Untitled Texas Attorney General Opinion ( 1987 )

Rouorable B. F. Hicks Opinion No. JM-768
Franklin County Attorney
P. 0. Box 787 Re: Whether a water district may
Mt. Vernon, Texas 75457 contract with a commissioners court
to place an ambulance and emergency
medical facilities at a lake owned
and operated by the water district
Dear Mr. Hicks:
You ask two questions which we set out following:
1. Can the Franklin County Water District, a
conservation and reclamation district created by
P
act of the Texas Legislature as authorized under
Article XVI, Section 59, of the Texas Constitution
and also governed by the general law concerning
water control and improvement districts. lawfully
make a donation of money from the general
operating fund of the Franklin County Water
District to the CormeissionersCourt of Franklin
County, said money to be used for the purchase of
an ambulance to be owned by Franklin County
Bospital, said hospital being owned. by Franklin
County, Texas?
2. Can the Franklin County Water District, the
Commissioners Court of Franklin County, and the
Franklin County Hospital enter into an agreement
pursuant to the Interlocal Cooperation Act
(Article 4413(32c), V.T.C.S.) pursuant to which
Franklin County Water District will pay a sum of
money to the Commissioners Court of Franklin
County in exchange for which Franklin County
Hospital would agree to place an ambulance and
emergency medical technicians at Lake Cypress
Springs, which is owned and operated by Franklin
County Water District in Franklin County, during
specified days of the year?
P The Franklin County Water District is a water control and
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Eonorable B. F. Hicks - Page 2 (JM-768)
improvement district created by the legislature pursuant to article
XVI, section 59, of the Texas Constitution. Acts 1965, 59th Leg., ch.
719. at 1668. See also Acts 1971, ,62d Leg., ch. 354, at 1330. The
water district is a political subdivision of the state. Acts 1965,
supra. The district derives its powers at large from the constitution
and specifically from the statutes governing the particular duties it
is to discharge. Franklin County Water District V. Majors, 476 S.W.2d
371, 373 (Tex. Civ. App. - Texarkana 1973, writ ref'd n.r.e.); see
generally Attorney General Opinions JM-258 (1984); M-171 (1967). -
The district may exercise either those oowers which are exoresslv
delegated to it or -those that are clearly'implied from the express
powers. Tri-City Fresh Water Supply District No. 2 of Harris County
v. Manor. 142 S.W.2d 945, 946 (Tex. 1940); Lower Nueces River Water
Supply District V. Cartwright, 274 S.W.2d 199, 207 (Tex. Civ. App. -
San Antonio 1954 writ ref'd n.r.e.1. Implied oowers are those that
are "indispensable to the accomplishment of the purpose" for which the
political subdivision was created; powers "merely convenient" or
"useful" cannot be implied and may not be assumed by the subdivision.
Tri-City Freshwater Supply District No. 2 of Harris County, supra, at
947. (Emphasis'added).
The act creating the district authorizes it t@ exercise the 7.
following powers, privileges, and functions, among others:
(1) To control, store, preserve and distribute
its waters and flood waters, the waters of its
rivers and streams, for all useful purposes and to
accomplish these ends by all practicable means
including the construction, maintenance and
operation of all appropriate improvements. plants,
works and facilities, the acquisition of water
rights and all other properties, lands, tenements,
easements and all other rights necessary to the
purpose of the organization of the District.
(2) To process and store such waters and
distribute same for municipal, domestic,
irrigation and industrial purposes, subject to the
requirements of Chapter 1, Title 128. Revised
Civil Statutes of Texas, 1925, as amended.
(3) To dispose of property or rights therein
when the same are no longer needed for the
purposes for which the District is created or to
lease same for purposes which will not interfere
with the use of the property of the District.
(4) To cooperate with and contract with the
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Honorable B. F. Hicks - Page 3 (JM-768)
State of Texas, the United States of America, or
with. any of their departments or agencies now
existing, or which may hereafter be created, to
carry out any of the powers or to further any
of the purposes of the District and, for such
purposes, to receive grants, loans or advancements
therefrom.
. . . .
