Petition for Writ of Certiorari — El Paso County Water Improvement District No. 1 v. Southwestern Bell Telephone Co.

sHoreme Comt eS

Noor. G4 116 vue | 9 200m

OFFICE OF THE CLERK

IN'THE

Supreme Court of the United States

EL PASO COUNTY WATER IMPROVEMENT

DISTRICT NO. 1,

Petitioner,

v.

SOUTHWESTERN BELL TELEPHONE COMPANY,

Respondent.

On PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

JAMES M. SPEER, JR. W. WENDELL HALL

ATTORNEY AT LAW Counsel of Record

300 E. Main Street FULBRIGHT & JAWORSKI L.L.P.

Suite 1440 300 Convent Street

El Paso, Texas Suite 2200

(915) 534-7393 San Antonio, Texas 78205

Lisa M. Power (210) 224-5575

Ext Paso CouNTY WATER

IMPROVEMENT District No. 1

294 Candelaria

El Paso, Texas 79907

(915) 859-4186

Attorneys for Petitioner

168157 g

COUNSEL PRESS

(800) 274-3321 * (800) 359-6859

“\\ a

i

QUESTIONS PRESENTED

1. Political subdivisions created and operated under

Article XVI, Section 59 of the Texas Constitution — like

the Petitioner, El Paso County Water Improvement District

No. 1 — manage, conserve, and reclaim the natural resources

of the State of Texas. Are these political subdivisions arms

of the State for purposes of Eleventh Amendment immunity

from suit in federal court?

2. When state law clearly characterizes a political

subdivision — like the Petitioner, El] Paso County Water

Improvement District No. 1 — as an arm of the state, is it

necessary to apply a multi-factor test before holding the

political subdivision immune from suit in federal court under

the Eleventh Amendment immunity?

3. When a federal court has held that a political

subdivision is an arm of the state entitled to Eleventh

Amendment immunity — like the Petitioner, El Paso County

Water Improvement District No. 1 — is it necessary in a

subsequent suit to re-examine whether such political

subdivision is immune from suit under the Eleventh

Amendment?

ii

STATEMENT PURSUANT TO RULE 29.6

Petitioner, E] Paso County Water Improvement District

No. 1, is a political subdivision created under Article XVI,

Section 59 of the Texas Constitution.

iii

TABLE OF CONTENTS

Page

Questions Presented ...........--eeeeeeeeeees i

Statement Pursuant to Rule 29.6 ............... il

NED ni siwriceuwesvecececccetwie iil

Table of Cited Authorities ...............-265- v

Table of Appendices ..............ceeeeceeees x

Opinions Below ..............cceceeeeseeeees l

ee ie 1

Constitutional Provisions Involved ............. 2

Bentemeet OF CO CASS ow ccc ccc ce ccccscccees 3

Reasons for Granting the Writ .............-.--- 5

I. The Fifth Circuit Panel’s Misunderstanding

of the Eleventh Amendment Immunity Test

Destroys Stare Decisis and Threatens

the Power of States to Shield Their

Instrumentalities from Suit in Federal Court.

UE eed Oia Eh eeab ewan aees 5

Il. The Federal Issue Is Important: Hundreds of

Political Subdivisions Throughout Texas

Will Improperly Be Denied Eleventh

Amendment Immunity. ................. 12

iv

Contents

| Page

Ill. The District Qualifies for Eleventh

Amendment Immunity Even If the Multi-

Factor Test is Applied. ................. 14

IIR, 650i 6 ve keuke bs ek hd oc eee oe 16

14

TABLE OF CITED AUTHORITIES

Page

Cases:

Banker v. Jefferson County Water Control &

Improvement Dist. No. 1, 277 S.W.2d 130

(Tex. Civ. App. — Beaumont 1955, writ ref’d

RPMS ici kiwecnedvekeckseet reise 9

Bennett v. Brown County Water Improvement Dist.

No.-1, 153 Tex. 599, 272 S.W.2d 498 (1954) ... 8,14

Delahoussaye v. City of New Iberia, 937 F.2d 144

(Sth Cir. 1991) ...... eeu elds <tind dees ewerets 6

El Paso County Water Improvement Dist. No. 1 v.

City of El Paso, 133 F. Supp. 894 (W.D. Tex.

