Plaintiffs filed this complaint for declaratory and injunctive relief on their own behalf and on behalf of a class of persons similarly situated 'composed of all those persons whose lands were excluded from the Defendant Water Districts without actual personal notice to the owners or persons in possession of such lands . . . who do not want their lands excluded from the Defendant Water Districts.' They specifically assert the unconstitutionality of article 8280-3.2, Vernon's Tex.Ann.Civ.St., under which the action of the defendant water districts occurred and pursuant to which constructive public notice of a meeting of the district for the purpose of excluding certain lands from the district was made by publication and posting, and not by personal notice to the members of the class.1

On October 28, 1971, the board of directors of defendant Hidalgo County Water District No. 2 ordered the exclusion of 36 rural subdivisions in which plaintiffs and their class reside. On September 6, 1972, the board of directors of defendant Hidalgo and Cameron Counties Water Control and Improvement District No. 9 excluded 40 of such subdivisions. These are very large water districts situated in the most populous regions of the Lower Rio Grande Valley at the southernmost tip of Texas.

Plaintiffs complain that they have been deprived of their right to vote for members of the board of directors of the defendant water districts by the districts' action in dxcluding the areas is which they live from the territorial limits of the defendant water districts. Under Vernon's Ann.St. Texas Constitution, article 6, 2, a person must reside in the district in which he intends to vote. Plaintiffs desire to assert the right to vote for directors so that eventually they may be able, through directors elected by them, to change the policy of the defendant water district from one primarily devoted to irrigation for agriculture to one also engaged in providing domestic water and sanitation services for the poor unincorporated rural areas (colonias) in which they and their class reside. Thus exclusion of the territory in which they live by action of defendant boards, pursuant to the constructive notice provisions of article 8280-3.2, is, they assert, an unconstitutional deprivation of their right to vote, contrary to the Fourteenth Amendment and the due process clause thereof.

Plaintiffs contend that the constructive notice contemplated by article 8280-3.2 fails to comply with procedural standards required by the due process clause when political subdivisions of a state, such as the water districts here, exclude a substantial number of the residents of those districts thereby terminating their political rights within the subdivision, including any rights to receive services from these political units. They cite decisions of the Supreme Court on the issue of the sufficiency of notice under the due process clause, such as the leading case of Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S. Ct. 652, 94 L. Ed. 865 (1950); also Schroeder v. City of New York, 371 U.S. 208, 83 S. Ct. 279, 9 L. Ed. 2d 255 (1962), and others. They contend that a real opportunity to be heard must be offered by a water district which proposes to de-annex the property of numerous citizens from the limits of the district. They aver that since 1920, in the case of San Juan District (Water District No. 2), and since 1928, in the case of Mercedes District (Water District No. 9), the plaintiffs and their class have been vested with the right to vote and participate in the political affairs of both districts and that these rights have now been divested by the defendant water districts with only the constructive notice to affected citizens by publication and posting.

Plaintiffs assert that none of the plaintiffs or their class received any actual notice of the hearings which were to consider exclusion of their communities from the districts; that the predominant language of most of the residents of the colonias is Spanish and many do not read, write or understand the English language; that the names and addresses of the persons affected by the exclusion were readily available in the public records of the Hidalgo County Tax Assessor-Collector and it would have been possible to have copied these names and addresses from the tax records so that actual notice could have been given. Plaintiffs contend, therefore, that insufficiency of notice has deprived them of their right to a hearing.

On the other hand, the defendant water districts contend that the type of notice complained of in this case is universally provided in similar proceedings in practically every state in the Union and that it would be a practical impossibility to give the kind of notice which plaintiffs contend is minimally required by the due process clause. They point out that similar notice provisions have been upheld by the Texas Supreme Court in Tarrant County Water Control & Improvement District No. 1 v. Pollard, Attorney General, 118 Tex. 138, 12 S.W.2d 137 (1929); Rutledge v. State, 117 Tex. 342, 7 S.W.2d 1071 (1928) and Trimmier v. Carlton, 116 Tex. 572, 296 S.W. 1070 (1927). Defendants also contend that the cases cited by plaintiffs, such as Mullane and Schroeder, supra, are not authority for the proposition that in this type of exclusion proceedings on property from the boundaries of a water control district, personal notice by mail is required nor is the type of notice one required in judicial proceedings.

Defendants cite the leading case of Hunter v. Pittsburgh, 207 U.S. 161, 28 S. Ct. 40, 52 L. Ed. 151 (1907), to the effact that the territory over which political subdivisions of the state shall exercise authority rests in the absolute discretion of the state. This is true, defendants argue, unless there is clear encroachment upon the provisions of the Fourteenth Amendment. Thus they conclude that the determination of what property should originally be included in water control and improvement districts or subsequently excluded was a political right clearly reserved to the State of Texas by the provisions of the Tenth Amendment. See Johnson v. Hood, 5 Cir., 1970, 430 F.2d 610.

Defendants conclude that there is no substantial constitutional question presented as to require convening of a three-judge court and accordingly that the district court was correct in so holding and in dismissing plaintiffs' suit.

This case is a companion case to Juan Fonseca et al. v. Hidalgo County Water Improvement District No. 2 et al., decided this day, 496 F.2d 109, where we held that another constitutional attack on a Texas statute was not insubstantial under the tests correlated by the Supreme Court in the recent decision in Goosby v. Osser, 409 U.S. 512, 93 S. Ct. 854, 35 L. Ed. 2d 36. See also our recent decision in Sands v. Wainwright, 5 Cir., 1973, 491 F.2d 417. We are likewise unable to say here that the constitutional attack of plaintiffs is 'essentially fictitious,' 'wholly insubstantial,' 'obviously frivolous,' 'obviously without merit,' or that 'its unsoundness so clearly results from the previous decisions of this (the Supreme) court as to foreclose the subject and leave no room for the inference that the question sought to be raised can be the subject of controversy.'

It is necessary, therefore, that this case be remanded to the district court, for the organization of a three-judge court, as required by 28 U.S.C. 2281.

Reversed and remanded.