Untitled Texas Attorney General Opinion ( 1990 )

May 10, 1990
Honorable John Whitmire Opinion No. ``-1173
Chairman
Health And Human Services -Re: Authority of the Spencer
Committee Road public Utility District
P. 0. Box 12068 to buy land for a public park
Texas State Senate (RQ-1814)
Austin, Texas 78711
Dear Senator Whitmire:
You have asked us to address the following question:
May a municipal utility district, operating
under chapter 54 of the Texas Water Code
contract for the purchase of real property t;
be used as a public park within the district
by making payments under the contract from
taxes where voters in the district have ap-
proved the same?
Municipal utility districts are created under and
subject to the authority, conditions, and restrictions of
article XVI, section 59, of the Texas Constitution. Water
Code 5 54.011.
A municipal utility district can exercise no authority
that has not been clearly granted by the legislature.
J c
QU' C 'r:s, 602 S.W.Zd 262 (Tex.
1980). The legislature can only grant such a district such
powers and rights that come within the contemplation of
article XVI, section 59 (the Conservation Amendment), or
other applicable provisions of the constitution. Deason v.
Oranae Countv Water Control & Imnrovement Dist. No. 1, 244
S.W.2d 981 (Tex. 1952).
In 1980, the Austin Court of Civil Appeals considered
whether a municipal utility district could provide park and
recreational facilities (including a community center, three
swimming pools, four tennis courts, and a club house) under
the provisions of Texas Water Code section 54.201(b)(7). At
that time, section 54.201 read in its entirety:
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Honorable John Whitmire - Page 2 (JM-1173)
(a) A district shall have the functions,
powers, authority, rights, and duties which
will permit accomplishment of purposes for
which it was created.
(b) A district is authorized to purchase,
construct, acquire, own, operate, maintain,
repair, improve, or extend inside and out-
side its boundaries any and all works, im-
provements, facilities, plants, equipment,
and appliances p.ecessarv to accomolish the
purooses of :its creatipn including all
works, improvements, facilities, plants,
equipment, and appliances incident, helpful,
or necessary to:
(1) supply water for municipal uses,
domestic uses, power, and commercial
purposes and all other beneficial uses or
controls;
(2) collect, transport, process,
dispose of, and control all domestic,
industrial, or communal wastes whether in
fluid, solid, or composite state;
(3) gather, conduct, divert, and
control local storm water or other local
harmful excesses of water in a district;
(4) irrigate the land in a district:
(5) alter land elevation in a dis-
trict where it is needed:
(6) navigate coastal and inland
waters of the district: and
(7) provide oarks and recreational
facilities for e inhabitants in the
district. (Emphaiis added.)
&g Acts 1971, 62d Leg., ch. 84, at 775.
Because of the language limiting the district's
authority to that Qecessary to accomplish the purposes of
its creation," and notwithstanding the statutory provision
expressly authorizing districts to acquire all facilities
necessary to "provide parks and recreational facilities" for
the inhabitants in the district, the court said:
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Honorable John Whitmire - Page 3 (JM-1173)
We have concluded that the proposed facili-
ties, which include a community center, three
swimming pools, four tennis courts, and a
clubhouse, do not further a purpose of
section 54.012 of the Water Code pr of
(Emphasis added.)
IQ.rris Countv Water Control h m m . V.
3-n I 593 S.W.Zd 852, 855 (Tex. Civ.
APP. - Austin 1980, no writ); & Attorney General Opinion
H-491 (1975) (recreational use of waters and forests, "once
developed and conserved," may be within contemplation of the
constitution).
The following year, in 1981, this office was asked
whether the construction of certain park and recreation
facilities by the Upper Guadalupe River Authority, "on its
soon to be completed reservoir," would be in furtherance of
the purposes for which the district was created. The
"facilities" were reservoir areas to be landscaped: areas to
be made suitable for swimming, parking, restrooms, boat
ramps, picnic tables, lighting, roads, and fencing. (The
resulting opinion did not explicitly confirm that payment
was to be made from taxes, but, because of the holding of
the opinion, that consideration is not relevant here.)
Attorney General Opinion MW-313 (1981) observed in that
connection:
The reservoir in this case is being
constructed primarily to control and store
water on the Guadalupe River as a surface
water supply for the city of Kerrville, in
compliance with the constitutional purposes
of the district and the statutory priorities
of water usage. One secondary use of the
reservoir as enumerated by the legislature is
recreation and pleasure.