1955) (emphasis added), reformed in part,

aff'd in part, 243 F.2d 927 (Sth Cir.), cert. denied,

355 US BIO CGT) | isin ek ois Gees eS BEES ES 10, 12

Guillory v. Port of Houston Auth., 845 S.W.2d 812

CR RORY Si ie nice CER A aa ka anh aeceaees 5, 8, 14

Jacintoport Corp. v. Greater Baton Rouge Port

Comm’n, 762 F.2d 435 (Sth Cir. 1985) ........ 6

Kamani v. Port of Houston Auth., 702 F.2d 612

CBr NO i os oie eerie 6, 11,12

Laje v. R.E. Thomason Gen. Hosp., 665 F.2d 724

Oe Ee SID oe ih iS or sce nen cee eeeseean 6, 12'

vi

Cited Authorities

Page

Lower Neches Valley Auth. v. Mann, 140 Tex. 294,

BGT UF BRO EINE é do cccclkvcccestes 8, 12, 14

Loyd v. Eco Resources, Inc., 956 S.W.2d 110

(Tex. App. — Houston [14th Dist.] 1997, no writ)

sbocececnestédeneeeheutneeetnsdetetandes 9

McCrea v. Harris County Houston Ship Channel

Navigation Dist., 423 F.2d 605 (Sth Cir. 1970) .. 11

Pillsbury Co. v. Port of Corpus Christi Auth.,

G6 F.36 163 (5GR CR. TORS? oc ivercccsadecs 6, 10, 11

Puerto Rico Aqueduct & Sewer Auth. v. Metcalf &

Eddy, Inc., 506 U.S. 139, 113 S. Ct. 684,

121 L.. BG. SR GOS CSM eD Kaw ceee ccctsiswenes 4

Regents of the Univ. of Cal. v. Doe, 519 U.S. 425,

117 S. Ct. 900, 137 L. Ed. 2d 55 (1997) .......

Sears v. Colorado River Municipal Water Dist.,

487 S.W.2d 810 (Tex. Civ. App. — Eastland 1972,

writ ref'd n.r.e.) ......... ier CCC CSTE SC Ga Bae 8,14

Spann v. City of Dallas, 111 Tex. 350, 235 S.W. 513

CEPEGD oc vcccccinecoctesseenschgstteiadeoun 9

vii

Cited Authorities

Page

Ysleta Del Sur Pueblo v. El Paso County Water

Improvement Dist. No. 1, No. P-98-CA-27

(W.D. Tex. Nov. 13, 1998), aff'd, 222 F.3d 208

(Sth Cir.), cert. denied, _US._, 121 S. Ct. 177,

148 L. Ed. 2d 121 (2000) ......------ 1, 4, 7, 11, 16

United States Constitution:

Eleventh Amendment ........-----+++eeee0+° passim

Tex. Const. art. XVI, § 59 ....-.-- eee ee eeeees passim

Tex. Const. art. XVI, § 59(a) ....--- +e eee ee eeee 2

Tex. Const. art. XVI, § 59(b) ...---- eee eee eee 3

Statutes:

28 U.S.C. § 1254 ... 0... cece cere ee eee eee ecees 1

28 U.S.C. § 1331 .. 2... e cere ese eceeeccceeees 3

28 U.S.C. § 1343 ... 2... cece creer e er eeeeeeeees 3

28 U.S.C. § 2201-02 .....--- eee eee ee ere ee eeee 3

AT ULS.C. § 2538 . 2... cece eee etree eee eeeees 3

Tex. Acric. Cope Ann. § 78.011(a) (Vernon 1995)

Vili

Cited Authorities

Page

Tex. Acric. Cope ANN. § 202.003 (Vernon 1982) . 13

Tex. HEALTH & SaFeTy Cope ANN. § 402.01 1(a)

a A Ser ey epee re re 13

Tex. WATER Cope ANN. § 12.081 (Vernon 2000) .. 14

Tex. WATER Cope ANN. § 17.026 (Vernon 2000) .. 14

Tex. WATER Cope ANN. § 36.011(a) (Vernon 2000)

eee Oe EY PL PRUE RS oe er P Ta eee Tees 13

Tex. WATER Cope Ann. § 49.066(a) (Vernon 2000)

Pee ere PO ee Pee PT ee ee ee 14

TEx. WATER Cope ANN. § 49.181 (Vernon 2000) .. 14

TEx. WATER CoDE ANN. § 49.184 (Vernon 2000) .. 14

Tex. WATER Cope AnNn. § 49.194 (Vernon 2000) .. 14

TEx. WATER Cope ANN. § 49.211(b) (Vernon 2000)

WT eER EE CSE SELLE RIS eT TIPPS ZOOL kn as.

