Untitled Texas Attorney General Opinion ( 1946 )

?I-HE ATroRNEY GENERAL
OF’TEXAS
Eon. T. E. Knight
county Attorney
Stonewal1~0ounty
A~permont, Texas
Dear Sir; O@lnl& No-;O-7580
Rer As-.tiatithorltyfor~olty to
oreatb’.wateti
dletrlot rlthln
lta oiinboundaries undnr
dtitlolea78804SKor V881,
R.C.S. 1925, and roleted
queationa.
W8 have considered your letter OS Aug. 25, 1946,
on behalf of H. H. Shadle, County Judge of Stonewall
Coutity,in whloh you request an opinion on tha following
qusatlons,,ae quoted from your lettor:
"1. I ha%d you latter to mo from County Judge
E. H..%adls of thl6 County in whloh ha rlahsd to
know whether the City of hspemnont may, under
Artlolo 7880435 oi'Revlaed Statutes, oroate water
dlstrlots wholly wlthln ita boundarlaa for the
purpose of digging wells, pools, or tanku:~oJIly
outside the olty llmlts and plplng wator lnto the
olty of domestlo and oommerloal purpo``ea.
"2. baa lndloated by Judge Shadls, tMa Lt.
rather suggests that a tom mlght,only aid aMthor
district or be oreatod ln oonneotlon rlth outside
territory aa a rater dlrtrlot, and 1s vague as to
whether olty might oroata rater dlatriot within
ltaelf to obtaln rater for domeatlo and oommerolal
purposes. What 1s your oplnlon a8 to this?
"3. I understand that the olty aldeken may
appoint five dlreotors and organize the water Control
and Improvement Dlstrlot - aa provided by said Art.
,7880-135, and that after this an eleotlon rould have
to be held to determine whether bonds might be Issued
and taxes levied. But, as stated, Aspermont rants to
provide way for water for only domestic and oommer-
clal purposea. Would this provision be broad enough
.to lnoluds auoh4
Ron. T. E. Knight, page 2, O-7380
"4~. If Aspermont might oreate within itself
a water dlstrlot for t@e purposes mentioned, should
petition for eleotlon to levy taxes and laaur bonds
be addressed to the Commissioners Court of then
County, or might the City Council order the eleotlori
on petition?
"5. Under Chapter 4, Art. 7881, it seems that
Fresh-Water Supply Dlstrlota may be created for
purpose of transporting water for domestlo and
oommerloal purposes, and that such districts may
include cities. But this article does not speoifl-
oally state that cities within their own boundaries
may create suoh diatrlot. As stated, Aspermont wants
fresh water, and she wants it for domestlo and com-
merloal purposes, and she wishes to transport such
water from lakes, pools, tanks, creeks or any other
place she may get it outside the city. If she can
create such a district wholly within her~own borders,
then it may be that ahe could organize and create
suoh district under this Rrtlole 7881, and this would
be better than oreatlng.sams under 7880-136. But, it
is not olear that she could do this alone. What do
you think about it?
I
. . .
ihylllsay that on June 19th, 1946, we asked
for opinion from you relative to the City of Aspermont
joining with outalde territory and orsatlng water
dlstrlot, and you gave us opinion No. O-7130. Later
the olty oonoluded that an eleotlon with the outsldo
territory would not oarrg in favor of oreatlng the
dlstrlot, and now desires to oreats dlatrlot within
it8 own bordera. This la why we are asking for
opinion as stated above."
- we understand your letter,
The baaid problem, as
is the oorrsot statutory authority for the creation of a
water district with boundaries ootermlnous with those of the
city of Aspennont for the purpose of supplying fresh water
for domestlo end oommerloal use by the inhabitants of the
city of Aepermont.
