Can one water district annex land the legislature set aside for a new district not yet created?

Texas AG Opinion JM-544: Annexing District Land

Plain-English summary

The Sixty-ninth Legislature authorized creating a new water district, the El Paso County Lower Valley Water District Authority, and drew its proposed boundaries, but the district still had to be confirmed by the voters at an election before it could exist. In the meantime, an existing district, the El Paso County Water Authority, received petitions from landowners inside those proposed boundaries asking to be annexed into the existing authority instead. The El Paso County Attorney asked whether the existing district could legally annex that territory before the new district held its confirmation election. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0544.pdf

The AG concluded that it could, subject to a timing rule. Water districts are political subdivisions treated like cities for annexation purposes, and when two coordinate subdivisions claim the same land the courts apply a priority rule: the one that first commences legal proceedings asserting authority over the area acquires a jurisdiction that a later attempt cannot defeat. The legislature's designation of the new district's boundaries did not create the district or give it any rights over that land, because a water district is not "created" until the voters approve it at a confirmation election, and a political subdivision has no vested or contract right in its designated boundaries. A landowner annexation petition that is regular on its face invokes the existing district's jurisdiction to act. So the El Paso County Water Authority could annex the disputed territory if it had received valid petitions and had not abandoned its jurisdiction (for example, by rejecting the petitions), and if the proposed new district had not already taken official action over the whole area first. For the new district, an order by its temporary board calling the confirmation election would count as commencing legal proceedings. A valid annexation would detach the annexed land from the proposed district's boundaries. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0544.pdf

Currency note

This opinion was issued in 1986. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. The Water Code annexation and confirmation-election provisions and the Election Code section cited here have since been amended and renumbered. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or citation mentioned here.

Common questions

Can a water district grab land the legislature earmarked for a new district?

Under this opinion, yes, if its timing and paperwork are right. The AG concluded an existing water district may annex territory inside a proposed new district's designated boundaries before the new district's confirmation election, provided the existing district acquired jurisdiction first through valid landowner petitions and did not abandon it, and the new district had not already commenced its own legal proceedings over the area. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0544.pdf

Doesn't the legislature drawing the boundaries lock in the land for the new district?

No. The AG explained that the legislature's designation of a proposed water district's boundaries does not confer any particular rights over that territory, because the district is not created until the voters approve it at a confirmation election and cannot exercise any powers before then. A political subdivision also has no vested right in its designated boundaries. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0544.pdf

Who wins when two districts claim the same territory?

Whoever properly acted first. The AG applied the priority rule from cases like State ex rel. City of Fort Worth v. Town of Lakeside: between two subdivisions of coordinate authority, the one that first commences legal proceedings asserting authority over an area acquires a jurisdiction that a later attempt cannot defeat. The courts look for some official act taken under law that shows an intent to exercise jurisdiction over the disputed area. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0544.pdf

What happens to the land once it is annexed?

It leaves the proposed district. The AG concluded that if the El Paso County Water Authority properly acquired jurisdiction and lawfully annexed the territory, the legal effect would be to detach that territory from the designated boundaries of the proposed El Paso County Lower Valley Water District Authority. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0544.pdf

Background and statutory framework

The El Paso County Lower Valley Water District Authority was authorized under article XVI, section 59 of the Texas Constitution by the Sixty-ninth Legislature (Acts 1985, 69th Leg., ch. 780), which required a confirmation election within the proposed boundaries under Water Code sections 54.026 through 54.029 before the authority could be created. The El Paso County Water Authority, an existing water conservation and reclamation district created in 1961, had statutory power to annex land, and its board had received landowner annexation petitions under the Water Code (sections 50.051 and 51.714 through 51.717) for land lying within the proposed authority's boundaries. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0544.pdf

The AG built its answer from several settled points. Water districts are political subdivisions on the same footing as counties (Sears v. Colorado River Municipal Water District), but for annexation purposes they are treated as municipalities, and municipal annexation principles apply to them (State ex rel. Spring Hill Utility District v. City of Longview). Two municipal corporations cannot exercise the same general governmental authority over the same area (City of Nassau Bay v. City of Webster; City of Galena Park v. City of Houston), so the courts resolve overlapping claims with a priority rule under which the authority that first commences legal proceedings acquires jurisdiction (State ex rel. City of Fort Worth v. Town of Lakeside). Legislative designation of boundaries does not lock in the land: a district is not created until its confirmation election (Jackson v. Texas Water Rights Commission), and a subdivision has no vested or contract right in its boundaries, which the legislature may reduce so long as it does not impair the subdivision's ability to meet its lawful debts (Lyford Independent School District v. Willamar Independent School District; San Diego Independent School District v. Central Education Agency; Hunt County v. Rains County). Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0544.pdf

