Case Information
*1 OFFICE OF THE ATTORNEY GENERAL OF TEXAS AUSTIN
GROVER SELLERS ATTORNEY GENERAL
Honorable Joe Gordon County Attorney, Gray County Pampa, Texas
Dear Mr. Gordon:
Opinion No. 6-5801 Re: Has the Gray County Wind Erosion District been logally created and ihcor- porated as authorized by Article 165a-6, Vernor's unheated Civil Statutes? Also you may county form a Gold Conservation District under Article 165a-6?
He have received your recent communication and, for purposes of our answer, quote also as follows:
"At a regular term of the Commissioners" Court of this County held on April 18, 1956, there was presented to the Commissioners' Court a petition for an election to be held in this County to determine whether the majority of the legally qualified tax pay- ing veters of this County favored the creation and interpretation of the area of this County into a Wind Erosion Conservation District as provided by House Bill 80. 80% in the note of the Legislature, 1955.
"On April 18, 1956, the Commissioners' Court of this County entered an order calling the election as requested by the petition above referred to. The order calling the election seems to fully comply with all the requirements thereof as provided in the above law. Notice of the election was given in accordance with the provi- sions of the above law and the election was legally held on May 16, 1956 in pursuance of the foregoing petition, order and notice thereof. At a regular session of the Commissioners' Court of this County held
*2 HONorable Jce Gordon, page 2 on June 8, 1936, the following order was entered in the minutes of the Commissionsers' Court: "'Election held May 16, 1936, canvassed and results declared to be as follows: "'For the creation and incorporation of the Gray County Wind Erosion Conservation District. " 230 Votes "'Against the creation and incorporation of the Gray County Wind Erosion Conservation District " 37 Votes." "No order was entered by the County Judge of this County deelaring such district to be created and incorporated as was provided by Seetlon 8 of the Wind Erosion District law, same being Article 168a8, which you will find in the Vornen's Statutes, 1936, Centennial Edition. "No further action has been taken by the Commissionsers' Court of thin County in carrying out the functions of the Gray County Wind Erosion Conservation District. I would like to have your opinion as to whether or not the Gray County Wind Erosion District has been legally created and incorporated as authorized by the above Wind Erosion Conservation District law. "In addition to the forageing, I would like to know whether or not the landowners within the limite of Gray County may now form a Bell Conservation District as authorized by House Bill No. 44 as passed by the 48 th Legislature, Aate, 1939, as amended by the 47 th Legislature, Aate, 1941. " " "
*3
Artiole 160c-2, Vernon's annotated Civil Statutes,
in regard to the canvase of returns and order deoloring creation
of Wind Erosion Distriote provides as follows:
"100. 3. When the returns of the election
mentioned in Section 2 have been canvassed by the
Commissioners Court, the result of such election
shall be declared by order entered on the Minutes
of said Court and, if the result is in favor of
the creation and incorporation of the District, the
County Judge shall issue an order deoloring such
District to be created and incorporated and such
order shall also be entered in the Minutes of the
Commissioners Court and a certified copy thereof
entered in the Deod Records of the county. There-
upon, the District shall be deomed to be legally
created and incorporated with all rights, powers,
authority and privileges herein conferred and au-
thorized by Section 59, of Articlo XVI, of the
Constitution, for the purpose of conserving and re-
claiming the soil in such District." (Underscoring
ours)
Said article seens to be imperative in such provisions requiring that an order of the County Judge deoloring such District created and incorporated be issued and entered, etc., before such District shall be deomed legally created and incorporated, etc.
If such an order, as contemplated by the statute, was in fact made of issued by the County Judge and he failed to enter same, as required by this statute, then, in that event, we see no reason why same should not now or hereafter be entered same pro tune in the Minutes of the Commissioners' Court, and a certified copy thereof entered in the Deod Records of the County. This procedure in regard to local option prohibition elections is approved in the following cases: Spears Y. State, 183 S. W. (2d) 674; Weaver Y. State, 188 S. W. (2d) 1083. However, we 11 mit the application of such cases herein to the authority to enter a nunc pro tunc judgment or order only. If this action be taken, the creation and incorporation of such District shall date from the time of the actual entry of the certified copy in the Deod Records, and not date back to the issuance of the order.
*4 Honever, if no such order was over made, we know of no authority prohibiting the issuance of one at this time by the present County Jucige, based on the duly entered order deoluring the results of the election.
In either of the two next above set out instances, such order must be entered and a oertified copy thereof be recorded as specifically set out in the statute in order to complete the legal creation and ineor poration of such District.
It is to be understood that we are not here passing upon the legality of your election, but we are assuming, for the purposes of our answer, that everything done in the attempted creation of such District up to and including the entry on the Commissioners' Court Minutes of the order deolaring the result of said olection, was regular and according to law.
We trust the above satisfactorily answers your question as to the orestion of a Wind Erosion Conservation District.
In regard to your question about forming a Soil Conservation District, we have carefully considered article 165a-4, Vernon's Annotated Civil Statutes, together with its legislative history as affecting said Article 165a-2, and find no rengon why the landowners of your county, providing the State Soil Conservation Board finds it desirable and necessary, could not form such a District after a lawful election, etc., under the terms of said Article 165a-4.
In this connection, we oall your attention to subsection (d) of Section 2 of said Article 165a-4, where as a Deolaration of Policy it provides that:
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- the agene 10 s created, powers conferred and the activities contemplated in this not for the conservation of soil and water resources and for the reduction of public damage resulting from failure to conserve such natural resources, shall be supple mentary and comple mentary to the work of various river and other authorities now established in the State and to other State officers, agencies, and districts engaged in closely related projects, and shall not be duplicative thereof nor conflicting therewith.*
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*5 the also call your attention to aubuection C. of sec. 5 of Houre 3111 No. 444, sots of the 47 th Leghalature, Fegular Jession, (amending the act of the 46th Leghalature authorizing such Soil Conservation Districts) on page 511, which etates as follows: "This not shall not in anywige affect, im- pair, nor impinge upon the provisions of Houre Bill No. 978, nete of the negular Session of the Forty-fourth Leglelature, under which Wind Erosion Conservation Districts have been created or may hereafter be created, but the same is expresely preserved in accordance with the teras thereof; the State soil Conservation Board shall have authority, working with the governing bodies of the Wind Ero- sion Conservation Districts, to put into operation in said Wind Erosion Conservation Districts such provisions of this not as are not in conflict with the provisions of Houre Bill No. 978, Acts of the Fegular Session of the Forty-fourth Legislature." Submitted with our ainoore respects, we are
Yours very truly ATTORNEY GENGRAL OF TEXES By Robert d. Lettinore, Jr. inasiatant
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