Untitled Texas Attorney General Opinion ( 1974 )

March 1, 1974
The Honorable Fred Wendorf Opinion No. H- 251~
Chairman
Texas Antiquities Committee Re: Responsibilities of Texas
Box 12276, Capitol Station Water Development
Austin, Texas 78711 Board under Texas
Antiquities Code
Dear Dr. Wendorf:
You have requested our opinion on two questions:
1)Does the Texas Antiquities Code impose upon the
Texas Water Development Board a responsibility
to study, investigate, salvage or otherwise amelio-
rate the destructive impact reservoir projects it is
funding will have on the archeological and historic&l
resources they will inundate?
2)Does the current General Appropriations Act
permit the Water Development Board to expend
funds for the purpose of studying and investigating
the archeological and historical sites in a particular
reservoir prior to their inundation and destruction?
Your questions have been prompted because archeological and histo-
rical sites have been located in an area where a Large reservoir is to be
constructed by a local municipal water authority with funds to be loaned it
by the Water Development Board. In connection with your questions General
Counsel for the Board has asked a related question, viz. :
3)“Is a political subdivision which has been otherwise
authorized to construct a dam required as a condition
of impoundment to obtain a permit from the Texas Anti-
quities Committee if the impoundment will cover arch-
eological sites? ”
p. 1162
The Honorable Fred Wendorf, page 2 (H-250)
We will first focus our attention on this third question because our
answer to it will clarify the responsibilities of the Water Development
Board about which you are primarily concerned.
The purpose of the Texas Antiquities Code, Article 6145-9, Vernon’s
Texas Civil Statutes, is clearly set out in $ 2 which provides:
“It is hereby declared to be the public policy and in
the public interest of the State of Texas to locate,
protect, and preserve all sites, objects, buildings,
pre-twentieth century shipwrecks, and locations of
historical, archeological, educational, or scientific
interest . . . in, on, or under any of the lands in
the State of Texas. . . .I’
Section 6 of the Antiquities Code provides:
“Sec. 6. All . , , sites, objects, buildings,
artifacts, implements, and locations of historical,
archeological, scientific, or educational interest
. . . that are located in, on or under the surface of
any lands belonging to the State of Texas or by any
county, city, or political subdivision of the state are
hereby declared to be State Archeological Landmarks
and are the sole property of the State of Texas and all
such sites or items located on private lands within the
State of Texas in areas that have been designated as a
‘State Archeological Landmark’ as hereinafter provided,
may not be taken, altered, damaged, destroyed, sal-
vaged, or excavated without a permit from, or in vio-
lation of the terms of such permit of, the Antiquities
Committee. I’ (emphasis added)
Section LO provides:
“Sec. 10. The Antiquities Committee shall be
authorized to issue permits to other state agencies or
p. 1163
The Honorable Fred Wendorf, page 3 (H-250)
institutions and to qualified private institutions,
companies, or individuals for the taking, salvaging,
excavating, restoring, or the conducting of scien-
tific or educational studies at, in, or on State
Archeological Landmarks as in the opinion of the
Antiquities Committee would be in the best interest
of the State of Texas. . . . No person, firm, or
corporation shall conduct any such operations on any
State Archeological Landmark herein described with-
out first obtaining and having in his or its possession
such permit at the site of such operation, or conduct
such operations in violation of the provisions of such
permit. ” (emphasis added)
Section 17 provides:
“Sec. 17. Any person violating any of the pro-
visions of this Act shall be guilty of a misdemeanor,
and upon conviction shall be punished by a fine of not
less than Fifty Dollars ($50.00) and not more than One
Thousand Dollars ($l,OOO.OO) or by confinement in jail
for not more than thirty (30) days, or by both such fine
and confinement. ”
While the syntax used in 5 6 of the Antiquities Code is somewhat
unclear, we think it makes sense if read as follows:
“All . . . sites, objects, buildings, artifacts,
implements, and locations of historical, archeological,
scientific, or educational interest . . . that are located
in, on or under the surface of any lands [owned by] the
State of Texas or by any county, city, or political sub-
division of the state are hereby declared to be State
Archeological Landmarks and are the sole property
of the State of Texas and [no] such sites or items [in-
cluding those] located on private lands. . . as here-
after provided, may . . . be taken, altered, damaged,
destroyed, salvaged, or excavated without a permit
from, or i,n violation of the terms of such permit of,
the Antiquities Committee. ”
p. 1164
The Honorable Fred Wendorf, page 4 (H-250)
Section 7 of the Antiquities Code permits the designation of “State
Archeological Landmarks” on private land, if the recordable, written
consent of the owner has been obtained. Section 5 of the Antiquities
Code declares that all sunken or abandoned pre-twentieth century ships
and wrecks of sea and all contents thereof and treasure imbedded in the
earth “located in, on or under the surface of lands belonging to the
State of Texas, including its tidelands, submerged lands and the beds
of its rivers and the sea within the jurisdiction of the State of Texas . . .
are the sole property of the State of Texas and may not be taken, altered,
damaged, destroyed, salvaged or excavated without a contract or permit
of the Antiquities Committee. ” (emphasis added)
The peculiar wording of $6 of the Antiquities Code has suggested
to some that its “taken, altered, damaged, ” etc., clause applies only
to those archeological landmarks found on private lands. Support for
this proposition is claimed from the legislative failure to include “agency”
within the 5 10 command that “No person, firm, or corporation shall con-
duct any such operations. . . without first obtaining. . . such permit
. . . . ” But we believe the Legislature intended to guard and protect
archeological landmarks found on publicly owned property with the same
vigor as those found on private land and that it intended to forbid unper-
mitted destruction or alteration of such landmarks by government employ-
ees or officers, as well as by private persons.
