Untitled Texas Attorney General Opinion ( 1946 )

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. - 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