Can a Texas water district build or operate inside another district's boundaries without permission?

Plain-English summary

Texas has many local water districts, special governmental units created to handle drainage, reclamation, water supply, and similar work in a defined area. A state representative asked the Attorney General about one of them, the Brazoria County Conservation and Reclamation District Number Three, and whether it could carry out its works inside the boundaries of another district without a contract, an interlocal agreement, or permission, and if so, whose rules would apply.

The opinion started with a basic principle: a governmental body like this district has only the powers the Legislature clearly gave it, measured by the statutes that created it. So the question was what the district's enabling law and the general water-district statutes allow. The 1969 act that created the district set it up for reclamation and drainage of overflowed and other lands and for navigation of inland and coastal waters within or adjacent to the district. Importantly, the act repeatedly granted the district authority "both within and outside the boundaries of the district," for works and improvements, for acquiring land, and for operating and contracting for its facilities. General water-district law in Water Code section 49.221(a) likewise lets a district's directors, engineers, and agents "go on any land" for certain purposes connected to locating public works. Read together, those provisions let the district generally act beyond its own boundaries as needed to accomplish its statutory functions.

That broad power is not unlimited. The opinion pointed to Water Code section 56.144, which applies when a district shares a watershed with another district. If the district decides that building improvements in the shared watershed would be a public benefit and would accomplish the purposes in article III, section 52(b)(1), (2), and (3) of the Texas Constitution, section 56.144 requires it to first propose an interlocal agreement with the other district before exercising its authority in that shared watershed. If the agreement is not executed within a set time, the district can petition the Texas Commission on Environmental Quality to approve the plan, and on approval it may implement the plan within the other district's boundaries. So, in answer to the first question, the district may generally act beyond its boundaries, but a shared watershed may first require an interlocal agreement under section 56.144.

The second question, whether the district must follow its own rules or the rules of the district where it works, did not get an answer. The opinion said that depends on a variety of factors, including the particular circumstances of the project, and the request supplied no specific facts about the contemplated project. So the opinion declined to address it.

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 Brazoria County Conservation and Reclamation District Number Three (as the opinion described it): The opinion read the district's 1969 enabling act and general water-district law to let it act beyond its boundaries as necessary for its statutory functions, subject to the shared-watershed condition in section 56.144.

Neighboring districts that share a watershed (as the opinion described it): The opinion treated section 56.144 as requiring the acting district to first propose an interlocal agreement (or obtain Commission on Environmental Quality approval) before exercising its authority in a shared watershed for qualifying improvements.

On whose rules govern the work (as the opinion described it): The opinion did not decide the second question. It said the answer depends on the particular circumstances of the project, and the request gave no specific facts.

Common questions

Can a Texas water district work outside its own boundaries?
Generally yes, as the opinion read the law. The district may act beyond its boundaries as necessary to accomplish the functions its enabling statute grants, and general water-district law lets its agents go on land for certain public-works purposes.

Does it always need permission from the other district first?
Not always. But the opinion identified a specific situation, a shared watershed, where Water Code section 56.144 requires the district to first propose an interlocal agreement (or get Commission on Environmental Quality approval) before acting in that watershed for qualifying improvements.

What happens if the two districts can't reach an agreement?
Under section 56.144, if the interlocal agreement is not executed within a set period, the district may petition the Texas Commission on Environmental Quality to approve the plan, and on approval it may implement the plan within the other district's boundaries.

Whose rules apply when one district works inside another?
The opinion did not answer that. It said the answer depends on the circumstances of the specific project, and the request did not provide those facts.

Background and statutory framework

The district was created by the Act of May 8, 1969 (61st Legislature), which organized it for reclamation and drainage and for navigation of inland and coastal waters within or adjacent to the district, and which granted it authority "both within and outside the boundaries of the district" for works and improvements (section 5), for acquiring land (section 9), and for operating and contracting for its facilities (section 10). Water Code section 49.221(a) gives water-district personnel authority to go on land for purposes connected to the location of public works. Water Code section 56.144 imposes the shared-watershed condition, tied to the public-benefit purposes of article III, section 52(b)(1), (2), and (3) of the Texas Constitution, and provides for Commission on Environmental Quality approval if no interlocal agreement is reached.

For the principle that a governmental body's powers are measured by its authorizing statutes, the opinion cited Tri-City Fresh Water Supply District No. 2 of Harris County v. Mann, and for the Legislature's power to set where a political subdivision may operate, State ex rel. Grimes County Taxpayers Ass'n v. Texas Municipal Power Agency.

Citations

Cases:

• Tri-City Fresh Water Supply Dist. No. 2 of Harris Cnty. v. Mann, 142 S.W.2d 945, 948 (Tex. 1940)
• State ex rel. Grimes Cnty. Taxpayers Ass'n v. Tex. Mun. Power Agency, 565 S.W.2d 258, 273 (Tex. Civ. App.—Houston [1st Dist.] 1978, writ dism'd)

Statutes:

• Act of May 8, 1969, 61st Leg., R.S., ch. 307, §§ 4, 5(a)-(c), 9, 10, 1969 Tex. Gen. Laws 948, 949-51
• Tex. Water Code Ann. § 49.221(a) (West 2008)
• Tex. Water Code Ann. § 56.144 (West 2002)
• Tex. Const. art. III, § 52(b)(1), (2), (3)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0961
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2012/ga0961.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

August 17, 2012

The Honorable Dennis Bonnen Opinion No. GA-0961
Chair, Select Committee on Voter
Identification and Voter Fraud Re: Whether Conservation and Reclamation District
Texas House of Representatives Number Three in Brazoria County may conduct
Post Office Box 2910 operations within the boundaries of another district
Austin, Texas 78768-2910 (RQ-1046-GA)

Dear Representative Bonnen:

You ask two questions concerning the authority of a conservation and reclamation district "to conduct works within [the boundaries of] another ... district."[1] You first ask whether the Brazoria County Conservation and Reclamation District Number Three (hereinafter "the District") may conduct works in another district "without any prior verbal or written contract (interlocal agreement) or prior verbal or written permission." Request Letter at 2. You further ask whether the District would have to work "in accordance with [the other district's] rules or in accordance with its own rules [or] methods." Id. You do not provide us with any information about the District's proposed works or the specific manner in which they would impact the other district. Therefore, we limit our analysis to a general discussion of the District's legal authority and express no opinion on any particular course of action.

