Untitled Texas Attorney General Opinion ( 1939 )

Honorable A. E. Hickerson
County Attorney
Montgomery Cm&y
Conroe, Texas
Dear Mr. Hickerson: Opinion No. O-1707
Re: Selection and Desiguation of
Depository for San Jacinto
River Conservation end Reclam-
tion District.
We acknowledge receipt of your communication dated November I:;,1939,
in which you request the opinion of this department on the following questions
which we quote from your letter:
(1) "Should the authorities ofthe San Jacinto River Con-
servation and Reclamation District be required to select a de-
pository for funds, or should they use the same depository a8
the county and county txhoole."
(2) ",I8the Comnieeioners' Court in any way'responsible
for the selection of this depository."
In considering the above questions we have carefully read and studied
House Bill No. 832, passed by the Forty-fifth Legislature in ~1937,creating
the San Jacinto River Conservation and Reclamation District under authority
of Section 59 of Article ~6 of the Constitution of the State of Texas and de-
fining the powers and duties of the said district. We have also read and studied
House Bill No. 941 and House Bill No. 1079, passed by the Forty-sixth Legisla-
ture in 1939, the same being amendments to House Bill No. 832.
Neither of the above mentioned acts of the Legislature specifically
authorize or require the San Jacinto River Conservation and Recl+uation Dis-
trict to select and designate a depository for it8 funds. It will be noted,
however, that Section 6 of House Bill No. 832, Regular Session, Forty-fifth,
Legislature, after providing for the appointmentof a teniporaryboard of di-
rectors and the election of officers, requires that:
"Each of esid temporary directors shall take and subscribe
to an oath of office, similar to the oath required of County
Commissioners, and shall execute bond in the sun of Five Thou-
sand Dollars ($5,000.00) payable to the District, the suffi-
ciency of which bonds shall be determined by the State Board of
-
Honorable A. E. Bicker-son,Page 2 (O-1707)
Water Engineers, which bond after being recorded in the offi-
cialbond records of the county in which the district maintains
its office shall be deposited with the depository selected and
approved for the deposit of the fund.6of the District."
(Emphasis added.)
It IS manifest, we think, from the above that the legislative act
creating the San Jacinto River Conservation and Reclamation District and de-
fining its powers and duties contemplated that a depository should be selected
and designated for the deposit of the funds of the District and the official
bonds of its directors. This, no doubt, would be true even in the absence
of the above quoted provision a6 it has always been the policy of the Legis-
lature to require each political subdivision of the State handling public funds
to select and designate a depository for the deposit and safe keeping of its
funds, and to require the depository selected to give a good and sufficient
bond as security. State Bank of Commerce vs. United States Fidelity & Guaranty
Company, 28 S.W. (2d) 184, from which we quote a6 follows:
"A sound public policy requires that the State should take
special security from every one who collects or handles public
funas. That rule seems to began old one in this State, and IS
applied in all cases without exception."
Section 2 of House Bill No. 832, supra, reads as follows:
"The San Jacinto River Conservation and Reclamation Dis-
trict is created as a governmental agency, a body politic and
corporate, vested with all the authority as such under the
Constitution and laws of the State; and shall have and be rec-
ognized to exercise all of the powers of such governmental
agency and body politic and corporate as expressly authorized
in the provisions of the Constitution, Section 59 of Article
XVI, for Districts created to conserve, control, and utilize
to beneficial service the storm and flood waters of rivers
and streams of the State, or such powers a6 may be contempla-
ted and imnlied by the uurooses of this provision of the Con-
stitution,-and as-may be conferred by General Law, and in the
provisions of this Act; and shall have and be recoepized to
exercise all the rights and powers of an independent govern-
mental agency, body politic and corporate, to formulate any
and all clans deemed essential to the operation of the Dis-
trict anh for its administration in the control, storing;
preservation, and distribution to all useful purposes of the
storm and flood waters of the San Jacinto River and its tribu-
tary streams; and a6 such District, shall have and be recog-
nized to exercise such authority and power of control and
regulation over such storm and flood waters of the San Jacinto
River and its tributaries as may be exercised by the State of
Texas, subject to the provisions of the Constitution and the
Acts of the Legislature." (Emphasis added.)
