                                    GENERALOF TEXAS
                             ATTORNEY
                                          GREG ABBOTT



                                              August 27,2010


The Honorable Patrick M. Rose                           Opinion No. GA-0795
Chair, Committee on Human Services
Texas House of Representatives                          Re: Jurisdiction over land that is annexed by two
Post Office Box 2910                                    separate special districts (RQ-0812-GA)
Austin, Texas 78768-2910

Dear Representative Rose:

       You ask about the jurisdiction of two water districts, each of which has the power of a
groundwater conservation district, over land annexed by both districts under the two separate
annexation procedures provided in chapter 36 of the Water Code.'

         Under two separate procedures described in chapter 36, a groundwater conservation district
may add territory to the district by annexation if requested to do so by landowners. One procedure,
authorized by section 36.321, permits annexation of land pursuant to a petition of the owner of that
land. See TEX.WATERCODEANN.5 36.321 (Vernon 2008). After hearing and considering the
petition, the district's board of directors may add the land described in the petition if it is
advantageous to the petitioner and the district. See id.5 36.323(a). A second procedure, authorized
by section 36.325, permits annexation of territory pursuant to a petition executed by landowners in
the territory, subject to approval at an election held for that purpose. See id. $5 36.325, ,328. Such
a petition "must be signed by: (1) a majority of the landowners in the territory; [or] (2) at least 50
landowners if the number of landowners is more than 50." Id. 5 36.325(b). After holding hearings
and finding that the addition would benefit the district and the territory, the district may add all or
part of the territory. See id $5 36.326, .327. However, "[alnnexation of the territory is not final
until ratified by a majority vote of the voters in the territory to be added." Id. 5 36.328(a).

        You state that the particular annexation giving rise to your inquiry involves territory in
eastern Caldwell County that was not, before the competing annexations, within the jurisdiction or
regulatory authority of any groundwater district. See Request Letter at 1. In October 2007,
landowners petitioned the Gonzalez County Underground Water Conservation District
("GCUWCD")2 to annex 77,440 acres in the unregulated territory contiguous to GCUWCD's


        'Request Letter at 1-2 (available at http://www.texasattorneygeneral.gov).

        'The GCUWCD is a groundwater conservation dishict created under the general laws pursuant to an order of
the Texas Commission on Environmental Quality. See Brief eom J.D. Head, Fritz, Byme, Head & Harrison, PLLC,
                                                                                                  (continued...)
The Honorable Patrick M. Rose           -   Page 2         (GA-0795)



boundariespursuant to Water Code section 36.325. See id In December 2007, the GCUWCD board
of directors approved the annexation and residents of the affected temtory approved the annexation
by an affirmative vote at a ratification election in May 2008. See id. In February and March
2008-after commencement of the GCUWCD annexation process but before the May 2008
ratification election-thirteen separate landowners presented individual petitions to the Plum Creek
Conservation District ("PCCD)3 requesting annexation of their respective properties-totaling
14,202 acres. No ratification election was statutorily required, and the PCCD board of directors
approved the thirteen petitions. Id. "The entirety of these 14,202 acres, newly annexed by petition
into the PCCD in FebruaryMarch 2008, was included in the 77,440 acres previously scheduled, and
subsequently approved, in the May 2008 [GCUWCD] confiation election." Id. Both GCUWCD
and PCCD now "claim . . . authority to regulate the properties for purposes of groundwater
conservation, and both districts intend to levy taxes on the property." Id.

        As a matter of general law, "two governmental entities may not exist at the same time over
the same temtory for the same purpose." Glasscock Underground Water Conservation Dist. v.
Pruit, 915 S.W.2d 577,584 (Tex. App.-El Paso 1996, no writ) (emphasis added). Because both
GCUWCD and the PCCD are chapter 36 districts, they operatefor the samepurpose and thus, the
14,202 acres at issue here may not, under the language of Pruit and in the absence of legislation to
the contrary, be included within the temtory of both districts. You ask that we determine which of
the two districts has jurisdiction over the dually-annexed land, i.e., the same 14,202 acres.

        Historically, in the absence of a controlling statutory scheme, the common-law first-in-time
rule governed competing claims to property. City ofRoanoke v. Town of Westlake, 111 S.W.3d 617,
630 (Tex. App.-Fort Worth 2003, pet. denied); see also State v. Baker, 40 S.W.2d 41,4243 (Tex.
1931) (applying first-in-time rule to two different types of school districts established over the same
territory). While not limited to cities, the rule was primarily utilized in the context of municipal
annexations. Under this rule, the first governmental entity to begin annexation procedures on
unclaimed territory obtained exclusive jurisdiction over that property. City of Cresson v. City of
Granbury,245 S.W.3d61,65 (Tex. App.-Fort Worth2008,pet. denied) (citing CityofSanAntonio
v. City ofBoerne, 111 S.W.3d 22,27 (Tex. 2003)). In the present situation, GCUWCD received an
annexation petition in October 2007, and in December 2007, it approved the petition and called an
election to ratify the annexation. See Request Letter at 1. PCCD received and approved annexation