(6) To exercise all functions to permit the
accomplishment of its purposes including the
acquisition within or without said District of
land, easements, and rights-of-way and any other
character of property incident to, or necessary in
carrying out the purposes and work of the District
by way of gift, device, purchase, leasehold or
condemnation. . . .
(7) To do any and all other acts or things
necessary or proper to carry into effect the
purpose for which the District is created as
organized.
Acts 1965, 59th Leg., ch. 719, 14 at 1671-72.
Chapter 51 of the Water Code governs the operation of the
day-to-day affairs of the district. See Water Code 4951.121-51.194.
A district may purchase machinery Gded in the operation and
maintenance of its improvements. -Id. at 551.126.
Finally, the district may undertake activities in support of
public recreation cn its properties. Specifically, it may
(1) acquire land for public recreation;
(2) construct facilities for public use on
land acquired for public recreation;
(3) provide for the operation, maintenance.
and supervision of the public recreation areas;
(4) execute agreements with other local,
state, or federal agencies for planning. construc-
tion. maintenance, and operation of public
recreation facilities and necessary access roads;
and
(5) maintain adequate sanitary, standards on
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Ronorable B. F. Bicks - Page 4 ' (JM-768)
the land and water areas that are part of or
adjacent to public recreation areas. (Emphasis
added).
Parks and Wild. Code 513.304.
.You first ask whether the .district may provide money from its
general fund to the Franklin County Commissioners Court for the
purchase of an ambulance for the Franklin County Hospital, which is
owned by Franklin County. You do not say how the ambulance will be
used, or whether it will be for the exclusive use of the district,
either to protect the health and safety of the district's employees,
or the well-being of members of the public using the district's
property for recreation. We assume that your question contemplates
that the district will provide the entire cost of the ambulance.
The district may provide for the health care needs of its
employees. Attorney General Opinion O-4140 (1941). Likewise, it may
provide for the operation, maintenance, and supervision of public
recreation areas. sparks and Wild. Code §13.304(3). Given these
powers, the purchase and operation of an ambulance by the district
would be a proper exercise of its authority. An ambulance can perhaps
be considered as a tool for providing first aid. Unlike a fixed
health care facility, such as a hospital or clinic, it cannot be used
for long-term care, or, indeed, for anything other than dealing with
critical or life-threatening~emergencies, such as those that might be
caused by construction or recreation accidents on the property of the
district.
We conclude that the transfer of district funds to the county for
the purchase of an ambulance to be owned by the county's hospital and
placed on the district property is permissible, so long as the
ambulance purchased with the transferred money is used exclusively for
a purpose lawful both to the district and the county. Article III,
section 52. of the Texas Constitution prohibits the use of public
money other than for public purposes. This section of the constitu-
tion bars a political subdivision from gratuitously granting its funds
to another political subdivision. Harris County Flood Control Dis-
trict v. Mann, 140 S.W.2d 1098 (Tex. 1940); San Antonio Independent
School District v. Board of Trustees of San Antonio Electric and Gas
System, 204 S.W.2d 22 (Tex. Civ. App. - El Paso 1947, writ ref'd
n.r.e.); Attorney General Opinions JM-220 (1984); JM-65 (1983); H-1170
(1978). This provision would not prohibit the arrangement you have
described to us, so long as it is carried out pursuant to an agreement
that clearly indicates what public purpose is being served by the
arrangement and that the district and the county each will derive a
specific public benefit from the arrangement. The agreement must
assure that the ambulance is under the joint control of both parties,
and that it will only be used for.a purpose lawful to the district.
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Honorable B. F. Hicks - Page 5 (m-768)
See Attorney General Opinions JM-220 (1984); JM-65, JM-44 (1983);
m60 (1979) (county may make its funds available to city for
operation of the zoo) and H-413 (1974) (court authorized to contribute
to construction of swinnningpool operated by school district).
