Untitled Texas Attorney General Opinion ( 1981 )

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The Attorney General of Texas
March 23, 1981
Mr. E. C. Parker, Jr., President Opinion No. MV-313
Board of Directors
Upper Guadalupe River Authority Re: Whether the Upper Guadalupe
P. 0. Box 1278 River Authority may provide park
Kerrville, Texas 78026 and recreational facilities
Dear Mr. Parker:
You have asked whether the proposed construction of certainpark and
recreational facilities by the Upper Guadalupe River Authority ,on its soon to
be completed reservoir near the city of Kerrville would be in furtherance of
-the purposes for which the district was created. You state that the proposed
facilities construction includes “landscaping, making certain areas of the
reservoir suitable for swimming, and providing parking areas, restroom
facilities, boat ramps, picnic tables, lighting, roads, and fencing for the
areas.”
The Upper Guadalupe River Authority is a conservation and reclama-
tion district created under and pursuant to article XVI, section 59 of the
Texas Constitution and Acts 1939, 46th Legislature, chapter 5, as amended
(codified as article 8280-124, V.T.C.S.). Article XVI, section 59 of the Texas
Constitution states:
Sec. 59. (a) The,conservation and development 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,
semt-and and other lands needing irrigation, the
reclamation and drainage of its over-flowed 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 a~ each
and all hereby declared pubhc nghts and dutraq and
the L&rIature shall oass all such laws as may be
approphate thereto. -
p. 995
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Mr. E. C. Parker, Jr. - Page Two (Mw-31%
9~) 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, privilqes and
ftmctions concerning the subject matter of this amendment g
may be conferred by law. (Emphasis added).
In 1971, the authority’s enabling legislation was amended (Acts 1971, 62nd Legislature,
chapter 430, at 1586-87) to read as follows:
Sec. 16. (a) Without limiting the powers granted to the
District by this Act, the District shall specifically have the
rieht. oower. brivileze. flnction and authoritv to control
d&e&; store &td @serve the waters and flood-waters of the
Upper Gusdaltxxr River and its tributaries within or without the
boundaries of the District for any beneficial or useful purpose
and to purchase, acauire. build. construct, improve, extend,
reconat&t, repair a& maintaln~ any and all dams, structure&
waterworks systems, sanitary or storm aewer or drainage or
irrigation systems, buildings, waterways, pipelines, distribution
systems, ditches, lakes, ponds, reservoirs, plants, and recrea-
tional facilities for the public use and any and all other
facibties or equipment in aid thereof, and to purqhase or
acauire the necessarv sites. easements, rights-of-way. land or
ot6er properties necessary thereof and to io any and-all of the
acts and things which may be necessary to the exercise of any
and all of the rights, powers, privileges, functions and authority
of the District, and same may be accomplished by any and all
practical means, and the District may sell water and other
services. (Emphasis addedL
In 1975, the Attorney General rendered an opinion that the development of parks and
recreational facilities by municipal utility districts created under article XVI, section
59 of the Texas Constitution in the district16 program of developing and conserving the
natural resources of the state is a constitutionally permissible activity. Attorney
General Opinion H-491 (1975L
t1101. the court held that certain orooosed recreational facmes to be built bv the
met would not serve the purpos& for which the district was created. This de&ion
has apparently created doubts as to whether the river authorities of this state can
construct recreational facilities on reservoirs
In the Harris Camtg W.C.I.D. #llO opinion, Chief Justice Phillips states quite
pointedly that “itl he question in this appeal is whether a municipal utility district may
p. 996
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Mr. E. C. Parker, Jr. - Page Three (MW-313)
provide perk and recreational facilities which include a community center, three
s,wimming pools, four tennis courts, and a clubhouse. . . .‘I E at 853. (Emphasis
added1 Thus, recreational facilities per se are not prohibited but rather, are limited
by the standard set out by the court to-%: “[tl he power to construct recreational
facilities must be exercised to further a purpose of section 54.012 [Texas Water Code)
to be justified and constitutionaL v Ia, at 854. The court had previously stated that
“[$I ection 54.012 of the Texas Water Code, entitled ‘Purposes of a District,’ parallek
the Muage of article XVI, section 59(a) (Texas ConstitutionL” Id. at 853. Implicit in
the lquage of the opinion is a question of the degree of relaTionship between the
recreational facilities and the constitutional purpose of the district.
Section lLO24 of the Texas Water Code, a legislative statement of public policy
regarding the use of state waters, provides:
In order to conserve and properly utilize state water, the
public welfare requires not only recognition of beneficial uses
but ako a constructive public policy regarding the preferences
between these uses, and it is therefore declared to be the public
policy of this state that in appropriating state water preference
shall be given to the following uses in the order named:
(1) domestic and municipal uses, including water for
sustaining human life and the life of domestic animals;
(2) industrial uses, meaning processes designed to convert
materiak of a lower order of value into forms having
greater usability and commercial valtm, including the
development of power’ by means other than hydro-
electric;
(3) irrigation;
(4) mining and recovery of minerals;
(5) hydroelectric power;
(6) navigation;
(7) recreation and pleasure; and
(8) other beneficial usea.
The reservoir in this case is being constructed primarily to control and store
water on the Guadalt@ 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.
p. 997
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Mr. E. C. Parker, Jr. - Page Four (l&q-313)
The legislature has given conservation and reclamation districts the necessary
powers to regulate the use of reservoirs for recreational purposes. The Texas Water
Safety Act provides In section 3l.O92(c) of the Parks and Wildlife Code:
The governing board of a political subdivision of the state
created pursuant to Article XVI, Section 59, of the Texas
ch-qter. (Emphasis added).
We are advised that constructing the proposed facilities will aid proper control and
regulation of the recreational use of the reservoir.
The Harris County W.C.I.D. #llO opinion prohibited construction of a complex of
recreational buildings and facilities which were uwelated 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 canservation and development of all natural
resources of this State, Including the control, storing, preservation and distribution
of. . . the waters of its rivers and streams; for irrigation, power and all other useful
pUWOSS.” Tex. Const art. XVI, 559(a). (Emphasis added). Conservation and
development of natural resources includes use and enjoyment “Conserve” means to
keep in a safe or sound state, to save, to preserve from change or destruction, and is
svnonvmous with maintain. sustain. uohold. &fend. orotect. euard. shield and secure.
PecosValley Artesian Cc&ervanc~ D’istric’t v. Peters, 173 P.>d 490 (N.M. 1945). The
reservoir cannot be used and enjoyed without facilities designed not only to accomplish
and regulate such use, but ako to conserve and protect the reservoir.
SUMMARY
Construction of recreational facilities to make certain areas
of a reservoir suitable for public access and use, to include
landscaping, making certain areas suitable for swimming,
providing parking areas, restrooms, boat ramps, picnic tables,
lighting, roads, and fencing is a constitutionally permissible
activity of a conservation and reclamation district created
under article XVI, section 59 of the Texas Constitution.
p. 998
Mr. E. C. Parker, Jr. - Page Five (MV-313)
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Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E.GRAY III
Executive Assistant Attorney General
Prepared by Ladd Pattillo
Assistant Attorney General
APPROVED:
OPINION COMMl’lTEE
-Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Ladd Pattillo
Bruce Youngblood
p. 999