When two Texas bills amend the same groundwater law in conflicting ways, which version controls?

Plain-English summary

J. Steven Houston, then the Brewster County Attorney, asked the Attorney General to sort out a tangle the Legislature created in 2011. Two different bills, both passed by the 82nd Legislature, amended the same statute, Water Code section 36.121. That section exempts some wells from regulation by a groundwater conservation district when the water serves a municipality under a certain size and the water rights are held by a qualifying municipality or political subdivision. The question was whether the two amendments were in irreconcilable conflict.

The opinion agreed the two bills facially conflicted. House Bill 3109 made one change: it raised the population cutoff for the qualifying municipality from "100,000 or less" to "115,000 or less," widening the exemption. House Bill 2702, an omnibus bill, went the other way, rewriting the same language to "115,000 or less but greater than 100,000," which would have pulled smaller municipalities back under district regulation. So one bill expanded the exemption and the other narrowed it, using the same statutory text.

What broke the tie was a clause inside House Bill 2702 itself. It provided that to the extent it conflicted with any other law enacted by the 82nd Legislature that session, the other law would prevail, regardless of the dates of enactment or effective dates. The opinion paired that with the statutory-construction rule in Government Code section 311.025(b) that same-session amendments to one statute should be harmonized so each can be given effect. Because House Bill 2702 expressly yielded to conflicting laws from the same session, the opinion concluded the two could be harmonized, with House Bill 3109's amendment prevailing as the operative version of section 36.121.

Currency note

This opinion was issued in 2012. Subsequent statutory amendments, court decisions, or later Attorney General opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

The county attorney who asked (as the opinion described it): The opinion answered that the two amendments were not left in deadlock, and that House Bill 3109's version of section 36.121 prevailed because House Bill 2702 deferred to conflicting same-session legislation.

Groundwater conservation districts and the municipalities they serve (as the opinion held for them): The opinion read the controlling text as House Bill 3109's, which set the exemption threshold at a municipality with a population of 115,000 or less.

On reconciling the two bills (as the opinion described it): The opinion treated House Bill 2702's own conflict clause, combined with the rule favoring harmonization of same-session amendments, as resolving the facial conflict rather than voiding either bill.

Common questions

Two Texas bills changed the same statute in opposite directions. Did they cancel each other out?
According to the opinion, no. The opinion concluded the bills could be harmonized, with House Bill 3109's language controlling, because House Bill 2702 contained a clause yielding to conflicting laws passed at the same session.

What did House Bill 3109 change about the groundwater exemption?
The opinion explained that House Bill 3109 raised the qualifying municipality's population cap from "100,000 or less" to "115,000 or less," broadening the set of wells exempt from district regulation.

Why did House Bill 3109 win over House Bill 2702?
The opinion pointed to House Bill 2702's provision that, to the extent it conflicted with another law enacted that session, the other law prevails. Read with the rule harmonizing same-session amendments, that left House Bill 3109 controlling.

Background and statutory framework

Water Code section 36.121 exempts certain wells from regulation by a groundwater conservation district, subject to the exception in section 36.117, when the water supplies a qualifying municipality and the water rights are held as the statute specifies. The opinion traced the section's prior wording through earlier session laws before turning to the 2011 amendments. Both House Bill 3109 and House Bill 2702 were enacted by the 82nd Legislature and amended the same population language in different directions.

The resolution rested on two things: House Bill 2702's internal clause providing that "[t]o the extent that a law enacted by the 82nd Legislature, Regular Session, 2011, conflicts with this Act, the other law prevails," and the statutory-construction rule that same-session amendments to a statute "shall be harmonized, if possible, so that effect may be given to each." Tex. Gov't Code Ann. § 311.025(b) (West 2005). Together they led the opinion to conclude that House Bill 3109's amendment prevailed.

Citations

Statutes:

• Tex. Gov't Code Ann. § 311.025(b) (West 2005)
• Tex. Water Code Ann. § 36.121
• Tex. Water Code Ann. § 36.117

Session laws and bills referenced in the opinion:

• House Bill 3109, Act of May 29, 2011, 82d Leg., R.S., ch. 1042, § 1, 2011 Tex. Gen. Laws 2660
• House Bill 2702, Act of May 25, 2011, 82d Leg., R.S., ch. 1163, §§ 181, 201(b), 2011 Tex. Gen. Laws 3024

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0904
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2011/ga0904.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

January 12, 2012

The Honorable J. Steven Houston Opinion No. GA-0904
Brewster County Attorney
107 West Avenue E #7 Re: Whether two bills that amend section 36.121
Alpine, Texas 79830 of the Water Code, which relates to the regulatory
authority of groundwater conservation districts, are
in irreconcilable conflict (RQ-0985-GA)

Dear Mr. Houston:

