Untitled Texas Attorney General Opinion
GA-1049
| Tex. Att'y Gen. | Jul 2, 2014Background
- The Legislature enacted Senate Bill 281 (effective Sept. 1, 2013) authorizing the Red River Authority (RRA) to purchase "groundwater rights" but providing that in counties without a groundwater conservation district such purchases require the county commissioners court's approval.
- RRA purchases potable groundwater from the city of Vernon to supply systems in Wilbarger County, which lacks a groundwater conservation district.
- A dispute arose whether the statutory phrase "purchase of groundwater rights" includes purchasing groundwater already removed from the ground (a commodity) or only acquisitions that convey property rights (e.g., the right to drill and produce groundwater).
- The County argued the statute requires commissioners court approval for any existing purchase, use, or acquisition of underground water; the RRA argued the statute reaches acquisitions of groundwater rights, not mere commodity purchases.
- The Attorney General analyzed statutory text and the RRA’s enabling legislation, which separately refers to "underground water" and "underground water rights," and concluded the terms are distinguishable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether "purchase of groundwater rights" includes purchase of groundwater already removed from the ground | County: any purchase/use/development of underground water requires commissioners court approval | RRA: statute applies to acquisition of groundwater rights (property), not all commodity purchases | The phrase distinguishes rights from water; not every purchase of groundwater is a purchase of groundwater rights requiring approval |
| Whether statutory language treats "groundwater" and "groundwater rights" interchangeably | County: treats them as functionally equivalent for approval purposes | RRA: legislative text and amendments show a deliberate distinction between water and water rights | Legislature’s retention of both phrases indicates distinction; plain language controls |
| Whether a pre-September 1, 2013 contract is affected by the Bill | County: (implied) Bill should govern existing purchases | RRA: Bill should not apply retroactively | Statutes are presumed prospective; contracts before effective date are not affected |
| Whether the AG can resolve contract-specific factual questions about whether a purchase conveys groundwater rights | County: asks AG to interpret particular purchases as conveying rights | RRA: contends interpretation depends on contract terms | AG: whether a contract conveys a "groundwater right" depends on the specific contract and is a factual/contract-construction question inappropriate for an AG opinion |
Key Cases Cited
- Edwards Aquifer Auth. v. Day, 369 S.W.3d 814 (Tex. 2012) (recognizing private ownership of groundwater in place)
- City of Del Rio v. Clayton Sam Colt Hamilton Trust, 269 S.W.3d 613 (Tex. App.–San Antonio 2008, pet. denied) (noting groundwater may be bought and sold like other property)
- FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868 (Tex. 2000) (applying traditional rules of statutory construction regarding legislative intent)