Could the city of Denison withdraw on its own from the Greater Texoma Utility Authority, and was the authority unconstitutional if it could not?

Texas AG Opinion JM-896: Denison Could Not Unilaterally Leave the Greater Texoma Utility Authority

Plain-English summary

Representative Ashley Smith asked whether the city of Denison could withdraw from the Greater Texoma Utility Authority, what procedure would apply, and whether the lack of a withdrawal procedure made the authority unconstitutional.

The Attorney General concluded that Denison had no unilateral withdrawal power. The Legislature created the authority as a conservation and reclamation district under article XVI, section 59, of the Texas Constitution. Such a district was a political and corporate entity separate from the cities and other political subdivisions sharing its territory.

The authority's enabling act established its territory and allowed additional territory to be annexed. It also incorporated Water Code procedures through which the authority's board could exclude land or property. Neither the act nor another identified statute allowed a city to remove itself from the authority. Because the first answer was no, the opinion did not identify a city-initiated withdrawal procedure.

The constitutional challenge also failed. Municipalities were political subdivisions created and controlled by the state, and a city could not claim federal constitutional protection against the state over this kind of political organization. Texas home-rule authority likewise remained subject to the state constitution and general laws. The Legislature's decision to provide land-exclusion procedures without a unilateral city-withdrawal right did not invalidate the authority.

Currency note

This opinion was issued in 1988. Subsequent statutory amendments, court decisions, or later AG 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.

Common questions

Could Denison withdraw from the Greater Texoma Utility Authority by city action alone?

No. The opinion found no statute giving the city that power.

Was there any way to remove territory from the authority?

The enabling act and Water Code sections 54.701 through 54.710 allowed the authority's board of directors to exclude land from its boundaries. That was not the same as a city unilaterally withdrawing.

Why could the state restrict a city's ability to leave?

The opinion treated both the city and authority as political subdivisions whose powers and territorial arrangements were matters for the Legislature, subject to the Texas Constitution.

Did home-rule status give Denison an independent withdrawal power?

No. Home-rule powers remained limited by the city charter, the Texas Constitution, and general laws.

Did the lack of a withdrawal right make the authority unconstitutional?

No. The Attorney General concluded that the authority's creation and continued operation remained constitutional.

Background and statutory framework

The Legislature created the Greater Texoma Municipal Utility District in 1979 and renamed it the Greater Texoma Utility Authority in 1983. Its constitutional basis was article XVI, section 59, which authorized conservation and reclamation districts as governmental agencies and bodies politic and corporate.

City of Pelly v. Harris County Water Control and Improvement District No. 7, 198 S.W.2d 450 (Tex. 1946), and Harris County Flood Control District v. Mann, 140 S.W.2d 1098 (Tex. 1940), described a specially created conservation district as a distinct political entity. Banker v. Jefferson County Water Control and Improvement District No. 1, 277 S.W.2d 130 (Tex. Civ. App. - Beaumont 1955, writ ref'd n.r.e.), placed such districts on the same footing as other political subdivisions in carrying out governmental functions.

The 1979 act prescribed the authority's initial composition, annexation, and land-exclusion procedures. Sections 54.701 through 54.710 of the Water Code gave the board authority to exclude land. The opinion contrasted article 2351a-6, section 14b, which expressly allowed certain cities to leave rural fire prevention districts under specified conditions. No comparable provision applied to the utility authority.

Hunter v. City of Pittsburgh, 207 U.S. 161, 178-179 (1907), explained that a state could expand, contract, combine, or dissolve municipal corporations without restraint from the federal Constitution. State ex rel. Burnet County v. Burnet County Hospital Authority, 495 S.W.2d 300, 303 (Tex. Civ. App. - Austin 1973, writ ref'd n.r.e.), rejected an inherent municipal right of self-government beyond state control. Lower Colorado River Authority v. City of San Marcos, 523 S.W.2d 641 (Tex. 1975), explained that home-rule powers were limited by charters, the constitution, and general laws.

