Untitled Texas Attorney General Opinion ( 2008 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
February 11, 2008
The Honorable Keri Roberts Opinion No. GA-0601
Mills County Attorney
Post Office Box 160 Re: Whether Mills County may fund the Fox
Goldthwaite, Texas 76844 Crossing Water District (RQ-0615-GA)
Dear Ms. Roberts:
You generally ask whether Mills County, Texas (the "County") is authorized to fund the Fox
Crossing Water District (the "District"), a water conservation and reclamation district.! The County
"is located within the boundaries of the District." Request Letter, supra note 1, at 2. The District,
as legislatively authorized, "consists of the territory contained within the boundaries of Lampasas,
San Saba, and Mills counties." Act of May 26, 1985, 69th Leg., R.S., ch. 779, § 4, 1985 Tex. Gen.
Laws 2656, 2656. However, only Mills County voters confirmed the creation of the District.
Request Letter, supra note 1, at 2. Thus, we presume the boundaries of the District and the County
are co-extensive.
Article XVI, section 59 of the Texas Constitution provides for the creation of conservation
and reclamations districts with the authority to levy and collect property taxes necessary for the
payment of bonds and maintenance of the district. TEX. CaNST. art. XVI, § 59(b)-(c). Pursuant to
this authority, the Sixty-ninth Legislature enacted House Bill 2487 (the "Act") creating the District.
See Act of May 26, 1985, 69th Leg., R.S., ch. 779, § 1, 1985 Tex. Gen. Laws 2656. The Act
authorizes the District to collect fees, borrow money, issue bonds, and levy taxes-for payment of
bonds and operation and maintenance expenses-if approved by the residents of the District at an
election held for that purpose. See ide §§ 43, 60-62, 73, at 2661, 2663-65.
You inform us that the District requests and receives all of its operation and maintenance
funding from the County in apparent reliance on sections 30 and 59 of the Act. See Request Letter,
supra note 1, at 1,2. Section 30 of the Act provides that "[t]o carry out any purposes or powers
under this Act, the [D]istrict may apply for, accept, receive, and administer gifts, grants, loans, and
otherfundsfrom any source." Act of May 26,1985, 69th Leg., R.S., ch. 779, § 30, 1985 Tex. Gen.
Laws 2656, 2659 (emphasis added). Section 59 of the Act provides that payment of the District
expenses "may be made from money obtained from the sale of bonds ... or out of taxes, fees, or
other revenues" ofthe District. Id. § 59(b), at 2663 (emphasis added). You explain that because the
lSee Letter from Honorable Keri Roberts, Mills County Attorney, to Honorable Greg Abbott, Attorney General
of Texas, at 1, 2 (Aug. 24, 2007) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us)
[hereinafter Request Letter].
The Honorable Keri Roberts - Page 2 (GA-0601)
District does not levy taxes, 2 issue bonds, or collect fees, the "County apparently is being used as [the
District's] 'other revenue.'" Request Letter, supra note 1, at 3. Thus, you specifically ask the
following three questions:
[1] Is obtaining 100% of [the District's] operating and maintenance
expense solely from 'other revenue' in compliance with what the
legislature intended? [2] If yes, may the County budget funds from
its general revenue to fund the District if the Commissioners Court
finds the expenditure to be for a public purpose under article III,
section 52 of the Texas Constitution? [3] And if so, would such an
expenditure be consistent with article V, section 18 of the Texas
Constitution?
Id. (numbers added).