Applying those principles, the AG reasoned that the mere legislative "designation" of the proposed authority did not commence legal proceedings conferring exclusive jurisdiction (compare Lower Nueces River Water Supply District v. Cartwright, where a district that was no more than a bare legal entity could be condemned by another). A petition for annexation regular on its face invokes the subdivision's jurisdiction and is effective against later competing claims (School Board of the City of Marshall v. State; Pennington v. City of Corpus Christi), much as a petition for incorporation can mark the commencement of proceedings (Perkins v. Ingalsbe; Universal City v. City of Selma; City of El Paso v. State ex rel. Town of Ascarate), though the courts require some official act manifesting intent to exercise jurisdiction, and absent one the subdivision is deemed to have abandoned the territory (State ex rel. Wilkinson v. Self; and see the annexation-initiation examples in Beyer v. Templeton, City of Arlington v. City of Grand Prairie, and City of Fort Worth v. State ex rel. Ridglea Village). The AG concluded the existing authority could annex the land if it had valid petitions and had not abandoned jurisdiction, unless the new district had first taken official action (such as its temporary board's order calling the confirmation election) over the entire area; a lawful annexation would detach the land from the proposed district (Young v. Edna Independent School District). Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0544.pdf

Citations and references

The opinion cited the following authorities. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0544.pdf

Constitutional and statutory provisions:

• Tex. Const. art. XVI, § 59; art. III, § 53
• Water Code §§ 54.026-54.029 (confirmation election); §§ 50.051, 51.714-51.717 (annexation by landowner petition)
• Election Code § 3.004(b)
• V.T.C.S. art. 1171
• Acts 1985, 69th Leg., ch. 780 (El Paso County Lower Valley Water District Authority); chs. 683, 684 (Homestead Municipal Utility Districts Nos. 1 and 2)

Cases:

• Sears v. Colorado River Municipal Water District, 487 S.W.2d 810 (Tex. Civ. App. - Eastland 1972)
• State ex rel. Spring Hill Utility District v. City of Longview, 642 S.W.2d 544 (Tex. App. - Tyler 1982), rev'd on other grounds, 657 S.W.2d 430 (Tex. 1983)
• City of Nassau Bay v. City of Webster, 600 S.W.2d 905 (Tex. Civ. App. - Houston [1st Dist.] 1980), writ ref'd n.r.e. per curiam, 608 S.W.2d 618 (Tex. 1980)
• City of Galena Park v. City of Houston, 133 S.W.2d 162 (Tex. Civ. App. - Galveston 1939)
• State ex rel. City of Fort Worth v. Town of Lakeside, 328 S.W.2d 245 (Tex. Civ. App. - Fort Worth 1959)
• Lyford Independent School District v. Willamar Independent School District, 34 S.W.2d 854 (Tex. Comm'n App. 1931)
• San Diego Independent School District v. Central Education Agency, 634 S.W.2d 50 (Tex. App. - Austin 1982)
• Hunt County v. Rains County, 7 S.W.2d 648 (Tex. Civ. App. - Texarkana 1925)
• Lower Nueces River Water Supply District v. Cartwright, 274 S.W.2d 199 (Tex. Civ. App. - San Antonio 1954)
• Jackson v. Texas Water Rights Commission, 512 S.W.2d 696 (Tex. Civ. App. - Beaumont 1974)
• School Board of the City of Marshall v. State, 343 S.W.2d 247 (Tex. 1961)
• Pennington v. City of Corpus Christi, 363 S.W.2d 502 (Tex. Civ. App. - San Antonio 1962)
• Perkins v. Ingalsbe, 347 S.W.2d 926 (Tex. 1961)
• Universal City v. City of Selma, 514 S.W.2d 64 (Tex. Civ. App. - Waco 1974)
• City of El Paso v. State ex rel. Town of Ascarate, 209 S.W.2d 989 (Tex. Civ. App. - El Paso 1947)
• State ex rel. Wilkinson v. Self, 191 S.W.2d 756 (Tex. Civ. App. - San Antonio 1945)
• Beyer v. Templeton, 212 S.W.2d 134 (Tex. 1948)
• City of Arlington v. City of Grand Prairie, 451 S.W.2d 284 (Tex. Civ. App. - Fort Worth 1970)
• City of Fort Worth v. State ex rel. Ridglea Village, 186 S.W.2d 323 (Tex. Civ. App. - Fort Worth 1945)
• Young v. Edna Independent School District, 34 S.W.2d 857 (Tex. Comm'n App. 1931)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0544
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0544.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

