Untitled Texas Attorney General Opinion ( 1964 )

THE Amro NEY GENERAL
OP TEXAS
Honorable Bill Clayton, Chairman
House Interim Committee to Study
Conservation of Soil and Water
Resources
House of Representatives
Austin, Texas
Opinion NO. c-363
Re: Whether the Legislature
may authorize the Water
Development Board to ex-
tend loans to political
subdivisions of the~State
for conserving and devel-
oping underground water
01' may guarantee bond ls-
sues of political subdlvl-
sions of the State Issued
to provide funds for use
In developing and conserv-
Dear Mr. Clayton: ing underground waters.
We quote your recent request for an opinion of this
office in toto.
"The House Interim Committee to Study
the Conservation of Soil and Water Resources
has been requested to consider proposing
legislation to extend the uses to which
money in the water development fund may
be put, under Section kg-c, Article III,
Constitution of the State of Texas. Several
proposals have been made to the committee;
among them are proposals to allow the Texas
Water Development Board to extend loans to
uarantee bond Issues of) political sub-
-1719-
Honorable Bill Clayton, page 2 (C-363)
“(1) purchase water rights in under-
ground water;
“(2) drill water wells;
“(3) provide transportation for the
underground water from the well
to a treatment and retail distri-
bution point;
“(4) treat the water from the under-
ground supply and provide a re-
tail distribution system for It;
“(5) develop underground storage
facilities for water.
“The committee would appreciate having
from you an opinion on whether or not it
would be constitutional for the legislature
to provide that money in the water develop-
ment fund may be used for any of those
purposes. I’
The constitutional provision autherizing the Texas
Water Development Fund and setting forth the urposes for
which it may be used is Article III, Sect&a g g-c, Goaati-
tution of Texas, It provides In that part pertinent to
your question as follows:
“Such fund shall be used only for the
purpose of aiding or making funds avall-
able upon such terms and conditions as the
Legislature may prescribe, to the various
political subdivisions or bodies politic
and corporate of the State of Texas includ-
ing river authorities, conservation and
reclamation districts and districts created
or organized or authorized to be created or
organized under Article XVI, Section 59 or
Article III, Section 52, of this Constitu-
tion, interstate cempact commlsslons to
which the State of Texas Is a party and
Honorable Bill Clayton, page 3 (C-363)
municipal corporations, in the conservation
and development of the water resources of
this State, including the control, storing
and preservation of its storm and flood
waters and the waters of its rfvers and
streams, for all useful and lawful purposes
by the acqufsition, improvement, extension
or construction of dams, reservoirs and
other water storage projects, including any
system necessary for the transportation of
water from storage to points of treatment
and/or distributfon, includfng facilities
for transportfng water therefrom to whole-
sale purchasers, or for any one or more of
such purposes or methods."
Perhaps you ask these questions because, first, you
feel that since Article III, Section 49-c, fails to
specifically mention underground water that the water
development fund might not be used for the five purposes
enumerated above in your request, and perha s you ques-
tion, second, whether Article III, Section t y-c, autho-
rlzes the Legislature to extend the credit of the State
to political subdivisions of the State in view of Article
III, Section 50 of the Constitutfon of Texas.
We would first call your attention to the fact that
Article III, Sect%on 49-c, does speciffcally authorize the
Legislature to appropriate or make the water development
fund available to districts organized under Article XVI,
Section 59 of the Constftution of Texas to be used In the
conservation and development of the water resources of
this State for useful and lawful purposes. In this respect
Article III, Section 49-c, reads:
"Such fund shall be used only for the
purpose of aiding or making funds avafl-
able q e D to D il . various political sub-
divisions or bodfea pol%t%c and corporate
and districts created or organ-
ized-or authorfzed to be-created or organized
under Article XVI, Sect%on 59 n . o of this
Constitution . D . in the conservation and
Honorable Bill Clayton, page 4 (C-363)
development of the water resources of this
State . . , for all useful and lawful pur-
poses . . . .'
