Untitled Texas Attorney General Opinion ( 1961 )

l+‘I.LL WILSON
A.,qWRNEY CW!lNERAl.
August 7, 1961
Honorable Andrew Campbell Opinion NO. ``-11.06
County Attorney
yami1ton county Re: Whether the County Commis-
gamilton, Texas sioners Court Is authorized
to act as a sponsoring agent
of a watershed protection
and flood protection project
on private land wholly in
said county to be established
by the United States Depart-
ment of Agriculture under
pear Mr~Campbell: Public Law 566.
Your request for an opinion concerns a proposed
cooperative project provided for by Public Law 566 which
would provide a series of dams, levees, terraces, and struc-
tures along Pecan Creek in Hamilton County on privately owned
land on which public easement has been obtained. The purpose
of the project would be for flood prevention, and water con-
servation.
Public Law 566 (Title 16, Section 1001-5, U.S.C.A.)
is popularly known as The Watershed Protection and Flood Pre-
vention Act. This Congressional Act was signed into law in
EV. The declared purpose of the Act is to authorize and
direct the Federal Covernment through the Department of Agri-
culture to'cooperate with the several states and their poll-
tical subdlvislons Inpreventing flood water, erosion, and
sediment'damage In the watersheds of the rivers and streams
of the United States, thereby preserving and protecting the
&Ion's land and water resources.
Under Section 1003-Q of Public Law 566, the Secre-
tary of Agriculture Is authorized to cooperate,and enter Into
agreements with and to furnish financial and other assistance
to counties in regard to flood control and related problems.
Cn,thls point the Act speclficall``provides that all the cost
of installation and construction (including engineering costs)
of improvements applicable to flood prevention will be borne
by the Federal Government and paid for by the Secretary out of
funds appropriated for watershed and flood protection.
Honorable Andrew Campbell, Page 2 (``-1106)
Section 1304 cf the same A&,1. ::etsout some of the
specific con5ltlor:sthe lx.11 ``1*~;3111~;1!
I~\118 must comfily with
in order to receive :-?derulasslstdnce for Installation of
improvements. Cne such requirement is that the local unit
acquire without co-'t;
to the Federal Government any easement
of right-of-way in land as will be needed for the Installa-
tion of 19provementa. Another condition in Section 1004-3
Is that the local unit "make arrangements satisfactory to the
Secretary for defraying costs of operating and maintaining
such works of improvement, in accordance with regulations
presented by the Secretary of Agriculture.' This condition
would place on Hamilton County, the propose'dlocal proJect .
sponsor, the responsibility of operating and maintaining at
countx expense the watershed and flood prevention "imprdve-
~ments after the construct.lonof same by the Federal Covern-
ment 18 completed.
of Article XVI of the Texas Constltu-
tlon and Vernon's Civil Statutes set out ex-
pressly the leglslatlve attitude of the State of Texas in
rd te flood control and watershed protection. Section
;;g) of Article XVI states In part:
"The conservation and develop-
ment of all of t,henatural resources
of this State, including the control,
storing, preservation and distrlbu-
tion of its storm and flood waters,
the reclamation and drainage of
its overflowed lands, are each
and all hereby declared public rights
and duties; . . *'
Compatible with the legislative concern for flood
protection and control as expressed above Is Section 2 of
Article TO@a, Vernon's Clvll Statutes. This provision
authorizes all counties to levy a tax for flood control and
farm-to-market and iateral roads purposes. This authorized
levy is In the form of an ad valorem tax that the counties
are permitted to levy, assess upon all property within their
respective boundaries, "except the first Three Thousand
Dollars ($3,000) value of residential homesteads, not to
exceed thirty cents (30#) on each One Hundred Dollars ($100)
valuation, In addition to ali other ad valorem taxes author-
ized by the Constitution of the State, provided the revenue
therefrom shall be used as provided in this Act for the Con-
struction and maintenance of Farm-to4arket and Lateral Roads
. . I
5119
Honorable Andrew Campbell, Page 3 (``-1106)
or for Flood Control and for these two (2) purposes only."
(mphasls ours)
Section 3 of Article 7048a requires that the taxes /
collected under the Act are to be credited by the Conunlsslon-
,ersCourt to the two separate funds discussed. The Farm-to-
Market and Lateral Roads Fund to be used solely for authoriz-
ed roads within the county, and the Flood Control Fund to be
used solely for flood control purposes within the county.
l'hlsSection requires c;hecredits to tne respective funds to
be made proportionately in accordance with the tax allocation
adopted at the election called for the purpose under Sections
7 and 8 of Article 7048a. See Attorney General's Opinion No.
V-1222 pertaining to the sufficiency of wording for ballots
to be used at an election on levying farm-to-market or flood
control taxes.
Section 5 of Article 7048a places the funds In the'
Flood Control Fund within the jurisdiction and control of the
County Commissioners Court only to be used for flood control
purposes. This Section provides further that all or a part
of~such fund can be used In connection with the plans and pro-
-,
grams of the Federal Conservation Service and several other
listed types of water control and Improvement districts.