The District "shall be a governmental agency and body politic and corporate ...." Act of May 8, 1969, 61st Leg., R.S., ch. 307, § 4, 1969 Tex. Gen. Laws 948, 949 (the "Act"). The powers of governmental agencies or bodies corporate "are measured by the terms of the statutes which authorized their creation, and they can exercise no authority that has not been clearly granted by the Legislature." Tri-City Fresh Water Supply Dist. No. 2 of Harris Cnty. v. Mann, 142 S.W.2d 945, 948 (Tex. 1940). "In the absence of a constitutional limitation, it is within the power of the legislature to determine in what areas, either within or without its boundaries, [a] political subdivision may conduct its operations." State ex rel. Grimes Cnty. Taxpayers Ass'n v. Tex. Mun. Power Agency, 565 S.W.2d 258, 273 (Tex. Civ. App.—Houston [1st Dist.] 1978, writ dism'd). Thus, we examine the legislative act creating the District and general-law statutes applicable to the District to determine the scope of its authority outside its boundaries.

The District is "organized and existing for the reclamation and drainage of its overflowed lands and other lands needing drainage, and the navigation of inland and coastal waters within the district or adjacent thereto." Act of May 8, 1969, 61st Leg., R.S., ch. 307, § 4, 1969 Tex. Gen. Laws 948, 949. In furtherance of this goal, the Act provides that the District "is hereby granted the right, function, power and authority, both within and outside the boundaries of the district" to engage in a wide variety of actions necessary to accommodate or facilitate navigation within the District or adjacent thereto. Id. § 5(a)-(c), 1969 Tex. Gen. Laws at 949-50 (emphasis added). For example, the District is empowered to take certain actions with respect to "all works and improvements within and outside the boundaries of the district necessary to accomplish the rights, powers, functions and authorities set forth in this Act ...." Id. § 5(c), 1969 Tex. Gen. Laws at 950 (emphasis added). In addition, the District "may acquire the fee simple title to, or a lease upon, or an easement upon, all lands, both public or private, either within or beyond the boundaries of the district ...." Id. § 9, 1969 Tex. Gen. Laws at 951 (emphasis added). "The [D]istrict shall have the right to operate all such plants, works and improvements, and to contract for the use of, and sell its facilities, or services to or by another, either within or beyond the boundaries of the district ...." Id. § 10, 1969 Tex. Gen. Laws at 951 (emphasis added). Moreover, general law applicable to all water districts provides that their directors, engineers, attorneys, agents, operators, and employees "may go on any land" for certain purposes in connection with the proposed location of public works. TEX. WATER CODE ANN. § 49.221(a) (West 2008) (emphasis added).

This broad grant of power is not, however, without limits. If the District shares a watershed with another district and determines that construction of improvements in the shared watershed would be a public benefit and would accomplish the purposes of article III, sections 52(b)(1), (2), and (3) of the Texas Constitution, the Water Code requires the District to first propose an interlocal agreement with the other district before exercising its authority in the shared watershed.[2] See id. § 56.144 (West 2002). Thus, in answer to your first question, the District may generally act beyond its boundaries as necessary to accomplish its statutorily defined functions. However, if the District shares a watershed with another district, an interlocal agreement may first be required to comply with section 56.144 of the Water Code.

The answer to your second question, whether the District is required to follow its own rules or those of the district within which it conducts works, will likely depend upon a variety of factors, including the particular circumstances of the project at issue. You do not provide us with any specific facts regarding the project contemplated by the District. Accordingly, we do not address your second question.

SUMMARY

The Brazoria County Conservation and Reclamation District Number Three may generally act beyond its boundaries as necessary to accomplish its statutorily defined functions. Water Code section 56.144 requires that if the District shares a watershed with another district and determines that construction of improvements in the watershed would be a public benefit and would accomplish the purposes of article III, sections 52(b)(1), (2), and (3) of the Texas Constitution, the District may not exercise its authority without first proposing an interlocal agreement or receiving approval from the Texas Commission on Environmental Quality. Without specific facts regarding the project to be conducted within the boundaries of another district, we cannot opine on whether the District is required to follow its own rules or those of the other district.

Very truly yours,

DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

JASON BOATRIGHT
Chairman, Opinion Committee

Becky P. Casares
Assistant Attorney General, Opinion Committee

[1] See Letter from Honorable Dennis Bonnen, Chair, Select Comm. on Voter Id. & Voter Fraud, to Honorable Greg Abbott, Tex. Att'y Gen. at 2 (Mar. 5, 2012), http://www.texasattorneygeneral.gov/opin ("Request Letter").

[2] If the agreement is not executed within a certain period of time, the Texas Commission on Environmental Quality can be petitioned to approve the plan, upon which approval the District "shall be authorized to implement the plan within the boundaries of the other district." TEX. WATER CODE ANN. § 56.144 (West 2002).