The District, like other water conservation and reclamation districts, is a political subdivision
of the state, separate and distinct from the County. See TEX. CaNST. art. XVI, § 59(b); Act of May
26, 1985, 69th Leg., R.S., ch. 779, § 3(c), 1985 Tex. Gen. Laws 2656,2656; see also Harris County
Flood Control Dist. v. Mann, 140 S.W.2d 1098, 1101 (Tex. 1940) (holding that the article XVI,
section 59 Harris Flood Control District is a separate and distinct political entity from Harris
County). The District has the powers granted by the Act and by other general law specified by the
Act-Water Code chapters 51 (relating to water control and improvement districts), 52 (relating to
underground conservation districts),3 and 54 (relating to municipal utility districts)-to the extent
they are consistent with the Act. See Act of May 26, 1985, 69th Leg., R.S., ch. 779, § 29(c), 1985
Tex. Gen. Laws 2656, 2659; see also Tri-City Fresh Water Supply Dist. No.2 v. Mann, 142 S.W.2d
945, 946 (Tex. 1940) (stating that a special water district may exercise only those powers that are
expressly granted or clearly implied from the express powers).
As you note, the District is expressly authorized to collect fees, borrow money, issue bonds,
levy taxes, and use the revenues from these sources to pay its authorized operating and maintenance
expenses. See Act of May 26, 1985, 69th Leg., R.S., ch. 779, §§ 43,60-61,73, 1985 Tex. Gen.
Laws 2656, 2661, 2663, 2665; see also, e.g., TEX. WATER CODE ANN. §§ 36.201 (Vernon 2000)
(groundwater conservation district's authority to levy taxes), 36.205 (Vernon Supp. 2007)
2you state that"[a] confirmation election was held but the voters only approved joining the district. There has
never been another election to decide[] whether the District can tax." Request Letter, supra note 1, at 1.
3 Section 29(c) of the Act provides that the District has the powers and functions under chapter 51 ofthe Water
Code to the extent necessary to carry out the District's authority relating to underground water. See Act ofMay 26, 1985,
69th Leg., R.S., ch. 779, § 29(c), 1985 Tex. Gen. Laws 2656,2659. And section 46 of the Act grants the District
underground water powers. I d. § 46, at 2661. In 1995, the Legislature repealed Water Code chapter 52, which governed
underground water conservation districts and enacted chapters 35 (dealing with groundwater studies) and 36 (governing
groundwater conservation districts). See Act of May 29, 1995, 74th Leg., R.S., ch. 933, §§ 2, 6, 1995 Tex. Gen. Laws
4673,4674-79 (enacting chapter 35); 4679-4701 (enacting chapter 36); 4701 (repealing chapter 52 ofthe Water Code).
The Honorable Keri Roberts - Page 3 (GA-0601)
(groundwater conservation district's authority to set fees).4 . But the District is also expressly
permitted to use for its authorized operating expenses other revenues and funds received from any
source. See Act ofMay 26, 1985, 69th Leg., R.S., ch. 779, §§ 30, 59(b), 1985 Tex. Gen. Laws 2656,
2659, 2663. The Act does not limit the District to funding its operation and maintenance
expenses-or a percentage of such expenses-from any particular source. Nor have we found any
other provision that imposes such limits on the District. In light of the fact that the Legislature
created the District as a separate political subdivision· empowered to impose taxes and fees and
collect other revenues generated from the District's operations, it is reasonable to presume that the
Legislature intended that the Districtpay its expenses with these authorized taxes, fees, and similar
types of revenues. See id § 59(b), at 2663 ("Payments may be made from money obtained from the
sale ofbonds issued by the district or out oftaxes, fees, or other revenues ofthe district.") (emphasis
added); City ofSan Antonio v. City ofBoerne, 111 S.W.3d 22,29 (Tex. 2003) ("When general words
... follow specific and particularized enumeration of powers ... , we treat the general words as
limited and apply them only to the same kind or class of powers as those expressly mentioned.").
But, in light of the broad wording of sections 30 and 59 and in the absence of any express
limitations, we cannot say as a matter oflaw that the District may not fund all ofits maintenance and
operation expenses with revenues received from other sources, including funds received from
the County, assuming the source can legally provide the funds. See TEX. GOV'T CODE ANN.
§ 311.021 (1), (3 ) (Vernon 2005) ("In enacting a statute, it is presumed that ... compliance with the
constitutions of this state and United States is intended" and "a just and reasonable result is
intended").