September 15, 1986

Honorable Danny Anchondo
El Paso County Attorney
Room 201, City-County Bldg.
El Paso, Texas 79901

Opinion No. JM-544

Re: Whether a political subdivision may annex territory which the legislature has designated as territory to be included in a new special district

Dear Mr. Anchondo:

Pursuant to article XVI, section 59, of the Texas Constitution, the Sixty-ninth Legislature authorized the creation of a new water conservation and reclamation district to be known as the El Paso County Lower Valley Water District Authority. Acts 1985, 69th Leg., ch. 780, at 5611. The act authorizing the creation of the district contains the following pertinent language:

Before the authority is created, a confirmation election must be called and held within the boundaries of the proposed authority in accordance with Sections 54.026 through 54.029, Water Code. Creation of the authority must be approved by a majority of the qualified voters of the proposed authority voting at the election.

Id. § 2B at 5616-5617.

The El Paso County Water Authority, also a water conservation and reclamation district, was established pursuant to article XVI, section 59, of the Texas Constitution in 1961. Acts 1961, 57th Leg., 1st C.S., ch. 32, at 136. See also Acts 1969, 61st Leg., ch. 718, at 2098; Acts 1971, 62nd Leg., ch. 314, at 1254. The El Paso County Water Authority has the authority to annex land. Acts 1971, 62nd Leg., ch. 314, at 1254, 1255. The board of directors of the district has received petitions submitted by a number of landowners requesting annexation to the El Paso County Water Authority. See Water Code §§ 50.051, 51.714-51.717. The land described in these petitions lies within the proposed boundaries of the El Paso County Lower Valley Water District Authority. Your office requests our opinion on the following question:

Can territory designated by the legislature to be included in the [El Paso County] Lower Valley [Water] District Authority be legally annexed by another political subdivision prior to the confirmation election as called for in the legislative enactment of the new district?

Assuming that the annexing political subdivision has properly acquired jurisdiction over the disputed territory prior to the commencement of legal proceedings over the same area by the newly designated water district, your question can be answered in the affirmative. The effect of such annexation would be to detach the annexed territory from the territory of the proposed district. An explanation follows.

Water districts are political subdivisions of the state and stand on the same footing as counties. See Tex. Const. art. XVI, § 59(b); Sears v. Colorado River Municipal Water District, 487 S.W.2d 810 (Tex. Civ. App. - Eastland 1972, writ ref'd n.r.e.). For the purposes of article III, section 53, of the Texas Constitution, however, water districts are regarded as municipalities. Attorney General Opinion V-787 (1949) and authorities cited therein. Further, it has been held that the principles applicable to annexation by municipalities should also apply to water districts. See State ex rel. Spring Hill Utility District v. City of Longview, 642 S.W.2d 544, 549 (Tex. App. - Tyler 1982), rev'd on other grounds, 657 S.W.2d 430 (Tex. 1983).

The general rule in this state is that two municipal corporations cannot exercise the same general governmental authority over the same area. See City of Nassau Bay v. City of Webster, 600 S.W.2d 905 (Tex. Civ. App. - Houston [1st Dist.] 1980), writ ref'd n.r.e. per curiam, 608 S.W.2d 618 (Tex. 1980); City of Galena Park v. City of Houston, 133 S.W.2d 162 (Tex. Civ. App. - Galveston 1939, writ ref'd); Attorney General Opinion JM-400 (1985).