If under the before mentioned provisions of Article'
704&t, Vernon's Civil Statutes, passed pursuant to Article
VIII of the Texas Constitution, Hamilton County assessed and
collected the authorized tax and a portion of that tax was
allocated to the Flood Control Fund as the result of the called
election, and the amount of funds sc,allocated was sufficient
to maintain and operate the completed structures, constructed
at Federal expense for watershed protection and flood control
purposes In the county, the county coul~dauthorize the spending
of any amount available in the Flood Control Fund for mainte-
nance purposes and thus meet a primary obligation of a local
project sponsor under Public Law 566, if under the law of the
State of Texas the county is authorized to enter Into a con-
tract or agreement with the United States Department of Agri-
Gre such as contemplated by Public Law 566. Attorney
General's Opinion No. WW-595 held that Navarro County could
spend tax money to maintain dams constructed In Navarro County
by a joint conservation dlstrlct If such money came from the
Flood Control Fund established under Article 7048a, Vernon's
Civil Statutes.
Honorable Andrew Campbell, Page 4 (WW-1106)
The Commissioners Court of any county in the State
may enter Into contracts for the accomplishment of plans and
programs for Flood Control and Soil Conservation with the
Ped&al Conservation Service, etc., under authority of Article
?OWb . Vernon's Civil -Li3ZGXes. Attorney General's Opinion
No. k-596 held that while ? county might contract under Article
7048b with the Federal Sol1 Conservation Service, It Is neces-
sary that the county comply with Article 7048a before funds
wlli be available fbr the maintenance of boll conservation
projects. This Article also provides that the responsibility
for carrying out such plans and the expendlture of county
funds (under Article 7048a, supra) and the funds of the poll-
tical subdivision concerned may be, by agreement, divided
hetween the parties or delegated to either the county or to
one of said subdivisions. The contracts may be for a specl-
fled term of years or until certain plans or programs have
been accomplished.
Also Article 1109k of Vernon's Civil Statutes pro-
1 vides that all counties are authorized to enter Into contracts
with soil conservation districts for the joint acquisition of
right-of-ways or joint construction or maintenance of improve-
ments restricted to flood control. Such contracts may contain
any terms as the governing bodies of the respective political
subdivisions determine to be necessary under all facts and clr-
cumstances. Here again all counties are authorized to spend
tax monies In the Flood Control Fund levied under Article
7048a of Vernon's Civil Statutes. This Article in Its orlgl-
nai form, Acts 56th Legislature, Regular Session, 1959, Chap-
ter 313, Page 686, popularly known as Senate Bill 313 dlsclos-
es In Section 6 the desire of the Legislature to provide an
adequate provision In the law that would authorize counties to
enter into agreements with other governmental units for the
purposes of establishing, operating and maintaining flood pro-
tection and soil conservation projects.
Finally, Section 1 of Article 1581e, Vernon's Civil
Statutes, authorizes all counties the right of eminent domain
to condemn and acquire real property and easements over and
throrighall public and private lands for the making of lmprovc-
ments for flood control purposes. Also It Is provided that
If the Commissioners Court deems the acquisition of the land
necessary condemnation of the fee title may be had for the
purposes of flood control under Article 3264, Vernon's Civil
Statutes, and related provisions dealing with eminent domain
and condemnation powers of counties. In addition to the powers
specified above Section 3 of Article 1581e states as follows:
5120
Honorable Andrew Carnpfell.Page 'j (WW-llt6)
'The Commlssloners Court of any
county in this State may contract and
a ree with any other county, political
* lvlslon, governmental unit, or
municipal corporation for the joint
acquisition of right-of-ways, or joint
construction or maintenance of canals,
drains, levees and other Improvements
for flood control and drainage as re-
lated to flood control, and for making
necessary outlets, and malntalnlng them.
Such contracts shall contain such terms,
provisions and details as the governing
bodies of the respective political sub-
divisions shall determine to be necessary
under all the facts and circumstances.
It is assumed that the contract entered Into between
the County Commissioners Court of Hamilton County and the U.S.
Department of Agriculture in the Instant case is in compliance
with the provisions of the Texas Constltutlon and Statutes.
Further, if the Commissioners Court has not already
done so, it Is assume3 that the Court will set a maximum amount
of tax rate out of the Flood Control tax levy for the purpose
of complying with Its part of the foregoing agreement, and the
exact amount thereof will he speclfled both in the contract and
Commlssloners Court minutes. Also hit Is assumed that the
Commissioners Court wil.1 leave sufficient margin within the
Flood Control tax rate so that the County will be In position
to issue and finance tl.mewarrants a.ndbonds out of this fund
in the future.
In view of the State leglsl~atlveintent and policy
as expressed In the above statutes, It is our opinion that
such provisions encourage cooperatlve agreements or contracts
between counties ard other political subdivisions, including
an agreement with a dlvlrlon or department of the Federal
Government In regard to t?&edevelopment and maintenance of
watershed and flood protectl~on~.:rojects.
- I. ‘9
Honorable Andrew Campbell, Page 6 (``-1.106)
SUMMARY
The Commissioners Court of Hamilton
County, having obtained an easement
on private land on which watershed
and flood prevention Improvements
will be constructed, and having es-
tablished a Flood Control Fund under
Section l-a of Article VIII of the
Texas Constitution and Article 7o48a,
Vernon's Civil Statutes, the county
Is authorized to contract or otherwise
agree to be a sponsoring agent of a
watershed protection and flood control
project to be established by The United
StatesDepartment of Agriculture under
Public LOW 566.
Yours very truly,
WILL WILSON
Attorney General of Texas
I. Raymond Williams, Jr.
Assistant
1RWJr:mm
APPROVED:
OPINION COMMITTEE
Morgan Nesbltt, Chairman
Howard Mays
Llnward Shivers
Charles Llnd
REVIEWED FOR THE ATTORNEY GENERAL
BY: Houghton Brownlee, Jr.