Hocrrable A. E. Hickerson, Page 3 (O-1707)
It will be noted that Section 6 of said House Bill No. 832 provides
that the San Jacinto River Conservation and Reclamation District shall have
"all and singular, the powers, duties, functions, and to observe procedures
insofar as the same may be applicable and practicable, to accomplish the pur-
poses of this Act, as is provided by Chapter 25 of the General Laws of the
Thirty-ninth Legislature, Regular Session, and the several amendments thereof."
It appears, therefore, that the San Jacinto River Conservation and
Reclamation District has, in addition to the powers set out in House Bill No.
832, and its amendments, supra, all of the powers set out in Chapter 25 of
the General Laws of the Thirty-ninth Legislature, Regular Session (Article
7880), and should follow the procedure therein set out insofar as the same
may be applicable and not in conflict with the specific terms and provisions
of said House Bill NO. 832, and its amendments.
Chapter 25 of the General Laws of the Thirty-ninth Legislature, Regu-
lar Session, carried in Vernon's Annotated Civil Statutes as Article 7880,
is a very comprehensive statute, containing in excess of one hundred and fifty
sections, dealing with water control and improvement districts, in general.
Section 113 of Article 7860 provides that a depository shall be selected for
such districts by the directors thereof, "in accordance with the provisions
of law for the selection of depositories for counties in this State, and the
duties of such depo$itory and the bond and securities to be given thereby shall
be the same as provided by law for county depositories, except as herein other-
wise expressly provided." This Article further requires the depository so
selected to furnish a good and sufficient bond to fully protect the district
and guarantee the safe keeping of its funds and directs how the funds shall
be kept and paid out.
From the above we have concluded that the San Jacinto River Conserva-
tion and Reclamation District should select and designate a depository for the
safe-keeping of its funds and official bonds, a+ should not rely on the county
depository for this purpose. If this is not done, the funds of the Conserva-
tion and Reclamation District will be unprotected, as the county and school
depository bond only protects those funds belonging to and dsposited in the
depository by the respective political subdivisions. Hale County, Texas, et al.
vs. American Indemnity Company, et al., 63 Fed. (2d) 275.
Inasmuch as the legislative act creating the San Jacinto River Con-
servation and Reclamation District gives to the district all and singular the
powers, duties and functions set out in Chapter 25 of the General Laws of the
Thirty-ninth Legislature, Regular Session, and the several amendments thereto
(Article 7860, Revised Civil Statutes of Texas), and charges said district
with the duty of observing the procedure provided for in said Act, insofar
as the same may be applicable and practicable, it is our opinion that it would
be proper for, and the said Conservation and Reclamation District should fol-
low the procedure set out in Chapter 25 of the General Laws of the Thirty-Ninth
Legislature, Regular Session, for the selection of a district depository.
I . .
Honorable A. E. Hickerson, Page 4 (O-1707)
In answer to your first question, it is the opinion of this depart-
ment that the directors of the San Jacinto River Conservation and Reclamation
District should select and designate a depository for its funds and in so do-
ing should follow the procedure provided for in Article 7880, Section 113,
Revised Civil Statutes of Texas, the same being a part of Chapter 25, General
Laws, Thirty-ninth Legislature, Regular Session.
In answer to your second question, it is the opinion of this depart-
ment that the Commissioners' Court is in no way responsible for the selection
of the depository for the Conservation and Reclamation District. The duty
of selecting the depository rests solely on the directors of the district.
Yours very truly
APPROVED DEC 9, 1939 A!iTOREEIGENERALOFTEXAS
/s/ Gerald c. Msnn
ATTORNEY GF.NERALOF TEXAS By /s/ Tom D. Rowell, Jr.
Tom D. Rowell, Jr.
Assistant
TDR:FG:Ul
APPROVED
OPINION
col.Qmrl!EE
BY /s/ BWB
CHAIRMAN