Whether the County is authorized to pay for all of the District's maintenance and operation
expenses is a separate inquiry. Because a county's authority is circumscribed, before determining
whether the County's funding ofthe District's maintenance and operation expenses is consistent with
article III, section 525 and article V, section 18,6 we must first determine whether the County is even
authorized to pay for these expenses. See Tex. Att'y Gen. Ope No. JC-0444 (2001) (considering
whether the Legislature authorized a county to pay for a special water district's confirmation election
expenses before addressing constitutional constraints on such county action).
4See supra note 3.
5Consistent with article III, section 52(a) of the Texas Constitution, a county may transfer funds to another
political subdivision only to accomplish a county purpose. See TEX. CONST. art. III, § 52(a) (prohibiting the Legislature
from authorizing political subdivisions to lend their credit); Mann, 140 S.W.2d at 1104 (holding that under article III,
section 52, no funds ofHarris County can be pledged or used to pay bonds ofHarris County Flood Control District); Tex.
Att'y Gen. Ope No. JC-0036 (1999) at 6 ("a commissioners court may expend county funds to improve a city street if
... such expenditure serves a county purpose").
6Consistent with article V, section 18(b), the commissioners court may exercise authority only over matters
pertaining to county business. See TEX. CONST. art. V, § 18(b) (stating that a commissioners court "shall exercise such
powers and jurisdiction over all county business as is conferred by this Constitution and the laws ofthe State"); Mann,
140 S.W.2d at 1104 (discussing implied prohibition in article V, section 18 against the Legislature requiring a
commissioners court to perform functions other than "county business"); Tex. Att'y Gen. Ope No. JC-0036 (1999)
(concluding that county improvement of a city street that is an integral part of or connecting link with a county road
constitutes "county business").
The Honorable Keri Roberts - Page 4 (GA-0601)
A county commissioners court may exercise only those powers expressly granted by the
Texas Constitution or the Legislature together with such implied powers as are necessary to
accomplish the powers expressly conferred. TEX. CONST. art. V, § 18(b); City o/San Antonio, 111
S.W.3d at 28; Canales v. Laughlin, 214 S.W.2d 451,453 (Tex. 1948); Anderson v. Wood, 152
S.W.2d 1084, 1085 (Tex. 1941); La.-Pac. Corp. v. Newton County, 149 S.W.3d 262,263 (Tex.
App.-Eastland 2004, no pet.). Thus, to determine whether the County is authorized to fund the
District's expenses, we must look for affirmative authority for such action.
No constitutional provision? or statute expressly authorizes the County to fund the District's
maintenance and operation expenses. For instance, no provision in chapter 81 of the Local
Government Code, which sets forth the general duties and powers of a county commissioners court,
authorizes such expenditures. While section 81.032 of the Local Government Code authorizes the
commissioners court to accept gifts and grants on behalf of the county and for county purposes, no
similar provision broadly authorizes the commissioners court to make gifts and grants. See TEX.
Loc. GOV'T CODE ANN. § 81.032 (Vernon Supp. 2007). And, again, section 30 ofthe Act authorizes
the District to "apply for, accept, receive, and administer gifts, grants, loans, and other funds
available from any source." Act of May 26, 1985, 69th Leg., R.S., ch. 779, § 30, 1985 Tex. Gen.
Laws 2656, 2659. Section 30 does not authorize the County to provide funds to the District. See
ide Similarly, section 59 of the Act authorizes the District to pay its operation expenses, not the
County. See ide § 59, at 2663. And we have not found, and you do not direct us to, another
provision that authorizes the County to pay for or provide funds to pay for the District's maintenance
and operation expenses.
