Untitled Texas Attorney General Opinion ( 1982 )

The Attorney General of Texas
December 31, 1982
MARK WHITE
Attorney General
Mr. John W. Millican Opinion No. w-593
Supreme Court Building
Acting Executive Director
P. 0. BOX 12546
Austin. TX. 76711- 2546
Texas State Soil and Water Re: Whether a soil and water
512,4752501 Conservation Board conservation district has
T&x 9101674-1367 P. 0. Box 658 authority under chapter 201 of
Telecmier 5121475-0266 Temple, Texas 76503 the Agriculture Code to serve
as a central distribution point
1607 Main St.. Suite 1400
for landowners to purchase
Dallas. TX. 75201.4709 fish to stock fish ponds
2141742-6944
Dear Mr. Millican:
4624 Alberta Ave., Suite 160
El Paso. TX. 799052793
You have requested our opinion as to whether a soil and water
915/533-3464 conservation district is authorized to serve as a central distribution
point for landowners to purchase fish and, in addition, whether a
district may charge a fee therefor.
1220 Dallas Ave., Suite 202
Hous,~, TX. 77002.6966
7131650-0666
Soil and water conservation districts are created by chapter 201
of the Texas Agriculture Code. With regard to such districts, the
legislature has said, in section 201.001:
606 Broadway, Suite 312
Lubbock, TX. 79401.3479
(c) In order to conserve soil resources and
606,747.5236
control and prevent soil erosion, it is necessary
that land-use practices contributing to soil waste
4309 N. Tenth, Suite S and soil erosion may be discouraged and
McAlten, TX. 76501-1665 discontinued, and appropriate soil-conserving
5121662.4547
land-use practices be adopted and carried out.
Among the procedures necessary for widespread
200 Main Plaza, Suite 400 adoption are engineering operations such as the
San Antonio, TX. 76205.2797 construction of terraces, terrace outlets, check
512/225-4191 dams, dikes, ponds, ditches, and the like; the
utilization of strip-cropping, lister furrowing,
An Equal Opportunity/ contour cultivating, and contour furrowing; land
Affirmative Action Employer irrigation; seeding and planting of waste,
sloping, abandoned, or eroded lands to
water-conserving and erosion-preventing plants,
trees, and grasses; forestation and reforestation;
rotation of crops, soil stablization with trees,
grasses, legumes, and other thick-growing, soil-
holding crops, retardation of runoff by increasing
absorption of rainfall; and retirement from
cultivation of steep, highly erosive areas and
areas now badly gullied or otherwise eroded.
p. 2204
Mr. John W. Millican - Page 2 (Mw-593)
(d) It is the policy of the legislature to
provide for the conservation of soil and soil
resources of this state and for the control and
prevention of soil erosion, and thereby to
preserve natural resources, control floods,
prevent impairment of dams and reservoirs, assist
in maintaining the navigability of rivers and
harbors, preserve wildlife, protect the tax base,
protect public lands, and protect and promote the
health, safety, and general welfare of the people
of this state, and thus to carry out the mandate
expressed in Article XVI, section 59a, of the
Texas Constitution. It is further declared as a
matter of legislative intent and determination of
policy that the agencies created, powers
conferred, and activities contemplated in this
chapter for the conservation of soil and water
resources and for the reduction of public damage
resulting from failure to conserve those natural
resources are supplementary and complementary to
the work of various river and other authorities in
this state and to other state officers, agencies,
and districts engaged in closely related projects,
and shall not duplicate or conflict with that
work.
You indicate that a number of districts have recently begun
programs to encourage landowners to properly manage and stock farm
ponds. You state:
The basic approach is for soil and water conserva-
tion districts to consolidate pondowners' requests
for fish and arrange for a licensed fish producer
to deliver needed fish to the pondowners at a
central location. In no case are the fish
produced or held by the districts. In some cases
the soil and water conservation districts may add
a handling fee to cover their expenses associated
with the program.
Basically, the district acts to "collect orders and serve as a central
distribution point for landowners to purchase fish from fish producers
licensed by the State of Texas for stocking their individual farm
ponds."
Section 201.102 of the Agriculture Code provides:
A conservation district may lXlrl?y out
preventive and control tlteasllreswithin its
boundaries, including engineering operations,
methods of cultivation, growing of vegetation,
p. 2205
Mr. John W. Millican - Page 3 (Mw-593)
changes in the use of land, and measures listed in
Section 201.001(c) of this code. The conservation
district may carry out the measures on any land
that is owned by the state or a state agency with
the cooperation of the agency administering and
having jurisdiction of the land. If the land is
owned by another person, the conservation district
m=Y carry out the measures on obtaining the
consent of the owner or occupier or the necessary
rights or interests in the land.
An administrative or political subdivision of course has only those
powers expressly granted to it by statute or necessarily implied
therefrom. Stauffer v. City of San Antonio, 344 S.W.2d 158 (Tex.
1961); Attorney General Opinions H-897 (1976); M-1131 (1972).
Nevertheless, we believe that, if a district's board of directors
determines that the fish stocking program is a necessary "preventive
and control measure" under section 201.102, it is authorized to
implement the program as you have described it. Constructing a farm
pond and stocking it with fish certainly constitutes a "change in the
use of land" authorized by that provision.
As to the imposition of a handling fee by a district, it is well
established that, unless a fee is provided by law, none may lawfully
be charged. Attorney General Opinions H-796 (1976): H-669 (1975):
n-443 (i974); V-1426. (1952). See Nueces County v."Currington. 162
S.W.2d 687 (Tex. 1942); McCallarCity of Rockdale, 246 S.W. 654, 655
(Tex. 1922). We conclude that under the facts presented a soil and
water conservation district may not impose a handling fee for serving
as a central distribution point for the purchase of fish to stock farm
ponds. cf. Agric. Code §201.105.
SUMMARY
If the board of directors of a soil and water
conservation district determines that a fish
stocking program is a necessary "preventive and
control measure" under section 201.102 of the
Agriculture Code, it may implement such a program
as described. A district is not authorized to
impose a handling fee therefor.
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
p. 2206
Mr. John W. Millican - Page 4 (?.lW-593)
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Rick Gilpin
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Steve Martin
Jim Moellinger
Bruce Youngblood
p. 2207