In resolving disputes between municipal corporations which assert jurisdiction over the same territory, the courts have adopted a rule of priority. Between two political subdivisions of concurrent or coordinate authority, the courts adhere to the following rule:

The municipal authority, be it one having a legal existence or in the process of organization, which first commences legal proceedings asserting authority over a given territory thereby acquires a jurisdiction over the same which cannot thereafter be defeated by a subsequent attempted exercise of jurisdiction by a similar municipal organization. [Citations omitted].

State ex rel. City of Fort Worth v. Town of Lakeside, 328 S.W.2d 245, 247 (Tex. Civ. App. - Fort Worth 1959, writ ref'd). Applying this rule to the present inquiry, it becomes necessary to determine what constitutes the commencement of legal proceedings sufficient to grant one entity jurisdiction over a given area to the exclusion of the other. It would be helpful to begin by discussing some matters which do not determine the question of jurisdiction.

For instance, it is clear that the legislature's designation of the boundaries of a proposed water district does not confer any particular rights with respect to such boundaries. A water district is not "created" until it receives the voters' approval at a confirmation election and may not exercise any of its powers prior to the confirmation election. See Water Code § 54.026; Attorney General Opinion Nos. MW-380 (1981); V-1 (1957).

In addition, the courts hold that a political subdivision has no vested or contract rights in its designated boundaries. See Lyford Independent School District v. Willamar Independent School District, 34 S.W.2d 854 (Tex. Comm'n App. 1931, judgmt adopted); San Diego Independent School District v. Central Education Agency, 634 S.W.2d 50 (Tex. App. - Austin 1982, no writ); Hunt County v. Rains County, 7 S.W.2d 648 (Tex. Civ. App. - Texarkana 1925, no writ). The legislature may provide methods whereby such boundaries are reduced, provided the reduction in territory does not prevent the political subdivision from meeting its lawful indebtedness. Id.

The legislature has provided such methods in this instance. The boundaries of the El Paso County Lower Valley Water District Authority are subject to the creation of two municipal utility districts also authorized by the Sixty-ninth Legislature. See Acts 1985, 69th Leg., chs. 683, 684, at 5121, 5132 (authorizing Homestead Municipal Utility Districts Nos. 1 and 2). If either of the municipal utility districts is approved at a confirmation election, the territory of the approved district is to be excluded from the boundaries of the El Paso County Lower Valley Water District Authority. Acts 1985, 69th Leg., ch. 780, § 2A, at 5611, 5616.

In one instance a court held that a water district could condemn land entirely within the boundaries of another water district where the power of eminent domain was granted by statute and its exercise was essential to the operation of the water district, and where the latter district was no more than a bare legal entity, having exercised none of its authorized powers. Lower Nueces River Water Supply District v. Cartwright, 274 S.W.2d 199 (Tex. Civ. App. - San Antonio 1954, writ ref'd n.r.e.). Thus, we do not believe that the legislature's "designation" of the El Paso County Lower Valley Water District Authority constitutes the commencement of legal proceedings so as to confer upon the proposed district exclusive jurisdiction over the disputed territory. Cf. Jackson v. Texas Water Rights Commission, 512 S.W.2d 696 (Tex. Civ. App. - Beaumont 1974, no writ) ("designation" of a water district does not confer authority to act prior to its "creation").

The courts hold that the submission of a petition for annexation which is regular on its face is sufficient to invoke the jurisdiction of the political subdivision to determine whether the petition satisfies statutory requirements. School Board of the City of Marshall v. State, 343 S.W.2d 247 (Tex. 1961). This jurisdiction is effective against subsequent attempts by adverse parties to exercise jurisdiction over the same territory. Pennington v. City of Corpus Christi, 363 S.W.2d 502 (Tex. Civ. App. - San Antonio 1962, writ ref'd n.r.e.), cert. denied, 375 U.S. 439 (1964).