Your fifth and last question poses the above
stated problem ln the light of Art. 7881 (R.C.S. 1925),
~whloh reads as follows:
I ,t. Ls-
Hon. T. E. Knight, paga S, O-7580
*Artiolo 7881. Purpcwe8
Vhero may ba oreatod within this Stata
oonerrvatlon dlstrlots~.tok knom ar Frmh Wuter
Supply Dlatrlota for the purpose of oonaarvlng,
transporting and distributing freah rater from
lakes, pools, reservoira, rolls, aprlngs, orsaks,L
and rivers for dome&&o and.oommorolal purpoaesj
as contemplated by Seotlon 69, Artlolo 16 of the
State constitution. Said dlstrlots~shall have and
may exerolse all tha,rlghta, 'privilegesand porere
given by this ohapter and in aocordanoe with its
directions, llmltatlons and provisions. Such dls-
trlcts may or may not include oltlee and towns.*
It would appear that the above article spe~lfloally
provides for the exact purpose for whLoh you desire to oreate
a Water District, namaly, a Fresh Water Supply Dlstrlot
organized to transport.and distribute fresh rater for dorps-
tic and commerolal purposes.
Such a dlatrlot, however, may not be oreated by a
town or olty, but may be oreatod only upon the presentation
to the commissioners oourt or oounty judge of tha county
embracing the lands -iR '&e proposed district of a petltlon
signed by fifty or a majority&f the qualified voters of
such proposed district who own land theroln, as~provlded by
Art. 7882. Such petition must, among other th¶.nga,.sat
forth the bouqdarles of the proposed dlatrlati tho.gensral
nature of the.,workproposed to be dono, the naomaslty
therefor, and the feaelblllty thoroof.
As stated ln the oaee of Be10 ~vi Morrlmnn (Clv.
App.) 245 S.W.,1012, reversed on other grounds, 296 8.W.
1095, there is no limitation as to the boundaries of suoh
dlstrlot or sugg+stlon thritoounty llnea or lines of any
other .polltloal subdivision shall be oonslderod ln l.stab-
lishing such district, and it is immaterial that water to
be conserved is out of the district and ia to be brought
into the dlstrlot.
We find no objection to the oreatlon.of auoh a
Fresh Water Supply Dlstrlot with boundaries coterminous
with the boundaries of the olty of,Aapermont, provided that
oompllanoe is made with tha rsqUlrem&s of Chapter 4
Tltle'l28, R.C.S. 1925, as amended. (Arts. 7881-78991.
It should be noted that this chapter requires an eleotlon
by the resident property taxpayers who are qualified voters
of such proposed dlatrlot (Arts. 7888-7893) before such
Hon. T. E. Knight, page 4, O-7380
district oan be organized.
Referring now to your _
first
._ four
.. questlone,
.. ^
you ask in question number on4 wheth4r tllsolsy Or
Aspermont may, under Art. 7-6-136, R. C. 3. 1995, oreate
within its own boundaries a water dlstrlot for the hitherto
stated purposea. Suoh artlole reads ln part as follows:
"Any town, olty or munloipal oorporatlon may have
the benefit and powers herein provided under th4
constitution of this Stat4 and may aid any district
in the oonstruotion and operation of any suoh lmprove-
ments to the extent that same may be an advantage to
such municipal oorporatlon in the following manner:
"A. The area included in any town, olty or Ir
municipal corporation be organized into and oonstl-
tuted a water oontrol and improvement dlstrlot with
all the powers, authority and prlvll4g4s provided by
Seotion 59 of Article 16 of the Constitution and be
governed by this Act, by an ordinance duly enacted by
the board of aldermen, oommissloners, orgoverning body
thereof, oonstitutlng same a water oontrol and lmprovs-
ment district and appointing five dlreotors therefor.
The bonds of suoh directors shall be filed with and
approved by said governing board of suoh munlclpallty,
and upon the quallfloatlons of said dlreotors said
dlstrlot la completely organized without th4 neces-
sity of holding an 4leotlon therefor. Said district
shall from and after lta organization be governed
by th4 provisions of this Aot and sny amendments
hereafter 4naotsd."