Tex. WATER CopE ANN. § 49.327 (Vernon 2000) .. 14

Tex. WATER Cope ANN. § 51.011 (Vernon pee <6? A

TEX. WATER CopE Ann. § 51.121(b) (Vernon 2000)

ix

Cited Authorities

TEx. WATER CopE ANN. § 53.088 (Vernon Supp.

DOOU i iain odes hdeen tees ceded ss cneeis

TEx. WATER Cope ANN. § 55.021 (Vernon 1972) ..

Tex. WATER Cope ANN. § 56.011 (Vernon 1972) ..

TEX. WATER Cove ANN. § 57.011 (Vernon 1988) ..

TEx. WATER CopE ANN. § 58.011 (Vernon 1988) ..

TEx. WATER CopE ANN. § 62.021 (Vernon 1988) ..

TEx. WATER CopE ANN. § 64.001 (Vernon 1988) ..

TEX. WATER CODE ANN. § 66.011 (Vernon 1988) ..

Rule:

Fep. R. App. P. 4(a)(1)(A) ..-- eee eee eet eee

Other Authority:

Alex E. Rogers, Note, Clothing State Governmental

Entities with Sovereign Immunity: Disarray in the

Eleventh Amendment Arm-of-the-State Doctrine,

92 Cou. L. Rev. 1243 (1992) .....-----+-+:

Page

x

TABLE OF APPENDICES

Appendix A — Opinion Of The United States Court

Of Appeals For The Third Circuit Dated And Filed

ee Pe ree ye re ae

Appendix B — Order Of The United States District

Court For The Western District Of Texas, El Paso

Division Dated May 17, 2000 And Filed May 22,

Pe ey re ep re ert ain rey emer

Appendix C — Per Curiam Order Of The United

States Court Of Appeals For The Fifth Circuit

Denying Petition For Rehearing Dated And Filed

AGE Eas GE kos indeasew Fkie csc aeeeeness

Appendix D — Order Of The United States District

Court For The Western District Of Texas, Pecos

Division Dismissing Case On Eleventh

Amendment Grounds In Ysleta Del Sur Pueblo v.

El Paso County Water Improvement District

No. I Dated November 13, 1998 And Filed

PEEP EEE Oe ee reer rrr

Appendix E — Per Curiam Opinion Of The United

States Court Of Appeals For The Fifth Circuit In

Ysleta Del Sur Pueblo v. Ei Paso County Water

Improvement District No. 1 Dated April 10, 2000

seer eeeeeeeeeeeeeeevreeeeeeeeseeeeeeeeveeeeee

Page

la

lla

23a

25a

1

OPINIONS BELOW

Copies of the following lower court opinions are

reprinted in the Appendix to this Petition: —

* Southwestern Bell Tel. Co. v. City of El Paso, 243

F.3d 936 (5th Cir. 2001) (App. A); and

¢ Southwestern Bell Tel. Co. v. City of El Paso,

No. EP-98-CA-114-EP (W.D. Tex. May 17, 2000)

(unpublished order) (App. B).

The following opinions directly conflict with the lower

court opinions and are also reprinted in the Appendix to this

Petition:

* Ysleta Del Sur Pueblo v. El Paso County Water

Improvement Dist. No. 1, No. P-98-CA-27 (W.D. Tex.

Nov. 13, 1998) (unpublished) (App. D); and

© Ysleta Del Sur Pueblo v. El Paso County Water

Improvement Dist. No. 1, 222 F.3d 208 (5th Cir.),

cert. denied, _ U.S. __, 121 S. Ct. 177, 148 L. Ed.

2d 121 (2000) (App. E).

BASIS FOR JURISDICTION

The judgment of the United States Court of Appeals for

the Fifth Circuit was entered on March 19, 2001. The Fifth

Circuit denied Petitioner’s Petition for Rehearing En Banc

on April 25, 2001 (App. C). Jurisdiction is authorized by

28 U.S.C. § 1254.

Z

CONSTITUTIONAL PROVISIONS INVOLVED

This case involves the Eleventh Amendment, which states:

The Judicial power of the United States shall not

be construed to extend to any suit in law or in

equity, commenced or prosecuted against one of

the United States by Citizens of another State, or

by Citizens or Subjects of any Foreign State.

U.S. Const. amend. XI.

This case also questions the applicability of Eleventh

Amendment immunity to political subdivisions created under

Article XVI, Section 59 of the Texas Constitution. Section

59(a) provides:

The conservation and development of all natural

resources of this State, including the control,

storing, preservation and distribution of its storm

and flood waters, the waters of its rivers and

streams, for irrigation, power and all other useful

purposes, the reclamation and irrigation of its arid,

semi-arid and other lands needing irrigation, the

reclamation and drainage of its overflowed lands,

and other lands needing drainage, the conservation

and development of its forests, water and hydro-

electric power, the navigation of its inland and

coastal waters, and the preservation and

conservation of all such natural resources of the

State are each and all hereby declared public rights

and duties, and the Legislature shall pass all such

laws as may be appropriate thereto.

TEX. Const. art. XVI, § 59(a).

ee a a ey

3

Section 59(b) of the Texas Constitution provides:

There may be created within the State of Texas,

or the State may be divided into, such number of

conservation and reclamation districts as may be

determined to be essential to the accomplishment

of the purposes of this amendment to the

constitution, which districts shall be governmental

agencies and bodies politic and corporate with

such powers of government and 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).

STATEMENT OF THE CASE

The Respondent, Southwestern Bell Telephone Company

(“Southwestern Bell”), originally brought this suit for

injunctive and declaratory relief against the City of

El Paso, alleging that a city ordinance violated state utility

and federal telecommunication laws. R.80-93. Southwestern

Bell eventually settled its claims with the City of El Paso,

which is not a party to this appeal.

Southwestern Bell also sued the Petitioner, the El Paso

County Water Improvement District No. 1 (“the District”),

a political subdivision of the State of Texas, under

28 U.S.C. § 1331 (federal question jurisdiction) and 28

U.S.C. §§ 2201-02, § 1343 (Declaratory Judgment Act).

R.76. According to Southwestern Bell, the District violated

47 U.S.C. § 253a (the Federal Telecommunications Act) by

assessing a fee for applications to cross or use the District’s

rights-of-way. R.76, 99.

4

On December 1, 1999, the District moved to dismiss

Southwestern Bell’s claims based on Eleventh Amendment

immunity, urging the district court to apply Ysleta Del Sur

Pueblo v. El Paso County Water Improvement Dist. No. 1,

No. P-98-CA-27 (W.D. Tex. Nov. 13, 1998) (unpublished),

which holds that the District is immune from suit in federal

court as an arm of the State of Texas. R.536-41, 641. On

April 10, 2000, the Fifth Circuit affirmed the Ysleta order of

dismissal in an initially unpublished opinion. Ys/eta Del Sur

Pueblo v. El Paso County Water Improvement Dist. No. 1,

222 F.3d 208 (Sth Cir.), cert. denied, U.S.__,121S.Ct.

177, 148 L. Ed. 2d 121 (2000).

Nonetheless, the district court in this case rejected Ysleta

and, on May 17, 2000, denied the District’s motion to dismiss

based on Eleventh Amendment immunity. R.2032-41.

On June 9, 2000, the District timely appealed based on

the collateral order doctrine. R.2052; see also Fen. R.

App. P. 4(a)(1)(A); Puerto Rico Aqueduct & Sewer Auth. v.

Metcalf & Eddy, Inc., 506 U.S. 139, 147, 113 S. Ct. 684,

689, 121 L. Ed. 2d 605 (1993). On August 9, 2000, the Fifth

Circuit ordered that its opinion in Ys/eta be published.

Despite this controlling authority, on March 19, 2001,

another panel of the Fifth Circuit issued a published opinion

affirming the district court’s order in this case and finding

the District was not protected by Eleventh Amendment

immunity. On April 25, 2001, the Fifth Circuit denied the

District’s petition for rehearing en banc.

5

REASONS FOR GRANTING THE WRIT

L The Fifth Circuit Panel’s Misunderstanding of the

) Eleventh Amendment Immunity Test Destroys Stare

Decisis and Threatens the Power of States to Shield

Their Instrumentalities from Suit in Federal Court.

The Fifth Circuit panel that rendered the judgment in

this case erred when it retracted the District’s status as an

arm of the State of Texas entitled to Eleventh Amendment

immunity solely because the trial court and a different Fifth

Circuit panel did not apply a multi-factor test. Where the

nature of the political subdivision is clear from state law

providing for its creation, there is no necessity or reason to

apply a multi-factor test. And once the nature of the political

subdivision is established under federal law, there is no need

to apply and reapply the multi-factor test each time the

political subdivision is named as a defendant in a federal

lawsuit.

The District is an arm of the State of Texas as an agency

created and operated under Article XVI, Section 59 of the

Texas Constitution. See Guillory v. Port of Houston Auth.,

845 S.W.2d 812, 814 (Tex. 1993). Like hundreds of other

political subdivisions created under the same constitutional

provision, the District has enjoyed — and should continue

to enjoy — Eleventh Amendment immunity from suit in

federal court. Although the Fifth Circuit had consistently

recognized Eleventh Amendment immunity for political

subdivisions created under Article XVI, Section 59, the Fifth

Circuit panel in this case diverted from its own precedent,

creating a new and unanticipated direction in the law of

Eleventh Amendment immunity.

6

Before the panel decision was rendered in this case, the

Fifth Circuit routinely applied a multi-factor test, but only

to determine whether political subdivisions formed under

the laws of other states or under different provisions of Texas

law possessed Eleventh Amendment immunity. See, e.g.,

Delahoussaye v. City of New Iberia, 937 F.2d 144, 147

(5th Cir. 1991) (considering six factors to Louisiana political

subdivision); Jacintoport Corp. v. Greater Baton Rouge

Port Comm'n, 762 F.2d 435, 438-42 (Sth Cir. 1985) (same);

Laje v. R.E. Thomason Gen. Hosp., 665 F.2d 724, 727 (Sth

Cir. 1982) (applying factors to Texas political subdivision).

Other circuits frequently apply a multi-factor test, although

the number of factors is far from uniform. See Alex E.

Rogers, Note, Clothing State Governmental Entities with

Sovereign Immunity: Disarray in the Eleventh Amendment

Arm-of-the-State Doctrine, 92 CoLum. L. Rev. 1243, 1269-

71 (1992) (noting the number of factors considered by the

circuits ranges anywhere from two to nine).

In addition to applying its own multi-factor test, the Fifth

Circuit acknowledged that when state law clearly classifies

a political subdivision as an arm of the state, it is unnecessary

to consider the multi-factor test before applying Eleventh

Amendment immunity to that political subdivision. See, e.g.,

Kamani v. Port of Houston Auth., 702 F.2d 612, 613 (Sth

- Cir. 1983). Likewise, the Fifth Circuit acknowledged that

when a federal court examined a political subdivision’s status

and determined its right to Eleventh Amendment immunity,

it was thereafter unnecessary to revisit the factors that

initially supported application of the Eleventh Amendment.

See, e.g., Pillsbury Co. v. Port of Corpus Christi Auth.,

66 F.3d 103, 104-05 (Sth Cir. 1995).

7

The Fifth Circuit specifically declined to routinely apply

the multi-factor test when discussing the Eleventh

Amendment status of Article XVI, Section 59 political

subdivisions like the District:

Fortunately, the Fifth Circuit’s apparent “bright-

line” test established in Pillsbury makes it

unnecessary for this Court to engage in either the

Delahoussaye/Jacintoport or the Hess [v. Port

Auth. Trans-Hudson Corp., 513 U.S. 30, 115

S. Ct. 394, 130 L. Ed. 2d 245 (1994)] analyses to

determine whether EPCWID is an entity whose

nexus with the state entitles it to assert sovereign

immunity. . . . The Court will therefore apply the

Kamani/Guillory/Pillsbury approach regarding

entities created under Article XVI, section 59

of the Constitution of the State of Texas in

this case. Thus, EPCWID is entitled to Eleventh

Amendment immunity by virtue of how it was

created and is operated.

See Ysleta Del Sur Pueblo v. El Paso County Water

Improvement Dist. No. 1, No. P-98-CA-27, slip op. at 10

(W.D. Tex. Nov. 13, 1998) (unpublished), aff'd, 222 F.3d

208 (5th Cir.), cert. denied, _U.S.__, 121 S. Ct. 177, 148

L. Ed. 2d 121 (2000).

A bright-line test benefits judicial efficiency and

provides fairness and predictability for political subdivisions

that are created and operated under similar statutory or

constitutional provisions. This result also satisfies this

Court’s observation that the most critical element of Eleventh

Amendment immunity is a state’s own characterization of

its agency or political subdivision. See Regents of the Univ.

8

of Cal. v. Doe, 519 U.S. 425, 430 n.5, 117 S. Ct. 900,

903 n.5, 137 L. Ed. 2d 55 (1997).

The Texas constitutional provision — Article XVI,

Section 59 — authorizes the creation of a variety of political

subdivisions that perform only state governmental functions

for the conservation and reclamation of the state’s precious

natural resources. See generally Bennett v. Brown County

Water Improvement Dist. No. 1, 153 Tex. 599, 607, 272

S.W.2d 498, 502-03 (1954). Districts created under Article

XVI, Section 59 “are all designed to effectuate the same

objectives, that is, the conservation and utilization of the

natural resources of the state in which all the public are

interested.” Sears v. Colorado River Municipal Water Dist.,

487 S.W.2d 810, 811 (Tex. Civ. App. — Eastland 1972,

writ ref’d n.r.e.) (emphasis added); see also TEX. WATER CODE

ANN. § 49.211(b) (Vernon 2000) (extending the District’s

authority beyond the boundaries of E] Paso County). The

Texas Supreme Court has stated that a conservation and

reclamation district is “a State governmental agency.” Lower

Neches Valley Auth. v. Mann, 140 Tex. 294, 299-300,

167 S.W.2d 1011, 1014 (1943).

Relying on and reaffirming its decision in Bennett, the

Texas Supreme Court held in Guillory v. Port of Houston

Authority, 845 S.W.2d 812, 814 (Tex. 1993), that Article

XVI, Section 59 political subdivisions are entirely

governmental in function:

In Bennett we held that governmental units created

under Article XVI, Section 59 of the Texas

Constitution are entirely governmental in function.

_Water improvement districts and other agencies

created under this constitutional provision are

9

different from municipalities in that the former

are created by the legislature for general public

purposes, while the latter are created by consent

of their inhabitants.

More recently, in Loyd v. Eco Resources, Inc., 956 S.W.2d

110, 122 n.4 (Tex. App. — Houston [14th Dist.] 1997, no

writ), the court defined “governmental function” as “an

activity that is carried out by an arm of the state for the

purpose of serving the general public.” The court also stated,

“Water districts and like entities created under section 59 of

article XVI of the Texas Constitution can only perform

governmental functions.” Jd. at 122 (emphasis added). Thus,

by performing governmental functions, water districts and

other political subdivisions created under Article XVI,

Section 59 are arms of the state. See id.

In discharging their governmental functions, Article

XVI, Section 59 water districts, “as agents of the State, are

essentially exercising the State’s and their own police power,

which has been defined as a ‘grant of authority from the

people to their governmental agents for the protection of the

health, the safety, the comfort and the welfare of the public.’ ”

Banker v. Jefferson County Water Control & Improvement

Dist. No. 1,277 S.W.2d 130, 133 (Tex. Civ. App. - Beaumont

1955, writ ref’d n.r.e.) (quoting Spann v. City of Dallas, 111

Tex. 350, 235 S.W. 513, 515 (1916)). This grant of authority

and governmental function is particularly true regarding the

history, formation, and nature of the District in this case:

The plaintiff District was established in 1917

under the authority of a Texas Statute. Later it

was converted into a conservation and reclamation

district under the Constitution of Texas,

a

a LSet

10

[Tex. Const. art. XVI, § 59], but without any

change in name. Under the statute, it has a broad

right of eminent domain and the authority hereby

conferred shall authorize and empower such

districts to condemn all lands, private and public,

for the purpose herein indicated, beyond the

boundary of such districts and in any county

within the State of Texas, and it also has the power

of taxation. In fact, such districts and various other

similar districts are not classed with municipal

corporations, but are held to be political

subdivisions of the State, performing

governmental functions, and standing upon the

same footing as counties and other political

subdivisions established by law.

It is not only an arm of the State, but is

fashioned to perform public service and duties -

of high importance in the welfare of the people

of Texas.

El Paso County Water Improvement Dist. No. 1 v. City of

El Paso, 133 F. Supp. 894, 914 (W.D. Tex. 1955) (emphasis

added), reformed in part, aff'd in part, 243 F.2d 927 (Sth

Cir.), cert. denied, 355 U.S. 820 (1957).

It seems beyond dispute, in light of Texas state law, that

the District is an arm of the State of Texas immune from

suit in federal court. See Pillsbury Co. v. Port of Corpus

Christi Auth., 66 F.2d at 104 (holding that a political

subdivision which is “a creature of state law and a political

subdivision of the State of Texas” is “entitled to Eleventh

Amendment immunity”). Furthermore, under federal

precedent, the District is an arm of the State of Texas

11

immune from suit in federal court. See Ysleta Del Sur Pueblo

v. El Paso County Water Improvement Dist. No. 1,222 F.3d

at 208; Kamani v. Port of Houston Auth., 702 F.2d at 613.

Prior to this case, the Article XVI, Section 59

conservation and reclamation districts had enjoyed Eleventh

Amendment immunity from suit in federal court consistent

with this Court’s opinion in Regents of the University of

California v. Doe, 519 U.S. at 430 n.5, 117 S. Ct. at 903 n.5.

See, e.g., Pillsbury Co. v. Port of Corpus Christi Auth.,

66 F.3d at 104 (recognizing the unique status of political

subdivisions created ander Article XVI, Section 59 of the

Texas Constitution); Aamani v. Port of Houston Auth., 702

F.2d at 613 (characterizing a port authority as “a creature of

state law” entitled to immunity from suit under the Eleventh

Amendment); McCrea v. Harris County Houston Ship

Channel Navigation Dist., 423 F.2d 605, 607 (Sth Cir. 1970)

(defining a navigation district created under Article XVI,

Section 59 to be “a creature of state law’’). The District has

enjoyed Eleventh Amendment immunity as an Article XVI,

Section 59 political subdivision. See, e.g., Ysleta Del Sur

Pueblo v. El Paso County Water Improvement Dist. No. 1,

222 F.3d at 208.

In this case, however, a panel of the Fifth Circuit

erroneously concluded that the multi-factor test must be

applied in every instance where a defendant asserts Eleventh

Amendment immunity from suit in federal court. This

conclusion is a radical departure from Fifth Circuit precedent,

and it ignores state law recognizing that Article XVI, Section

59 political subdivisions are arms of the state of Texas. More

particularly, the Fifth Circuit’s opinion erroneously retracts

the District’s previously existent Eleventh Amendment

immunity.

12

Significantly, this Court has cautioned that the

determination of Eleventh Amendment immunity is a

question of federal law, “[b]ut that federal question can be

answered only after considering the provisions of state law

that define the agency’s character.” Regents of the Univ. of

Cal. v. Doe, 519 U.S. at 430 n.5, 117 S. Ct. at 903 n.5;

see also Laje v. R.E. Thomason Gen. Hosp., 665 F.2d 724,

727 (Sth Cir. 1982) (“A federal court must examine the

particular entity in question and its powers and

characteristics as created by state law to determine whether

the suit is in reality a suit against the state itself.”). It is

pointless to require the repeated application of a multi-factor

test each time a particular political subdivision claims

Eleventh Amendment immunity, particularly when the Fifth

Circuit has determined the nature of the political subdivision.

It is also pointless to apply the multi-factor test when the

state constitution clearly defines the character of the political

subdivision at issue. The decisions of this Court do not

require the inconsistent, unpredictable results generated by

the Fifth Circuit’s new approach to Eleventh Amendment

immunity.

II. The Federal Issue Is Important: Hundreds of Political

Subdivisions Throughout Texas Will Improperly Be

Denied Eleventh Amendment Immunity.

The constitutional subdivisions created under Article

XVI, Section 59 are state agencies that have long-relied on

the Texas Supreme Court and the Fifth Circuit to define the

scope of their duties and immunities. See, e.g., Lower Neches

Valley Auth. v. Mann, 140 Tex. at 299-300, 167 S.W.2d at

1014; Kamani v. Port of Houston Auth., 702 F.2d at 613;

El Paso County Water Improvement Dist. No. 1 v. City of

El Paso, 133 F. Supp. at 914. Any unpredictable course in

13

the development of Eleventh Amendment law affects not

only the District, but also countless governmental

subdivisions created under Article XVI, Section 59 of the

Texas Constitution. See, e.g., TEX. AGRIC. CODE ANN.

§ 78.011(a) (Vernon 1995) (noxious weed control district);

id. § 202.003 (Vernon 1982) (wind erosion district);

Tex. HEALTH & SAFETY Cope ANN. § 402.011(a) (Vernon

1992) (radioactive waste disposal authority); TEx. WATER

Cope ANN. § 36.011(a) (Vernon 2000) (groundwater

conservation district); id. § 51.011 (Vernon 2000) (water

control and improvement district); id. § 53.088 (Vernon

Supp. 2001) (fresh water supply district); id. § 55.021

(Vernon 1972) (water improvement district); id. § 56.011

(Vernon 1972) (drainage district); id. § 57.011 (Vernon 1988)

(levee improvement district); id. § 58.011 (Vernon 1988)

(irrigation district); id. § 62.021 (Vernon 1988) (navigation

district); id. § 64.001 (Vernon 1988) (water import authority);

id. § 66.011 (Vernon 1988) (storm water control district).