Directing your attention to Article XVI, Section 59,
you will note that it reads In part:
"(a) The conservation and development
of all the natural resources of this State,
. . 0 and the preservation and conservation
of all such natural resources of the State
are each and all hereby declared public
rights and duties; and the Legislature
shall pass all such laws as may be appro-
priate thereto,
"(b) There may be created within the
State of Texas or the State may be divided
into, such number of conservation and re-
clamation districts as may be determined
to be essential to the accomplfshment of
the purposes of this amendment to the
Constitution, which districts shall be
governmental agencies and bodies politic
and corporate . , . ."
Included among the types of districts that the Legls-
lature Is authorized to organize under Article XVI, Section
59, are fresh water supply distrfcts as provided for under
Article 7881, et seq., VernonIs Civfl Statutes. Artfcles
7881 et seq. clearly authorize the creation of such dis-
tricts for the purpose of conserving, transportfng and
distributing fresh water from wells and reservoirs for
domestic and commercial purposes. Articles 7881 et seq.
likewise authorize such districts to acquire by purchase
or otherwise underground water rights. In this respect
Article 7881 reads in part:
"There may be created within this
State conservation districts to be known
as fresh water supply districts for the
purpose of conserving, transporting and
distributing fresh water from D . O reser-
voirs, wells, O , O for domestfc and com-
mercial purposes as contemplated by Sec-
tion 59{, Article XVI of the State Consti-
tution.
-
Honorable Bill Clayton, page 5 (C-363)
Article 7917, V.C.S., reads in part:
"All such districts shall have full
authority and right to acquire water rights
and privileges in any way that any lndivi-
dual or corporation may acquire same, and to
hold the same either by gift, purchase, de-
vise, appropriation or otherwise. No enumer-
ation of specific powers herein shall be held
a limitation upon the general powers conferred
by this chapter, unless distinctly so expressed."
In the case of Ptacek v. Hofheinz, 128 S.W.2d 872 (Tex.
Civ.App. 1939, error ref.), it was held that fresh water
supply districts which utilize subterranean waters for their
source of supply might be organized under Article XVI,
Section 59 of the Texas Constitution.
Further, the resolution (H.J.R. No. 3, Acts 55th Leg.
R.S. 1957, p. 1636) authorizing the submission of Article
III, Section 49-c to a vote of the electorate reads in
part:
"Sec. 2. The foregoing amendment to the
Constitution shall be submitted to a vote of the
qualifie~d electors of this State at an election
to be held on the 5th day of November, 1957,
same being the 1st Tuesday after the 1st Monday
in aaid November, 1957, at which election each
ballot shall have printed thereon, the following
words:
"'FOR the amendment to the Constitution of
Texas adding a new section to be known a8 Section
49-c of Article III, authorizing the issuance and
sale of Two Hundred Million Dollars ($200,000,000)
in bonds by the State of Texas to create the Texas
Water Development Fund to provide financial as-
sistance to certain political subdivisions or
bodies politic and car orate o
'in the conservation~-+!FiFClo~rnIj``
a oStra``e"~aT``a
resources of the State.
"'AGAINST the amendment to the Constitution
of Texas adding a new section to be known as
Section 49-c of Article III, authorizing the
Honorable Bill Clayton, page 6 (C-363)
issuance and sale of Two Hundred Million Dollars
(200,000,000) in bonds by the State of Texas to
create the Texas Water Development Fund to pro-
vide financial assistance to certain political
subdivisions or bodies politic and corporate of
the State of Texas in the conservation and develop-
ment of the water resources of the State."'
(Emphasis Added)
The phrase “in the conservation and development of the
water resources of the State" surely includes subterranean
or underground water. It is said in 12 Tex.Jur.2d 369,
Constitutional Law, Section 24:
.Although the intention of the framers
is of some importance, the real question is what
did the people intend by adopting a constitution
framed in language submitted to them?"
