Untitled Texas Attorney General Opinion ( 1956 )

Ronorable R. M. Dlixon,Chairman Opini,onRo...
,S.495 ~_
Board of Water Engineers
~1410.Lsvaca'Btreet ~.Re~,..Aa&mri7ty
.df,.the
State
~Austin,Texas Aoard of Wa>er ~BpgLneeI's
: tn,rW .ciP
.lLmlt:czrea-
.LLon;.of-.a
Maker cofbtrdl
aixmmprorem8nt lLYb+irlct
-ben.:iAe petitioners .do
.not..Me* to exercise
some part of the purpose
Dear Mr. Dixon: ~expreased.
Yourrecent request ,foran 0pUiion of thla offtie presents-a
situation-tibere,-awater control ,and.impr.ovement.d.lak!~ct
28
aougiztto-be'~crea~ed,``reuantto tbe~pFovlSFons.of Article ,16,?
Section .59$ of the Constifntion'of ~Texas,.``and'the.dUkrict
,Fs
sought to ,be clothed~with all of the--statutorg.``.~paa.ea
detailed
in Article 7880-3, Vernon's Clvil Statutes. The S&e Board~of
'Water Engineers has jurisdic-tionof the petitionfor .the crea-
tion ef the dlstrlet by virtue of Article 7880-13, V.C-S.
The questions propounded are as follows?
"1; If the petition 'for the.creation
of ~a water control and improvementdis-
trict recites any purpose which the evl-
dence presented by the proponents 'conclu-
sively shows will not be needed .orqxer-
claed by the district, must the Board, as
a matter of law,,refuse to grant the,peti-
tion? Or may the Board, in its discretion,
-,h?gallyrefuse to grant the petition u,here
the evidence does not support a.finding
that a requested purpose will be needed or
exercised by the proposed district?
"2. Does the Board have the authority,
as a matter of law, to grant a petition for
district creation In part and deny it in
part? In the instant situation, ~may the
Board grant the petftfon insofar as au-
thorizing the creation of a district for
I .
Hon. R. M. Dixon, page 2 (S-195)
flood contrG1 purposes yet deny authori-
zation for that purpose or purposes which
the evidence shows will not be needed?
"3* If the authorized district Is
limited to one purpose at the time of
creation, may such district later exercise
other purposes without approval by the
creating .body?"
Article 7880-11, v.c.s .,,,requiresthat the petition for the
cre&lon of the district shall designate "the purpose or 'pur-
pos&$~-of'the~projposeddistrlct~,and Article 7880-3 .distinct-
ly..I..statesthat
a water control and Improvement district may
be created,."'for
any one,or more of the purposes" therein pro-
vided. Itis apparent that the right toiseek the organization
of‘a water-control-and improvement district has been delegated
by Article 7880-3,'4, .lO, 11, and 12 to the various holders of
titie.to land as described in these subsec,tions,and it is,. c
therefore, the right of the petitioners to make the initial
proposal,of the purposes for the creation of the district, the
boundaries:of .the dl~strlctand the particular provision of the
' Constitiitlon~ofTexas which ,isto be followe~d.~Article 7880-10.
Upon(presentation.,.of
the petition to the Board of Water Engi-
neers,.the Board must determine if it has jurisdiction, and ~.
havingestablished .t,he.jurisdictionunder Article 7880-13, it
becomes-th&,duty of the Board to seta hearing on the petition-
In the manner prescribed by Article 7880-21, V.C.S. Lovett v.
Cronin, 245 S.W.2d 519, 522 (Tex.Clv.App. 1951).~ If it shall
appear on hearing that the "organization of a district as prayed
for is feasible and .gracticable,and that.it would be of benefit
to the land Included therein, and be a public benef,it,or utll-
lty," then the petition may be granted..Article 7880-19, V.C.S.
Conversely, if the Board ,ofWater Engineers finds"that such
proposed district'is'.not.
feasible or,mactical., or would not be
a public benefit or utility or would not be a.benefit to the
land included t.her&.n,nor-isnot ne.eded,':
then,the Board must
refuse to grant t~hepetition.
your first question, &&&,-is ,whetherthe ~&z&d may refuse
the petition if.the,,~evidenceshows that one,or,more of the pur-
poses of the district will:not be u,t.i:lised``,or~
.exercised. It is
quite conceivable that a'needfor one of the purposes may exist
without the district .seekingto.uti,liseorexercise.that purpose
in the immediate f%ture,~,but,such a.,eitusticn,does~notwarrant
the refusal to"creat'e'.
t.he,;
~dlstri,ct.'for;
that-,purpose-.The only
grounds for refusing stopcreate .the,,d&s,tr,ict
are found in Article
Ron. R. M. Dixon, page 3 (S-195)
7880-m. Statement of a purpose which will not be. exercised
would be:ground for refusing the petition only if thenBoard
found that thenfailure to exercise that purpose would render
the district unnecessary or that the district would-not~be a
public benefit or utility or would not begfeasible or practi-
cable if that purpose,is not exercised.
