Untitled Texas Attorney General Opinion ( 1978 )

The Attorney General of Texas
January 6, 1978
JOHN L. HILL
Attorney General
Honorable William W. Day Opinion No. H- 1111
Criminal District Attorney
of Calhoun County Re: Source of payment of a
P. 0. Box 1001 judgment against Calhoun County
Port Lavaca, Texas ‘77979 Drainage District No. ll.
Dear Mr. Day:
You have requested our opinion regarding the source of payment of a
judgment against Calhoun County Drainage District No. ll.
In 1961, the Legislature validated the District by special act, and
declared it to be a validly existing and op?rating district under article 16,
section 59 of the Texas Constitution. Acts 1961, 57th Leg., ch. 339, at 716.
The act provides that the District is
vested with, all of the rights, powers, privileges and
duties conferred and imposed by the General Laws of
the State of Texas now in force and hereafter enacted
applicable to water control and improvement districts
. ...
Sec. 1. In June, 1977, a plaintiff secured a judgment against the District for
damages to his property resulting from the District’s construction of
improvements on Agua Dulce Creek. The Calhoun County Auditor, who also
serves as auditor for the District, has asked that you determine which of the
District’s statutory funds should be used to satisfy the judgment.
A water control and improvement district is required by the Water Code
to maintain at least two separate funds, a construction fund, section 51.351,
and a maintenance fund, section 51.352. The construction fund must be used
to pay expenses, debts, and obligations necessarily
incurred in the creation, establishment, and main-
tenance of the district and to pay the purchase price
of property and construction contracts, including
purchases for which the bonds were issued.
Water Code 5 51.351(b). We do not believe that the payment of a judgment for
damages may reasonably be said to be an obligation “necessarily incurred in
the creation, establishment and maintenance of the district.“.
P. 4550
Honorable William W. Day - Page 2 (H-1111)
The maintenance fund must be used
to pay all expenses of maintenance, repair, and operation of
the district except the expenses of assessing and collecting
taxes for the interest and sinking fund. Expenses for
collecting taxes for the interest and sinking fund shall be
paid fro,m the interest and sinking fund.
Water Code S 51.352(b). Section 51.352(c) provides, however, that a district
may pay from the maintenance fund other expenses for
which payment is not provided in this chapter.
No specific provision is made in chapter 51 of the Water Code for the satisfaction
of a judgment against a water control and improvement district. In our opinion,
such payment should be deemed to constitute “other expenses” and therefore,
payable out of the maintenance fund.
The Supreme Court’s decision in Harris County Plood Control Dist. v.
Mihelich, 525 S.W.2d 506 (Tex. 1975) supports this view. In that case, the Court
mt a water control and improvement district should use its maintenance fund
to satisfy a judgment for damages under the Texas Tort Claims Act. Id. at 510-R.
See also-Hrown County Water Improvement Dist. No. 1 v. Austin Mill annrain Co.,
-2d 523 (Tex. 19401. Thus, it is our opinion that Calhoun County Drainage
District No. 11 should pay a judgment of damages rendered against it from its
maintenance fund.
SUMMARY
Calhoun County Drainage District No. 11 should pay a
judgment of damages rendered against it from its main-
tenance fund.
Attorney General of Texas
APPROVED:
%JLlLL*
DAVID M. KENDALL, First Assistant
p. 4551
Honorable William W. Day - Page 3 (H-1111)
Opinion Committee
M
P. 4552