In Smissen v. State, 71 Tex, 222, 9 S.W. 112 (1888) the
court said on page llb of 9 S.W.:
1,
. . .The proceedings of a convention may
be looked to in construing a clause of a con-
stitution framed by it, when it is of doubtful
construction; but such evidence is of but little
weight, for the intention of the framers of a
constitution is of but little importance, --the
real question being, what did the people in%=
by adopting a constitution framed in language
submitted to them?. . ." (Emphasis Added)
Certainly the electors of the S%ate when they read the
ballot for voting on the constitutional amendment in question
would believe the funds for which they were voting might be
used to develop underground waters. Most certainly the
electorate of the State of Texas when it voted on the legis-
lative resolution upon which Article III, Section 49-c was
based, had a general knowledge of the types of districts
formed under Article XVI, Section 59 of the Constitution,
since that Article had been interpreted by both our judiciary
when it decided the case of Ptacek v. Hofheinz and our Legis-
lature when it passed Articles 7881, V.C.S. through 7959a.
Certainly it was the intent of the electorate that water
development funds might be used to aid fresh water supply
districts which utilime subterranean waters for their source
of supply. And certainly it was the intent of the electorate
Honorable Bill Clay~ton, page 7 (C-363)
of this State that when so authorized by the Legislature
such fresh water supply districts could utilize the water
development fund for the purposes for which they were
legally created.
Since the electorate had certain knowledge that it
was authorizing the fresh water supply districts to utilize
(at legislative authorization) the water development fund
for the purposes enumerated in Articles 7881 through 7959,
we conclude that it intended such fund might be used for
similar purposes by other enumerated political subdivisions
of the State (upon legislative authorization) if not other-
wise prohibited by the Constitution.
Therefore, we are of the opinion that Article III,
Section 49-c authorizes the Legislature to provide that the
water development board might extend loans of the water
development fund to political subdivisions of the State which
are not otherwise prohibited by the Constitution of Texas
from engaging in such operations for the purposes of:
(1) purchasing water rights in underground water;
(2) drilling water wells;
(3) providing transportation for the underground
water from the well to a treatment and retail distribution
point;
(4) treating the water from the underground supply
and providing a retail distribution system for it;
(5) developing underground storage facilities for water.
Article III, Section 50 of the Constitution of Texas pro-
hibits the Legislature of the State of Texas from lending the
credit of the State in aid of any municipal corporation in
any manner whatsoever or in pledging the credit of the State
in any manner whatsoever for the payment of liabilities
present or prospective of any municipal corporation. We find
no wording in Article III, Section 49-c of the Constitution
which could be construed as a negation of Article III, Section
50 of the Constitution. It is quite evident from the wording
of Article III, Section 49-c, that the electorate intended
that there be created a maximum fund of $200,000,000.00
(Water Development Fund) which might be loaned to various
political subdivisions for water development purposes but which
should be paid back to the water development fund with interest.
Therefore, we are of the opinion that the Water Development
Board cannot guarantee bond issues of political subdivisions for
the purposes enumerated in your opinion request.
Honorable Bill Clayton, page 8 (c-363)
SUMMARY
The Legislature may authorize the Water
Development Board to extend loans to political
subdivisions fop conserving and developing under-
ground water. The Legislature may not authorize
the Water Development Board to guarantee bond
issues of political subdivisfons, the funds of
which are to be used in developing and conserv-
ing underground waters.
Yours very truly,
WAGGONER CARR
Attorney General of Texas
1t Richardson
AssiiZant
MR”gm
APPROVED:
OPINION COMMITTEE
W, V. Gepper%, Chairman
Linward Shivers
Wayne Rodgers
Arthur Samilfn
Roy Johnson
APPROVRDFOR TRE ATTORNEY
GENERAL
BY: Stanton Stone