The opinion read the Rarris Counts Water Control and
IBID Vement District case as saying that "recreational
facZities per se" are not prohibited, but
are limited by the standard set out by the
court to-wit: '[t]he power to construct re-
creational facilities must be exercised to
further a purpose of section 54.012 [Texas
Water Code] to be justified and constitu-
tional.' L at 854. The court had pre-
viously stated that '[slection 54.012 of the
Texas Water Code, entitled "Purposes of a
P. 6185
Honorable John Whitmire - Page 4 (JM-1173)
District," parallels the language of article
XVI, 5 59(a)(Texas Constitution).* & at
ae of the oww
. .
betwee the recreational facilities an d the
const iZuti nal nuroo se of the district. (Em-
phasis addzd.)
Attorney General Opinion MW-313 at 3. The attorney general
held construction of the facilities permissible because:
The mrris Countv W.C.I.D. #llO opinion
prohibited construction of a complex of
recreational buildings and facilities which
were unrelated to the constitutional purposes
of the district. It is our understanding
that the facilities you propose to build are
related to a relatively minor portion of the
total reservoir project and serve to promote
the full use and enjoyment of the reservoir
by the public. We feel that the improvements
you propose are ordinary and necessary to the
proper control, management, and regulation of
public reservoirs and lakes, and are in
furtherance of the constitutional purposes of
'the \t
co Of all
natural .resources 0: this VState including
the control, storing, preservatibn and dis-
tribution of . . . the waters of its rivers
and streams, for irrigation, power and u
art.
Id. at 4.
Taken together, the 1980 Harris Countv Water Control
d Imorovement District and the 1981 attorney
&eral's opinion teach that%: provision of facilities for
recreation and pleasure is not among the constitutional
purposes for which water districts may levy and expend ad
valorem taxes, but that the provision of recreational
facilities may be considered a proper secondary activity for
a district if furnishing them promotes a constitutional
purpose.
In 1985, chapter 54 of the Water Code was amended to
add subchapter I. At the same time, section 54.201(b)(7)
was changed by adding the words, lUsubject to subchapter I of
this chapter" to the provision that authorized municipal
utility districts to provide parks and recreational
facilities. Section 54.501 was amended to delete any
legislative authority for municipal utility districts to
p. 6186
Honorable-John Whitmire - Page 5 (JM-1173.).
.- issue bonds for the purpose of providing parks and recrea-
tional facilities. m Acts 1985, 69th Leg., ch. 100, at
538.
Section 54.771(a)(2) of the new subchapter I provisions
declares it to be the policy of the state "to encourage the
people in municipal utility districts to provide parks and
recreational facilities for their use and benefit.n 1zf,
Parks & Wild. Code Of 25.001 et sea. Section 54.773 states
that in addition to the other purposes for which a district
is created, a district is created for the purpose of
developing and maintaining recreational facilities. It also
states that a district is "authorized to accomplish this
purpose as provided in this subchapter."
In apparent anticipation of constitutional challenge,
subsections (a)(3), (a)(4), (a)(5), and subsection (b), of
section 54.771, subchapter I, assert:
(a) The legislature finds that:
. . . .
(3) within constitutional limitations,
the power to enact laws vested in the
legislature by Article III, Section 1, of
the Texas Constitution is supreme:
(4) there is no constitutional inhi-
bition that would prohibit the legislature
from authorizing municipal utility dis-
tricts to acguire, own, develop, con-
StNCt, improve,. manage, operate, and
maintain parks and recreational facili-
ties; and
(5) the general legislative power is
adequate to support the enactment of this
subchapter
. . without ref rence to anv sne-
cific constitutional a%horizatioq.
(b) This subchapter is cumulative of
other laws governing municipal utility dis-
tricts and is not limited by a provision of
any other law. This subchapter provides
complete authority to a municipal utility
district to develop and maintain recreational
facilities. (Emphasis added.)
The legislature cannot overturn by declaration or
enactment a construction of the constitution previously
pronounced by the supreme court. Milam Countv v. Bateman,
P. 6187
Honorable John Whitmire - Page 6 (JM-1173).
54 Tex. 153 (1880); gee also ae er v. u 76 S.W.2d
1025 (Tex. 1934); 67 Tex. Jur. % STatutes 8 156'at 789.