The courts also hold that the filing of a petition for incorporation as a separate municipality marks the commencement of legal proceedings so as to give that entity jurisdiction over the territory described in the petition and to preclude the subsequent attempt of another municipality to annex the same territory. See Perkins v. Ingalsbe, 347 S.W.2d 926 (Tex. 1961); Universal City v. City of Selma, 514 S.W.2d 64 (Tex. Civ. App. - Waco 1974, writ ref'd n.r.e.); City of El Paso v. State ex rel. Town of Ascarate, 209 S.W.2d 989 (Tex. Civ. App. - El Paso 1947, writ ref'd). However, one court held that where the filing of a petition for incorporation did not result in the procuring of an order from the county judge calling for an election on the question of incorporation, a city was not deprived of the authority to annex the territory described in the petition. State ex rel. Wilkinson v. Self, 191 S.W.2d 756 (Tex. Civ. App. - San Antonio 1945, no writ). But see State ex rel. City of Fort Worth v. Town of Lakeside, 328 S.W.2d 245 (Tex. Civ. App. - Fort Worth 1959, writ ref'd) (petition for incorporation was offered to county judge's assistant for acceptance, but was mistakenly rejected by assistant; court held that this was sufficient to confer authority upon new municipality and that city's attempt to annex same territory one day later was without legal effect). These cases do not address the situation in which the formation of a political subdivision is not initiated by petition, but by an act of legislature. Nonetheless, we believe that these cases do offer guidance in resolving our inquiry.

In determining whether one political subdivision has acquired jurisdiction over disputed territory to the exclusion of another, the courts require some official act taken pursuant to law which manifests the intention of the political subdivision to exercise jurisdiction over the disputed territory. See, e.g., Perkins v. Ingalsbe, supra (filing of petition for incorporation followed by order from county judge calling for election on question of incorporation); State ex rel. City of Fort Worth v. Town of Lakeside, supra (same); Universal City v. City of Selma, supra (same); City of El Paso v. State ex rel. Town of Ascarate, supra (same). See also School Board of the City of Marshall v. State, supra (initiation of annexation proceedings by city commission); Beyer v. Templeton, 212 S.W.2d 134 (Tex. 1948) (first reading of annexation ordinance in accordance with city charter); City of Arlington v. City of Grand Prairie, 451 S.W.2d 284 (Tex. Civ. App. - Fort Worth 1970, writ ref'd n.r.e.) (same); Pennington v. City of Corpus Christi, supra (initiation of annexation proceedings by city council); City of Fort Worth v. State ex rel. Ridglea Village, 186 S.W.2d 323 (Tex. Civ. App. - Fort Worth 1945, writ ref'd w.o.m.) (city council's adoption of resolution pursuant to article 1171, V.T.C.S.). In the absence of any such official act, the political subdivision is deemed to have abandoned its jurisdiction over the territory. See State ex rel. Wilkinson v. Self, supra.

Accordingly, the El Paso County Water Authority may annex territory within the designated boundaries of the proposed El Paso County Lower Valley Water District Authority if it has received valid landowner petitions for annexation and if it has not abandoned its jurisdiction over the territory, i.e., it has not rejected the petitions for annexation. See Water Code §§ 50.051, 51.714 (addition of land to water district by petition of landowner); 51.716 (hearing and determination on petition by board of directors). The authority to annex the disputed territory would not exist, however, if it is determined that the El Paso County Lower Valley Water District Authority had taken official action with respect to the entire area encompassed by its proposed boundaries before the petitions for annexation were filed with the competing district. For the purposes of this opinion, an order by the temporary board of directors calling the confirmation election would constitute the commencement of legal proceedings sufficient to confer jurisdiction over the disputed areas. See Acts 1985, 69th Leg., ch. 780, § 2B, at 5616-5617; Water Code §§ 54.026-54.029 (relating to confirmation election); Election Code § 3.004(b) (requiring the governing body of a political subdivision to issue order for election relating to the affairs of the political subdivision when laws requiring the election do not delegate such authority).

You have not supplied us with enough information upon which to base a complete answer. Assuming, however, that the El Paso County Water Authority has properly acquired jurisdiction over the territory described in the petitions for annexation and has lawfully annexed such territory, the legal effect of this action would, in our opinion, be to detach the territory from the designated boundaries of the El Paso County Lower Valley Water District Authority. See generally Lyford Independent School District v. Willamar Independent School District, supra; Young v. Edna Independent School District, 34 S.W.2d 857 (Tex. Comm'n App. 1931, judgmt adopted); San Diego Independent School District v. Central Education Agency, supra.

SUMMARY

Territory situated within the proposed boundaries of a newly designated water district may be annexed prior to the designated district's calling of a confirmation election by another water district which has acquired jurisdiction over the territory.

Very truly yours,

Jim Mattox
Attorney General of Texas

JACK HIGHTOWER
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Rick Gilpin
Assistant Attorney General