                      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. 0. 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




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Honorable Ashley Smith - Page 2     (JR-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, 559(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 Citv of
Pellv v. Harris Countv Water Control and Imwrovement
District No. 7, 198 S.W.2d 450 (Tex. 1946); Harris County
Flood Control District v. Mann,     140 S.W.Zd 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 Countv Water Control and
Imnrovement 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
nowers otherwise conferred upon the legislature.     Citv 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 Citv, 303 S.W.Zd
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 leg~islature, quoting Norris v.
Citv 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, 959(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, !jZ(a)
and (b) at 177.      The legislature  has also prescribed
procedures for the exclusion    of land or other property
from the authority. Id. 54(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. Comware
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       UM-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. Citv of Pittsburah,      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 provEion         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 Jersev, 262 U.S. 182 (1923): Newark v. New
    Jersev, 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 Countv
    Burnet Countv Hoswital Authoritv      495 S.W.2d  300, 3;,
    (Tex. Civ. App. - Austin 1973, wri; 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
P
    the constitution or general laws.     Lower Colorado River
    Authoritv v. Citv 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
r




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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,
54(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




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