         *(...continued)
Attorney for the GCUWCD at 2 (Aug. 26, 2009) [hereinafter GCUWCD Brief]. Thus, it has the powers of a
groundwater conservation district under chapter 36 of the Water Code. See id The GCUWCD originally included
eighty-five percent of the land in Gonzalez County, excluding land in the southeastern part of the county bordering
Lavaca and DeWitt Counties. See id

         'The PCCD was created by special legislation initially as a water control and improvement district and later
granted the powers of an underground water district under former chapter 52 of the Water Code. See Act of Apr. 17,
1957,55thLeg., R.S., ch. 126, 1957Tex. Gen.Laws267, as amendedby Act ofMay 3, 1973,63dLeg.,R.S., ch. 133,
1973 Tex. Gen. Laws 283; Act of May 27,1981,67th Leg., R.S., ch. 659,1981 Tex. Gen. Laws 2499; Act of May 20,
1989,71st Leg., R.S., ch. 952, 1989 Tex. Gen. Laws 4018. The PCCD covers parts of Caldwell and Hays Counties.
See Plum CreekConservationDistrict,PCCD History, available at http://www.pccd.orglabout.htm(lastvisitedAug. 23,
2010).
The Honorable Patrick M. Rose - Page 3                (GA-0795)



petitions covering a portion of the same territory in February and March of 2008. See id. at 2. Under
the first-in-time rule, GCUWCD would appear to have acquired exclusive jurisdiction over the
disputed territory for the purposes of annexation to the exclusion of PCCD.

          While it is possible that a court would apply the first-in-time rule, we cannot be certain that
it will. A court could read chapter 36 to address the competing claims to territory annexed under the
two statutory procedures at issue and conclude that to resort to the first-in-timerule is unwarranted.
See TEX.WATERCODEANN. 5 36.328(a) (Vernon 2008); see also City of Cresson, 245 S.W.3d at
67 (in the context of competing municipal claims to the same property, suggesting that the first-in-
time rule should be applied only as a "gapfiller" when the statutory scheme does not adequately
                                        -
address which citv is entitled to assert iurisdiction). Section 36.328, which applies to an annexation
petition filed under section 36.325, expressly provides that "[alnnexation of the territory is notjnal
                       - - vote of the voters in the territory to be added." TEX.WATERCODE
until ratified by a maioritv                                                                        ANN.
5 36.328(a) (Vernon 2008) (emphasis added). Because the annexationis not final until it is approved
by a vote at a ratification election held for that purpose, a district that annexes territory pursuant to
the section 36.325 procedure is arguably not entitled to assertjurisdiction over that territory until an
election has been held and the voters have ratified the annexation. Before the section 36.325
annexation is final, if the second district proceeds under the section 36.321 annexation procedure to
add the same territory, it is arguably authorized to do so because no other district has jurisdiction
over the territory, including the first district. Id $5 36.321L.323 (authorizing annexation of land
pursuant to a petition of the landowner). Consequently, when the first district then proceeds to hold
its ratification election on a subsequent date, it arguably is not entitled to assertjurisdiction over the
territory because the territory is already included within the second district pursuant to the section
36.321 annexation procedure.

        In sum, we believe that, while a court might have a basis to apply the first-in-time rule, we
cannot predict with confidence whether a court would do so here. Indeed, we believe that a court
could also find that the first annexation was "not final" and that the section 36.321 annexation was
therefore authorized. The briefing provided to us does not identify any Texas case squarely
addressing this question, and we have found none. This appears to be a question of first impression,
and given the current state of the law, we cannot predict how a Texas court would resolve this issue.
As a result, we cannot definitively answer your question. See Tex. Att'y Gen. Op. No. GA-0630
(2008) at 4 ("The attorney general's. . .duty to render legal advice. . . does not include the authority
to legislate or to establish binding judicial precedent[,]" but is to "advise only about our
understanding of the current status of the law."); accordTex. Att'y Gen. Op. No. GA-0279 (2004)
at 4-5.
The Honorable Patrick M. Rose - Page 4            (GA-0795)



                                      S U M M A R Y

                       Whether a water district-that adds territorv- -pursuant to
              individual petitions of separate landowners,in compliance with Water
              Code sections 36.321 through - 36.324,. before
                                                        "     annexation of the same
              territory by another groundwater district is ratified at an election
              under section 36.328-acquires jurisdiction over the subject temtory
              depends on whether a court would apply the fnst-in-time rule to
              competing chapter 36 annexation claims. Applying the first-in-time
              rule, a court could find that the first district to initiate annexation
              procedures acquiresjurisdiction. A court could also find that the first
              district to finalize the annexation acquires jurisdiction. This office
              cannot predict, in the apparent absence of judicial precedent, how a
              Texas court would resolve this issue. As a result, we cannot
              definitively answer your question.




                                             Attorney ~ W aofl Texas


DANIEL T. HODGE
First Assistant Attorney General

NANCY S. FULLER
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee
