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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2001
- **Citation:** 534 U.S. 891

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_2150%3A1. Public record. Not legal advice.