Citations

Constitutional and statutory authority:
- Texas Constitution article XVI, section 59
- Texas Constitution article XI, section 5
- Acts 1979, 66th Legislature, chapter 97, sections 2 and 4
- Water Code sections 54.701 through 54.710
- V.T.C.S. article 2351a-6, section 14b

Cases:
- City of Pelly v. Harris County Water Control and Improvement District No. 7, 198 S.W.2d 450 (Tex. 1946)
- Harris County Flood Control District v. Mann, 140 S.W.2d 1098 (Tex. 1940)
- Banker v. Jefferson County Water Control and Improvement District No. 1, 277 S.W.2d 130 (Tex. Civ. App. - Beaumont 1955, writ ref'd n.r.e.)
- State ex rel. Pan American Production Co. v. Texas City, 303 S.W.2d 780 (Tex. 1957)
- Norris v. City of Waco, 57 Tex. 635 (Tex. 1882)
- Hunter v. City of Pittsburgh, 207 U.S. 161, 178-179 (1907)
- Williams v. Baltimore, 289 U.S. 36 (1933)
- City of Trenton v. New Jersey, 262 U.S. 182 (1923)
- City of Newark v. New Jersey, 262 U.S. 192 (1923)
- State ex rel. Burnet County v. Burnet County Hospital Authority, 495 S.W.2d 300, 303 (Tex. Civ. App. - Austin 1973, writ ref'd n.r.e.)
- Lower Colorado River Authority v. City of San Marcos, 523 S.W.2d 641 (Tex. 1975)

Prior Attorney General materials referenced: JM-605 and JM-453 (1986).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-896
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1988/jm0896.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Obvious character-level OCR errors have been corrected, but minor errors may remain; the linked PDF is authoritative.

May 5, 1988

Honorable Ashley Smith Opinion No. JM-896
Chairman
Government Organization Re: Whether the city of
Committee Denison may withdraw from
Texas House of Representatives the Greater Texoma Utility
P. O. Box 2910 Authority (RQ-1224)
Austin, Texas 78769

Dear Representative Smith:

 You ask three questions concerning the      withdrawal of

a city from a special district:

      1. May the city of Denison withdraw       from
   the Greater Texoma Utility Authority?

      2. If so, what procedure is required    for
   the city of Denison to accomplish withdrawal?

      3. If withdrawal is not available to the
   city of Denison, does the unavailability
   affect the constitutionality of the authority
   as created?

We understand you to ask whether the city, by virtue of
its status as a municipal corporation, has the power to
withdraw from the authority. We conclude that it does not
and that this fact does not render unconstitutional the
existence of the authority or the act creating it.

 The Greater Texoma Utility Authority was authorized

by the legislature in 1979 under the name "Greater Texoma
Municipal Utility District." Acts 1979, 66th Leg., ch.
97, at 177. It was renamed in 1983. Acts 1983, 68th
Leg., ch. 398, at 2160. The authority is a conservation
and reclamation district created pursuant to article XVI,
section 59, of the Texas Constitution. Districts created
pursuant to this provision are declared to be

   governmental agencies and bodies politic and
   corporate with such powers of government and




                        p. 4409

Honorable Ashley Smith - Page 2 (JM-896)

   with the authority to exercise such rights,
   privileges  and functions concerning    the
   subject matter of this amendment as may be
   conferred by law.

Tex. Const. art. XVI, §59(b). A conservation and
reclamation district created by special act of the
legislature pursuant to this provision is a distinct
corporate and political entity, separate from other such
entities with which it may share territory. see City of
Pelly v. Harris County Water Control and Improvement
District No. 7, 198 S.W.2d 450 (Tex. 1946); Harris County
Flood Control District v. Mann, 140 S.W.2d 1098 (Tex.
1940). It stands upon the same footing as counties and
other political subdivisions and exercises the state's and
its own police power in performing its governmental
functions. Banker v. Jefferson County Water Control and
Improvement District No. 1, 277 S.W.2d 130 (Tex. Civ. App.
- Beaumont 1955, writ ref'd n.r.e.).