Prior to the enactment of the subchapter I "parks and
recreation" provisions respecting municipal utility dis-
tricts, the Texas Supreme Court delineated the authority of
the legislature to delegate power to a municipal utility
district created pursuant to article XVI, section 59, of
the Texas Constitution. In Deason v. Oranae Countv Water
Control & Imor ement Dist. the Texas Supreme Court
had before it ~vlegislative'e%%nt declaring that "water
control and improvement districts now existing, or hereafter
to be created, may include in their purposes and plans all
works, facilities, plants, equipment, and appliances in any
and all manner incident to, helpful or necessary . . . to
purchase, own, and operate fire-fighting equipment and
appliances." In another case, Parker v. San Jacinto Countv
Water Control h Imnrovement Dist, 273 S.W.2d 586 (Tex.
1954), the statute at issue delegat;d to a water control and
improvement district the power to install a sanitary and
storm sewer disposal system.
Both cases concerned the issuance of tax bonds, and in
both cases the statutory provisions were attacked as
unconstitutional. In the Deason case, concerning fire
fighting equipment, the court held:
Section 59(a) . . . contAns no language
which would support a holding that the people
in enacting the amendment contemplated that a
water control and improvement district
created for the purpose of conserving and
developing the natural resources of the
district would have the power to provide
fire-fighting equipment and appliances for a
town within said district.
Deason at 984. In the Parker case, the court said:
Plaintiffs' attack upon the statute fails
because the power to erect and operate a
sewerage disposal plant is clearly within
Sec. 59a, Art. 16, Texas Constitution. The
water brought into the area by the district
is not destroyed by use but must be returned
to the hydrological cycle. The Conservation
Amendment to our State Constitution would
certainly permit the purification of water
before it returns to the groundwater table
and the river system. The protection of the
purity of the waters of this State is a
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Honorable John Whitmire - Page 7 (JM-1173)
public right and duty under the Conservation
Amendment.
Parker at 586.
The difference in the results of the two cases is ex-
plained by the observation of the peason court that the
fundamental purpose in construing a constitutional provision
is to ascertain and give effect to the intent of the framers
of the constitution. Although the incidental use of
already-owned property belonging to a water control and
improvement district for park and recreational purposes may
be condoned when it aids the accomplishment of a Conserva-
tion Amendment purpose, the constitution contains no
language which would support a holding that the people, in
enacting article XVI, section 59, contemplated that a
municipal utility district created for the purpose of
conserving and developing the natural resources of the
district would have the power to use taxes to provide parks
and recreation facilities unrelated to the conservation and
development of natural resources. Har 's
e
Control and Imorovement District, sunra.
Information accompanying your request for an opinion
indicates that the request is prompted by the wish of
,-
Spencer Road Public Utilit District, a municipal utility
district in Harris County, 1 "to acquire some six acres of
land within its boundaries to develop and maintain a park."
You have also supplied information indicating that the park
would include playgrounds, volleyball and basketball courts,
picnic tables and grills, and a jogging trail. In light of
that information, we need not consider whether a municipal
utility district could use taxes to acquire land for the
limited purpose of conservation and development of the
natural resources contained therein.
We are constrained to advise you that, in our opinion,
a municipal utility district, operating under chapter 54 of
the Texas Water Code may not use taxes to purchase real
property for the independent purpose of having it used as a
public park and developed recreational area, and that the
language of subchapter I of chapter 54 is not to be given a
reading that would contradict or overrule the construction
1. The Spencer Road Public Utility District was
created by Acts 1971, 62d Leg., ch. 699, at 2285.
p. 6189
Honorable John Whitmire - Page 8 (JM-1173)
given article XVI, section 59, of the Texas Constitution by
the Supreme Court of Texas.2
SUMMARX
A municipal utility district operating
under chapter 54 of the Texas Water Code may
not purchase real property for the indepen-
dent purpose of having it used as a public
park. The language of subchapter I of
chapter 54 is to be given a reading
consistent with the purposes of article XVI,
section 59 of the Texas Constitution.
Very ItNly y
TIM MATTOX
Attorney General of Texas
MARYKKLLER
First Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
XENEL -hW?GS
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by BNCe Youngblood
Assistant Attorney General
2. Following the supreme court's holding in peason
that the constitution did not permit the legislature to
delegate to municipal utility districts the power to use
taxes to provide fire fighting facilities within the
district, article XVI, section 59 of the constitution was
amended by the people to allow it. m H.J.R. 42, Acts
1977, 65th Leg., at 3374: Acts 1979, 65th Leg., Table 2,
Votes on Amendments to Constitution, at 3267. That avenue
is also open, of course, with respect to parks.
P. 6190