The above quoted artlole by its terma provides
for the orsatlon by ordlnanos of the~governlng body of a
town or oitv of a Water Control and Imrrovement 0lstrlot
to include only the area of suoh town br oity, without
the neoesslty for an eleotlon to oonfirm the creation or
organization of such district. Suoh dlstrlot is given
all the powers provided by Section 59 of Art1014 16 of
the Texas Constitution, which rmoessarilv lnoludes the
purpose act forth in your letter, tog4ther with many other
purposes, as 4numerated in Artiole 7880-3, 7880-3a, and
7080-7. It will be noted that after organization of suoh
a district pursuant to a duly enaoted ordinance of the town
or olty in question, said ordinance appointing five direotors
for such dlstrlot to serve until the next general election
in such dlstriot, there must be held a general election on
Hon. T. $. Knight,.pago 5, O&7384 1: ,,
the aeoond Tuesday in January next after the said dlatrlot
is formed, at whloh time the flvo dlreotora for thr @strict
shalk b4 aleotad. (Art.~78SO-37) i. ,
:
After or&nl~a&&, a'*dlatriot'o&aCad k&r
Art..7880-155 la subjsot. to a11 the,provlsions~of Chapter 3A,
Title 128, R.C.S. 1925, as amended,.where applloable.
(Arts. 7880-l to 7880-1472, inoluslvo)
Your first question is therefore answered in the
affirmative.
Your ~seoondquestion is, in general, answered by
the above statements in our answer to your first question.
It may.b4 added that a distrlot areated under Art. 7880-135,
after organization is a separate polltloal entity from th4
town or olty,by.whose ordinance s'uohdistrict was created,
even though the boundaries of suoh dlstrlot are ooterminous
with the boundaries of such town or city. By the terms of
said article, the town or city in question may aid such
district "in the oonstructlon and operation of any such
1mprovament.sto th4 .4xtent that same may be an advantage
to such municipal oorporationn in the manner set out by
the statute, but after creation of the district the govern-
ing body of the town or oity in question has no oontrol over
the dlstrlot, whloh has a governing body of its own and
its powers, authority and privileges are referable to a
different title of the Revised Civil Statutes than are thos4
of towns and cities.
The statement included in your thlrd.quebtlon to
the effeot that an election in the dlstrlot would be
necessary before bonds may be issued and taxes lovied in
support theroof is oorreot. As stated ln our above answer
to your first question, districts organized under Art.
7880-136 are given sufflolqntly broad authority to carry
out th4 purpose of transporting and dletrlbutlng fresh
water for domestic and oommeroial use within suoh dlstrlot;
therefore, your third qusstion is answered in the affirmative.
Your fourth question is answered by referenoe to
Articles 7880-9, -31, -32, -78, -00, and -81. No petition
is required for an election in water districts to issU0
bonds and levy taxes in payment therefor.. Suoh elections
are ordered by the direotors of suoh dlstrlct~on the basis
of surv4ys and investigations oonducted on the order of
such directors, and bonds may be issued only after the
approval of the State Roard of Water Engineers is secured,
,
Hon. E. T. Knight, page 6, O-7380
as Gquired by Art. 7880-139. It will be noted, as stated,
above,,that after the oreatlon of a water oontrol and
lmprovbment district under the provisions of Art. 7880-136,
such dlstrlot beoomes a separate polltloal entity and is
not eubjeot to the oontrol of the govsrnlng body either
of th4 olty or of the oounty~wlthln whose boundaries suoh
dlstrlot may be looated.
Truatlng that we have satlsfaotorlly answered
your questions, we remain
Yours very truly
ILTTORNEXO~WSRJUIOF TEXAS
s/ Wm. Blanton, Jr.
BY
Wm. Blanton, Jr.
Assistant
WB:hMW/og
Approved Wov. 8, 1946
a/ Harris Toler
First ;bssltant~'
Attorney Oeneral
This opinion oonsldered and approved in limited oonferenoe.