Additionally, we do not believe that the County is impliedly authorized in these
circumstances to fund the District's maintenance and operations expenses for two reasons. First,
based on the information provided, such an implication is unnecessary to accomplish an expressly
assigned duty or authority of the County. Unlike a county's broad express statutory authority with
respect to roads, for instance, we are unaware of similar, general county authority with respect to
water and wastewater. See, e.g., TEX. TRANSP. CODE ANN. ch. 251 (Vernon 1999 & Supp. 2007)
(county road law). Nor is such authority granted specifically to Mills County. Here, consistent with
article XVI, section 59, the Act expressly grants the District the authority to generally acquire or
improve facilities and undertake other projects for the collection, conservation, treatment, and
transfer of water and wastewater. See Act of May 26, 1985, 69th Leg., R.S., ch. 779, §§ 3
(legislative findings and declaration), 29 (general power of authority), 46 (underground water
powers), 1985 Tex. Gen. Laws 2656,2656,2659,2661. And the Act expressly grants the District
the necessary power-to borrow money, impose taxes and fees, and obtain other funds-to pay for
those projects and the District's operations. See ide §§ 43 (fees and charges), 46 (sell and distribute
water), 60 (borrowing money), 61 (issuing bonds), 73 (levy of taxes), at 2661,2663,2665; see also
TEX. WATER CODE ANN. § 36.205 (Vernon Supp. 2007) (authority to set fees). (Among these
7Ifa constitutional provision authorized the County to fund the District's operation and maintenance expenses,
then the County's actions could not violate article III, section 52 or article V, section 18 of the Texas Constitution. Cf
Mann, 140 S.W.2d at 1102 (stating that ifdonation oftaxes was authorized by the state constitution, the donation cannot
violate constitutional provisions limiting state expenditures).
The Honorable Keri Roberts - Page 5 (GA-0601)
expressly granted powers is the power to levy taxes to pay specifically the maintenance and operation
expenses ofthe District. See Act of May 26, 1985, 69th Leg., R.S., ch. 779, §73(b), 1985 Tex. Gen.
Laws 2656, 2665.) Given the express statutory scheme granting the District the necessary power to
accomplish its constitutional and statutory objectives, there is no basis for implying County authority
to pay the District's expenses. Accord Tex. Att'y Gen. Ope No. JC-0444 (2001) at 3 (concluding that
given the express statutory scheme for payment of groundwater conservation district's election
expenses, county lacked express or implied statutory authority to pay for district's confirmation
election expenses).
Second, we do not believe the County's authority to fund the District's maintenance and
operation expenses may be implied because when the Legislature intends that a political subdivision
contribute funds to a water district, it generally provides for the contribution expressly. See TEx.
WATER CODE ANN. §§ 51.166 (Vernon 2000) (authorizing a district to solicit cooperation, donations
and contributions from other agencies and political subdivisions), 51.168 (authorizing contributor
political subdivision to contract with district to contribute to the cost ofdrainage construction, flood-
control or water-supply improvements, or land-elevation construction and contribute in proportion
to the benefit received from the project by the contributor). And, significantly, the Legislature
specifies the particular purpose of the contribution and the amount, which must relate to the benefit
obtained by the contributor. See id. § 51.168.
Because we conclude that the County lacks express authority or implied authority in the
present circumstances to fund the District's maintenance and operation expenses, we do not reach
your remaining questions as to whether such expenditures would violate the article III, section 52
prohibition against lending ofcredit or the article V, section 18 implied prohibition against a county
engaging in non-county business.
The Honorable Keri Roberts - Page 6 (GA-0601)
SUMMARY
The Fox Crossing Water District (the "District"), a special-
law conservation and reclamation district, is authorized to impose
taxes and fees and collect other revenues generated by its operations.
No statutory provision, however, prohibits the District from funding
all its operation and maintenance expenses from other revenues such
as grants, gifts, loans or other revenues received from other sources,
including Mills County, Texas (the "County"), if the source can
legally provide the funds. But no constitutional provision or statute
authorizes the County to pay for all ofthe District's maintenance and
operation expenses.
KENT C. SULLIVAN
First Assistant Attorney General
ANDREW WEBER
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Sheela Rai
Assistant.Attomey General, Opinion Committee