, 269 S.W.3d 613, 617 (Tex. App.-San Antonio 2008, pet. denied) (noting that
groundwater may be bartered and sold just as any other kind of property). Such "groundwater
ownership and rights ... entitle the landowner, including a landowner's lessees, heirs, or assigns,
to drill for and produce the groundwater below the surface of real property" subject to certain
regulations and restrictions. TEX. WATER CODE ANN. § 36.002(b)(l) (West Supp. 2013). Thus,
the term "groundwater rights" as used in the Bill includes the right to drill and produce
groundwater below the surface of the land. 3

       We are urged to treat the purchase of groundwater that has already been removed from
the ground as being synonymous with the purchase of "groundwater rights" on the theory that
the acquisition of groundwater encompasses certain associated rights that enable the use of the
water. The plain language of the Bill, however, seems to distinguish between groundwater as a
commodity and groundwater as a property right. In addition to authorizing the RRA' s purchase
of groundwater rights, the Bill amended section 25 of the RRA's enabling legislation as follows:

                  Sec. 25. Nothing in this Act shall be construed as authorizing the
                  Authority to acquire or [,] regulate [or eoetrol in ~· way]
                  underground water or underground water rights by condemnation
                  or [parehase or otherwise or to de•1elop,] regulate [or eontrol] the
                  use of underground water resources in any manner [. This aet is
                  intended to govern and shall be eonstr1:1ed to govern and apply to
                  s1:1rfaee water only].

Act of May 26, 2013, 83d Leg., R.S., ch. 1156, § 4, 2013 Tex. Gen. Laws 2879, 2879-80
(emphasis added). The Legislature left intact the phrase "underground water or underground
water rights," suggesting that the two are different. Indeed, numerous provisions in state law
distinguish between "water" and "water rights." See, e.g., TEX. WATER CODE ANN. §§ 5.013
(West Supp. 2013) (establishing the jurisdiction of the Texas Commission on Environmental

retroactive." TEX. Gov'T CODE ANN. § 311.022 (West 2013). Nothing in the language of the Bill indicates an
intent to apply its provisions retroactively. Thus, a contract for the purchase of groundwater entered into before
September 1, 2013, would not be affected by the Bill.
         3
          0ur discussion of the tenn "groundwater rights" in this opinion applies only to the Legislature's use of that
tenn in the Bill and should not be construed as expressing any opinion on the scope or extent of a private
landowner's property rights in groundwater under Texas law. See Edwards Aquifer Auth., 369 S.W.3d at 832
(discussing private ownership of groundwater as a property right).
The Honorable Craig Estes - Page 3                   (GA-1049)



Quality over "water and water rights"); 49.2261(1) (West 2008) (generally authorizing all water
districts to "purchase ... water or water rights under an agreement"); TEX. SPEC. DIST. CODE
ANN. §§ 8813.114(c)(l), 8815.112(c)(1), 8878.113(c)(l) (West 2013) (authorizing several water
authorities, through identical language, to "contract for ... the purchase, sale or lease of water or
water rights").

        In light of this express distinction in the RRA's enabling legislation and similar
distinctions found throughout other state statutes, we cannot conclude that the purchase of
groundwater that has already been removed from the ground is indistinguishable from the
purchase of "groundwater rights" as that phrase is used in the Bill. Nor can we ignore the plain
language in the Bill making the purchase only of "groundwater rights," and not "groundwater,"
subject to commissioners court approval. See FM Props. Operating Co. v. City of Austin, 22
S. W.3d 868, 885 (Tex. 2000) (relying on principle of statutory construction that the Legislature
knows how to enact laws effectuating its intent). Thus, not every purchase of groundwater by
the RRA will automatically constitute a purchase of groundwater rights requiring commissioners
court approval. That said, the Legislature has not articulated what more the term "groundwater
rights" as used in the Bill may encompass beyond the right to drill for and produce groundwater.
See TEX. WATER CODE ANN.§ 36.002(a), (b)(l) (West Supp. 2013). Accordingly, a court would
likely conclude that the RRA's purchase of groundwater as a commodity in a county without a
groundwater conservation district requires commissioners court approval if the purchase entitles
the RRA to drill for and produce the groundwater below the surface of the land. Whether a
contract for the purchase of groundwater that does not entitle the RRA to drill for and produce
groundwater nevertheless conveys a "groundwater right" such that it must be approved by the
commissioners court in a county without a groundwater conservation district is a question that
can only be answered by reference to the particular contract at issue. Such questions are not the
appropriate subject of an attorney general opinion. 4




         4
          See Tex. Att'y Gen. Op. No. GA-0876 (2011) at 1 (noting that questions of fact are not resolved in the
opinion process); see also Tex. Att'y Gen. Op. No. GA-0690 (2009) at 3-4 (stating that this office does not construe
contracts).
The Honorable Craig Estes - Page 4          (GA-1049)



                                     SUMMARY

                      Whether a contract for the purchase of groundwater that
              does not entitle the Red River Authority to drill for and produce
              groundwater nevertheless conveys a "groundwater right" such that
              it must be approved by the commissioners court in a county
              without a groundwater conservation district is a question that can
              only be answered by reference to the particular contract at issue.
              Such questions are not the appropriate subject of an attorney
              general opinion.




                                                E G ABBOTT
                                            Attorney General of Texas


DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

Becky P. Casares
Assistant Attorney General, Opinion Committee