The Fifth Circuit’s opinion in this case, which requires

application of the multi-factor test even in instances where

the Texas Constitution clearly describes the character of the

political subdivision at issue, is contrary to this Court’s

direction and has produced an absurd result: In one case, the

District is protected by Eleventh Amendment immunity; but,

in another case, it is denied the same protection. In future

lawsuits, will another Fifth Circuit panel make yet another

determination of the District’s Eleventh Amendment

immunity? Given the large number of Article XVI, Section

59 subdivisions and the constant threat of suit in federal

courts, the question presented by this Petition is critical to

the law of Eleventh Amendment immunity, not merely in

Texas.

4

III. The District Qualifies for Eleventh Amendment

Immunity Even If the Multi-Factor Test is Applied.

A political subdivision created under Article XVI,

Section 59 is entitled to Eleventh Amendment immunity

because the Texas Constitution establishes such political

subdivisions as arms of the State of Texas with statewide,

governmental duties. Nevertheless, even if the Court were

to strictly apply the multi-factor test, the District would

qualify for Eleventh Amendment immunity. Whether a

particular state agency is an arm of the state entitled to

Eleventh Amendment is a question of federal law “answered

only after considering the provisions of state law that define

the agency’s character.” Regents of the Univ. of Cal. v. Doe,

519 U.S. at 430 n.5, 117 S. Ct. at 903 n.5. Under Texas state

law, the District is essentially a state agency. See Guillory

v. Port of Houston Auth., 845 S.W.2d at 814; Bennett v.

__ Brown, 272 S.W.2d at 503; Lower Neches Valley Auth. v.

Mann, 167 S.W.2d at 1014; Sears v. Colorado River

Municipal Water Dist., 487 S.W.2d at 811.

The State of Texas maintains strong control over the

District. See, e.g., TEX. WATER CoDE ANN. § 12.081 (Vernon

2000) (describing general supervision); id. § 49.194

(describing financial supervision). The state does not directly

fund the District, but the state determines the feasibility of

any District project and supervises the issuance of bonds.

Id. § 49.181, § 49.184. Furthermore, the state has the general

obligation to repay bonds issued at the District’s request by

the Water Development Board. Jd. § 17.026. Upon dissolution,

the District’s assets escheat to the state. Jd. § 49.327.

While the District may own property and sue or be sued

in its own name (id. § 49.066(a), § 49.211(b)), the District

| eee

exists solely — pursuant to Article XVI, Section 59 — to

serve the political mandate of “preservation and conservation

of all natural resources of the state.” Jd. § 51.121(b). The

District’s authority is not limited to the boundaries of

El Paso County. Jd. § 49.211(b).

If the multi-factor test were applied to the District (which

the District maintains is not necessary), then the facts

supporting those factors would collectively and conclusively

demonstrate that the District is an arm of the State of Texas

entitled to Eleventh Amendment immunity. Both the trial

court in this case and the panel of the Fifth Circuit that

considered this appeal erred, to the detriment of the District,

Eleventh Amendment law, and the right of states to determine

the status of the political subdivisions they create.

16

CONCLUSION

For the reasons stated herein, the Petition for Writ of

Certiorari should be granted. Alternatively, the Court should

summarily reverse the judgment of the Fifth Circuit and

render judgment in accordance with Ysleta Del Sur Pueblo

v. El Paso County Water Improvement Dist. No. 1,222 F.3d

208 (Sth Cir.), cert. denied, U.S.__, 1218S. Ct. 177, 148

L. Ed. 2d 121 (2000).

Respectfully submitted,

W. WENDELL HALL

Counsel of Record

FULBRIGHT & JAWORSKI L.L.P.

300 Convent Street

Suite 2200

_San Antonio, Texas 78205

(210) 224-5575

JAMES M. SPEER, JR.

ATTORNEY AT LAW

~ 300 E. Main Street

Suite 1440

El Paso, Texas

(915) 534-7393

LisA M. POWER

Ex Paso CouNTY WATER

IMPROVEMENT DistricT No. 1

294 Candelaria

E] Paso, Texas 79907

(915) 859-4186

Attorneys for Petitioner