 As a creature of the state, a city cannot usurp

powers otherwise conferred upon the legislature. City of
Jefferson v. Railroad Commission, 455 S.W.2d 906 (Tex.
Civ. App. - Austin 1970, writ ref'd n.r.e.). In State ex
rel. Pan American Production Co. v. Texas City, 303 S.W.2d
780, 782-783 (Tex. 1957), dism'd, 355 U.S. 603 (1958), the
Supreme Court noted that the territorial composition of
municipal corporations is essentially a political question
to be determined by the legislature, quoting Norris v.
City of Waco, 57 Tex. 635 (Tex. 1882). This rule is
especially relevant to the territorial composition of
political subdivisions such as conservation and reclama-
tion districts. See Tex. Const. art. XVI, §59(b). To
that end, the legislature provided for the initial
composition of the authority and for the annexation of
additional territory. Acts 1979, 66th Leg., ch. 97, §2(a)
and (b) at 177. The legislature has also prescribed
procedures for the exclusion of land or other property
from the authority. Id. §4(a), at 180. Those procedures,
where applicable, are contained in sections 54.701 through
54.710 of the Water Code and grant the board of directors
of the authority the power to exclude land from its
boundaries. There is no provision authorizing a city to
unilaterally withdraw from the district, and we have been
directed to no statute authorizing the same. Compare
V.T.C.S. art. 2351a-6, §14b (authorizing governing bodies
of certain cities to exclude the cities from rural fire
prevention districts with no bonded indebtedness if the
cities agree to provide fire protection services to the

                      p. 4410


Honorable Ashley Smith - Page 3       JM-896)




excluded areas); Attorney General Opinion Nos. JM-605,
JM-453   (1986).  Accordingly,  your first   question  is
answered in the negative. We need not answer your second
question, since it is predicated on an affirmative answer
to your first question.

     Regarding your third question, we note that the
courts have consistently held that municipalities   may not
claim protection under the federal constitution    from the
state. In Hunter v. City of Pittsburgh,      207 U.S. 161,
178-179 (1907), the Supreme Court declared:

          Municipal   corporations       are     political
       subdivisions   of the       State, created       as
       convenient agencies for exercising such of
       the governmental powers of the State as may
       be intrusted to them. . . .            The State,
       therefore, at its pleasure may . . . expand
       or contract the territorial area, unite the
       whole or a part of it with another munici-
       pality, repeal the charter and destroy the
       corporation. . . . In all these respects
       the state is supreme, and its legislative
       body, conforming    its action to the state
       Constitution,     may    do            it     will,
       unrestrained   by     any provision         of   the
       Constitution   of the United States. . . .
       The power is in the State, and those who
       legislate    for    the     State     are     alone
       responsible for any unjust or oppressive
       exercise of it.

See also Williams v. Baltimore,     289 U.S. 36 (1933);
Trenton v. New Jersey, 262 U.S. 182 (1923): Newark v. New
Jersey, 262 U.S. 192 (1923).

     Texas courts have held that municipalities have no
inherent right of local self-government that is beyond the
control of the state.    State ex rel. Burnet County v.
Burnet County Hospital Authority, 495 S.W.2d 300, 303
(Tex. Civ. App. - Austin 1973, writ ref'd n.r.e.). As to
cities exercising powers pursuant to article XI, section
5, of the Texas Constitution (the home rule amendment), we
note that such powers are limited by their charters or by
the constitution or general laws.     Lower Colorado River
Authority v. City of San Marcos,     523 S.W.2d 641    (Tex.
1975). As we have already noted, article XVI, section
59, of the constitution   authorizes   the legislature    to
pass laws creating and implementing       conservation   and
                            p. 4411


                                                           ,

Honorable Ashley Smith - Page 4 (JM-896)

reclamation districts. The legislature has prescribed the
methods whereby land may be excluded from the Greater
Texoma Utility Authority. Acts 1979, 66th Leg., ch. 97,
§4(a), at 180. Consequently, we cannot say that the
failure to provide cities the power to unilaterally
withdraw from the authority renders unconstitutional its
creation and continued operation.

                   SUMMARY

        The city of Denison, Texas, may not
   unilaterally  withdraw   from the     Greater
   Texoma Utility Authority.   The failure of
   the legislature    to   provide   for    such
   withdrawal does not render unconstitutional
   the creation or continued operation of the
   authority.




                               JIM     MATTOX
                               Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Steve Aragon
Assistant Attorney General

                     p. 4412