If ~the ambulance is not devoted to the exclusive service of
health care of water district employees, health care of persons using
the district's facilities, or both, then we do not believe that the
district is authorized to provide funds to the county for its pur-
chase. In other words, if the ambulance is not at the complete beck
and call of the district for either the protection of its employees,
or the health and safety of members of the public using the recreation
areas maintained by the district, then the district would have no
authority to purchase the ambulance, and it would likewise have no
authority to provide money to the county to purchase one to be used
for that purpose. Because the district has no authority to operate an
ambulance service to protect the public at large, it may not make its
funds available for that purpose, even if the grant is to another
public body. Thus, if the district provides all of the funds.neces-
sary for the purchase of the ambulance, the vehicle must be available
for just the needs of the district. A contribution of some part of
the cost of the ambulance would permit a proportionate dedication of
the machine to the exclusive needs of the district.
We caution, however, that any examination of the lawfulness of
the activity proposed by your first question must also include a
thorough consideration of what the county may lawfully do. An
agreement between the district and county must be supported by
adequate consideration to support the county's expenditure of public
funds to operate and maintain the ambulance. An arrangement which
requires the county to devote a part oftits ambulance service exclus-
ively to the needs of one client raises questions about whether the
county can ever receive a quid pro quo adequate-to satisfy the rule
against transfer of public funds without receiving corresponding
public benefits. While we are in no position to structure a bargain
for the parties, we suggest that the district and county consider the
absolute legal necessity of an agreement that provides adequate
assurances of a suitably equivalent exchange of public funds for
public benefits by both parties.
You also ask about an apparent alternative method for meeting the
health and safety needs of the district. You ask whether the
Franklin County Water District, the Commissioners
Court of Franklin County, and the Franklin County
Hospital [can] enter into an agreement pursuant to
the Interlocal Cooperation Act (Article 4413(32c).
V.T.C.S.) pursuant to which Franklin County Water
District would pay a sum of money to the
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Honorable B. F. Hicks - Page 6 (JM-768)
Commissioners Court of Franklin County in exchange
for which Franklin County Bospital would agree to
place an ambulance and emergency medical
technicians at Lake Cypress Springs, which is
owned and operated by Franklin County Water
District in Franklin County. during specified days
of the year?
Our answer to this question is in the affirmative, and stands
apart from our answer to the first question. As we noted above, the
Parks and Wildlife Code permits the Franklin County Water District to
operate and maintain recreation areas. The district may "execute
agreements with other local, state, or federal agencies for planning,
construction, maintenance and operation of public recreation areas."
Parks and Wild. Code §13.04(4). Thus, it would be appropriate for the
district to enter into a contract with Franklin County for the
provision or services necessary to provide for healthy and safe
recreation areas, so long as the county can lawfully be a party to
such a contract.
The Interlocal Cooperation Act, article 4413(32c), V.T.C.S., also
permits the kind of agreement contemplated in your question. See art.
4413(32c), 54(b). So long as all of the parties to an InGlocal
cooperation agreement are authorized to provide the services con-
tracted for, such an agreement would be lawful.
We note that a county has the power both to provide for a
hospital, see article 4478, V.T.C.S.. and to appropriate and spend
money fromthe general revenues of the county for health and sanita-
tion. This power specifically includes the power to operate an
ambulance service in the county. Attorney General Opinion C-772
(1966). Any expenditure of county funds must not be contrary to
article III, section 52. of the constitution. See Attorney General
Opinion J&191 (1984). In other words, each party to the contract
must receive adequate consideration for its expenditure.
SUMMARY
The Franklin County Water District, a
conservation and reclamation district created
pursuant to article WI, section 59, of the Texas
Constitution, may provide funds to Franklin County
for the purchase of an ambulance, if the ambulance
will be used exclusively in furtherance of a
lawful purpose of the district. Such lawful
purposes are: protecting the health and safety of
the .district employees and providing for safe
public recreation on the'district's property. The
district may enter into an agreement with Franklin
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Honorable B. F. Hicks - Page 7 (``-768)
County and the county hospital to place an
ambulance and emergency medical technicians on the
district's property at certain times in order to
protect the health of district employees and the
general public using ~the district's property for
recreation purposes. Parks and Wild. Code art.
13.03(4): V.T.C.S. art. 4413(32c).
Very/truly y0urj.j
JIM MATTOX
Attorney General of Texas
MARY KELLER
Executive Assistant Attorney General
JUDGE ZOLLIE STBAKLRY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Don Bustion
Assistant Attorney General
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