You ask whether two bills enacted by the Eighty-second Legislature that purport to amend section 36.121 of the Water Code are in irreconcilable conflict.[1]

Prior to the 2011 legislative session, section 36.121 of the Water Code read as follows, in relevant part:

Except as provided by Section 36.117, a [groundwater conservation] district that is created under this chapter on or after September 1, 1991, shall exempt from regulation under this chapter a well and any water produced or to be produced by a well that is located in a county that has a population of 14,000 or less if the water is to be used solely to supply a municipality that has a population of 121,000 or less and the rights to the water produced from the well are owned by a political subdivision that is not a municipality, or by a municipality that has a population of 100,000 or less, and that purchased, owned, or held rights to the water before the date on which the district was created, regardless of the date the well is drilled or the water is produced.[2]

The Eighty-second Legislature adopted two bills that purport to amend section 36.121. House Bill 3109 made only one change to section 36.121: it amended the language that read "or by a municipality that has a population of 100,000 or less" to read "or by a municipality that has a population of 115,000 or less." Act of May 29, 2011, 82d Leg., R.S., ch. 1042, § 1, 2011 Tex. Gen. Laws 2660, 2660-61 (emphasis added). Thus, the only change made by House Bill 3109 was to extend the exemption from regulation by a groundwater conservation district to a well and any water produced therefrom that is purchased by a municipality owning water rights and having a population of "100,000 or less," to a well and any water produced therefrom that is purchased by any such municipality with a population of "115,000 or less." Id.

House Bill 2702, on the other hand, an omnibus bill that applies to various political subdivisions, made two changes to section 36.121. First, it qualified the language that read "to supply a municipality that has a population of 121,000 or less" by adding the phrase "but greater than 100,000." Act of May 25, 2011, 82d Leg., R.S., ch. 1163, § 181, 2011 Tex. Gen. Laws 3024, 3054. In addition, House Bill 2702 amended the language that read "or by a municipality that has a population of 100,000 or less" to read "or by a municipality that has a population of 115,000 or less but greater than 100,000." Id. Thus, any well supplying a municipality that was previously exempted from regulation because the municipality had a population of "100,000 or less" would, by virtue of House Bill 2702, be subject to regulation because the population of the municipality did not meet the minimum threshold of 100,000.

There can be no doubt that the quoted language of the two bills facially conflict because under House Bill 3109, a municipality purchasing, holding, or owning water rights and having a population of 115,000 or less would be exempt from regulation by a groundwater conservation district; whereas, under House Bill 2702, a municipality purchasing, holding, or owning water rights and having a population of 100,000 or less would be subject to regulation by a groundwater conservation district. But House Bill 2702 contains a provision that resolves the ultimate conflict:

To the extent that a law enacted by the 82nd Legislature, Regular Session, 2011, conflicts with this Act, the other law prevails, regardless of the relative dates of enactment or the relative effective dates.

Id. § 201(b), at 3058. The rules of statutory construction provide that "[i]f amendments to the same statute are enacted at the same session of the legislature, one amendment without reference to another, the amendments shall be harmonized, if possible, so that effect may be given to each." TEX. GOV'T CODE ANN. § 311.025(b) (West 2005). Although the two bills do not directly reference each other, House Bill 2702, by its declaration that "[t]o the extent [of] conflicts with this Act, the other law prevails," makes clear the legislative intent. Act of May 25, 2011, 82d Leg., R.S., ch. 1163, § 201(b), 2011 Tex. Gen. Laws 3024, 3058. As a consequence of this statutory declaration, the two bills may ultimately be harmonized with the result that the amendatory language of House Bill 3109 prevails over the amendatory language of House Bill 2702.

SUMMARY

Although House Bills 3109 and 2702 enacted by the Eighty-second Legislature are in facial conflict, House Bill 2702 provides that, to the extent of its conflict with another bill enacted at the same session, the other bill prevails. As a consequence, the two bills may ultimately be harmonized with the result that House Bill 3109 prevails and thus amends section 36.121 of the Water Code.

DANIEL T. HODGE
First Assistant Attorney General

DAVID J. SCHENCK
Deputy Attorney General for Legal Counsel

JASON BOATRIGHT
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee

[1] Letter from Honorable J. Steven Houston, Brewster County Attorney, to Honorable Greg Abbott, Attorney General of Texas (July 14, 2011), https://www.oag.state.tx.us/opin/index_rq.shtml ("Request Letter").

[2] Act of May 29, 1995, 74th Leg., R.S., ch. 933, § 2, sec. 36.121, 1995 Tex. Gen. Laws 4673, 4691, amended by Act of May 27, 2001, 77th Leg., R.S., ch. 966, § 11.04, sec. 36.121, 2001 Tex. Gen. Laws 1991, 2082 (emphasis added).