The second part of your first question~is whetherthe~ Boards
of Water Engineers may refuse the petition if.~it~is.conclu~
sively shown that one of the purposes~for the creation of the
district (as set forth in the petition) is.not needed'.
Article 7880-17, V.C.S., reads as~follows:
"Upon the day set for hearingupon a
petition for the organization of a district.'
by thencounty~commissioners.'court, or by-the-~
State Board of Water Engineers; any person,
whose~land.is.included in or would be'affected
by the creation of such~,districtmay.appearand:
conteat the creation thereof and may.offer
testimony to show that such district -is -or -.,
1s:~
not nece~ssarv'.
would-rxld not be anub1i.c``
utility, and-would.or would not b.e``
feasib1.e: ore
practicable. Such hearing may-be:,adjourned
from'day to'day." (Emphasis added throughout.)
Article-7880-19reads as:follows:
"If it shall appearon hearingby.the com-
missioners' court that the organization of a
dis~trlctas prayed for is feasible and practi-
cable, that it would be a benefit to the lands
to be included therein, and byea~public benefFt,
:. or utility, the commissioners' court shall so
I find and grant the petition. If the court
should find that such proposed'district~is not
:.~ feasible or practicable, would not be a~public
benefit or utility, or would not be a benefit
to the land to be included therein, or is~not
needed, the court shall refuse to grant t,he
petition."
116 Tex. 572, 296 S-W. 1070 (1927) the
the d;ties of the Board of Water Engineers under
delegation of power and described the duties.
following language:
. .
Ron. R. M. Dixon, page 4 (S-195)
"If upon hearing it appears to the board
of water engineers that the proposed plan of
water conservation, irrigation, and use pre-
sented in the petition Is practicable and
would present a public utility, then they
shall so find and enter their findings on
the records of the board, transmit a certi-
fied copy thereof.to the commissioners' court
of each c.ountyinvolved, and name a 'date on
which an election shall be held in the terri-
tory to be comprised within the district, to
determine whether or not the proposed district
shall be created in accordance with the provi-
sions of the act, and for the election of a
board of five directors. Should the board,
however, upon the hearing, determine that the
proposed district is not practicable, will not
serve a beneficial purpose, and that,it would
not be possible to accomplish through its organ-
ization the purposes proposed, then It shall so
,findand enter Its findings of.record and dismiss
the petition." (Emphasis added)
In the light of the express statutory provisions, the aboard of
Water Engineers must determine whether the organization or cre-
ation of the district meets the.requirements listed in Article
7880-19, V.C.S., and refuse .the petition --
if the prooosed dis-
trict does not meet those requirements. Your question mustbe
xred,in the negative. The Board of Water Engineers~may not,
as a matter of law, refuse the petition, unless the-prooosed
%&ict is not feasible and practicable, the land will not be
benefited, the district will not be a public benefit or utility,
or the district Is not needed.
If a woposed dlstr~ictwere sought to~be organized for six statu-
tory purposes and one of those purposes was conclusively shown to
be needed, the entire district might fall as not being feasible
and practicable or the failure to meet one of the other statutory
grounds. This decision, however, must be Initially made by the
creating agency upon the basis of each allegation in the petition,
the-preliminary plans presented to the agency, and the evidence
and testimony adduced at the hearing.
Your second question is answered in the negative. The Board of
Water Engineers has no power to grant a petition in part and'deny
it in part. The petition must be granted or denied as It is pre-
sented and filed with the Board. San Saba County Water Control
and Imorovement District No. 1 v. Sutton Counts, l2 S.W. 2d 134
Ron. R. M. Dixon, page 5 (S-195)
(T.ex.Comm.App.1929); Rutledge v. State, 117 Tex. 342, 7 S.W. 2d
lCq1 (19'8).
your third question is answered.in the``negative. If a district
is created for~only one,,purpose,,.i.t
may -exeroise the-powers inci-
dentand~.necessary to accomplish that purpose (Article-~7&&.-~8,
Artic~le~7880-7,V.C.S.) and%ene~other; There is no,procedure
under-'ourpresent law w~hereby~
s~uch~
a district could ~later:expand
itspurposes ,should.,exper,ience
demonstrate~,aneed exists for the
larger purposes, but such power could be given by ,theLegisla-
ture.
A water control and improvement district may be
created for one or more of the purposes specified
in Article 7880-3, V.C.S., upon proper findings,
and, ,after organization, is limited to the pur-
pose of Its creation. The petition for.the forma-
tion of the district constitutes the fundamental
document or basis of the hearing on the creation
of the district and that petition must be granted
or denied without change. :
APPROVED: Yours very truly,
JORNBER SREPPERD
Mary K. Wall Attorney General
Reviewer
Burnell Waldrep By &+*'#
Reviewer Elbert M. Morrow
Assistant
Davis Grant .,
First Assistant ';
John Ben Shepperd~
Attorney General