The Antiquities Committee is specifically authorized by $10 of the
Antiquities Code to issue permits to state agencies. Section 19 of the Code
authorizes and directs the chief administrative officers of all state agen-
cies to “cooperate and assist” in carrying out the intent of the Act. Such
language, in this case, imports a mandatory duty. See 53 Tex. Jur. 2d
Statutes 5 18. Compare Attorney General Opinions M-851 (1971), M-840
(1971), M-688 (1970), M-394 (1969) and V-293 (1947).
It is clear from the 5 5 provisions regarding shipwrecks and treasure
found on public lands that the “taken, altered, damaged” prohibitory lan-
guage in 5 6 was not meant to apply solely to landmarks found on private
property. We do not think the Legislature intended to prohibit the destruc-
tion of archeological landmarks found in riverbeds, but exclude from such
p. 1165
The Honorable Fred Wendorf, page 5 (H-250)
a prohibition those found on other public property, particularly when it
specifically claimed them both as State property.
In our opinion, then, 5 6 of the Antiquities Code requires that the
permission of the Antiquities Committee be obtained in the form of a
permit before any site of historical or archeological interest located
on public lands can be altered, damaged, destroyed, etc. When a local
political subdivision plans to construct a reservoir which possibly will
have a destructive impact on archeological and historical sites in the
area to be inundated, it is required by 5 6 to obtain a permit before it
proceeds. We need not now review the. standards to be followed by the
Antiquities Committee when exercising its permit power.
Turning now to the responsibility of the Water Development Board,
we note that it is in a position quite different from that of a local subdivi-
sion constructing a reservoir. The Water Development Board was created
by Article 3, s49c, of the Texas Constitution and is authorized to sell bonds
to establish the Texas Water Development Fund which “shall be used only
for the purpose of aiding or making funds available upon such terms and
conditions as the Legislature may prescribe, to the various political sub-
divisions or bodies politicand corporate of the State of Texas . . . .I’
Statutory provisions dealing with the duties and powers of the Board are
found in,6 5 11.00 et seq. of the Water Code, V. T. C. S. Under these pro-
visions the Board’s primary duty is to investigate the feasibility of water
projects proposed by local political subdivisions and, if it approves them,
to loan the subdivision the funds necessary for the project out of the Texas
Water Development Fund.
The Water Development Board does not itself engage in the actual
construction of water projects. Since the Board itself is not engaged in
any construction, it would not be required by 8 6 of the Antiquities Code to
obtain a permit when a project it intends to fund might have an impact on
archeological or historical sites. Instead the permit would have to be
obtained by the local political unit actually doing the construction.
p. 1166
The Honorable Fred Wendorf, page 6 (H-250)
While the Water Development Board is not subject to the 5 6 permit
requirement, it is not without responsibility in this regard. Although
primary responsibility for accomplishment of the Antiquities Code’s pur-
pose is given to the Antiquities Committee, 5 19 does state:
“The chief administrative officers of all state
agencies are authorized and directed to cooperate
and assist the Antiquities Committee and the Attorney
General in carrying out the intent of this Act. ”
The intent of the Act is expressly stated in 5 2 to be the location, preser-
vation, and protection of all sites or objects of historical or archeological
significance in, on, or under any of the lands in Texas.
Thus, the Antiquities Code imposes on all state agencies a mandatory
obligation to assist the Antiquities Committee in locating, protecting, and
preserving Texas’ historical and archeological resources. But nowhere in
it does it specify the nature and degree of assistance necessary in order to
satisfy this obligation.
The effect of the Code’s silence on this matter is to vest considerable
discretion in the chief administrative officer of each state agency as to the
extent of assistance which will be offered the Antiquities Committee. And
of course each agency chief’s exercise of this discretion is strictly limited
by the terms of the legislation creating his agency and by the provisions of
the bills appropriating funds for its use.
As a state agency, the Water Development Board does have a respon-
sibility to assist the Antiquities Committee in locating, protecting, and
preserving archeological and historical resources that might be destroyed
by the reservoir projects it funds. But it is allowed considerable discretion
in determining how to fulfill its responsibility to cooperate and assist, and,
in exercising this discretion, it may neither exceed the authority granted in
its enabling statute nor spend its funds for purposes other than that for which
p. 1167
The Honorable Fred Wendorf, page 7 (H-250)
they were appropriated. Whether any particular act of assistance can
be undertaken by the Board without abusing its discretion or overrunning
its authority will have to be determined on a case-by-case basis. See
Article 5421q, V. T. C. S.
For example, 5 11.062 of the Water Code, Vernon’s Texas Codes
Annotated, authorizes the Board’s staff to study and investigate the state’s
water resources in order to determine. the most suitable locations for
future water facilities including reservoir.sites and to make estimates of
the cost of such facilities. Item 26 of the Board’s appropriations for fis-
cal 1974 and 1975 (General Appropriations Act, Acts 1973, 63rd Leg., ch.
659, p. 1786, 2043) makes funds available for “Topographic mapping,
water studies and investigations. ” A rider attached to this provision
explains that:
“Those funds allocated the Water Development
Board under the appropriation for topographic map-
ping, water studies and investigations shall be used
for. . . other studies and investigations by the State
‘or in cooperation or by contract with other govern-
mental agencies, institutions or non-governmental
entities. . . . ‘I (p. 2046)
These statutory provisions give the Water Development Board both
the authority and wherewithal to assist the Antiquities Committee in locating
and investigating historical objects, archeological sites, etc., which might
be destroyed by the reservoirs it is funding. The expense incidental to
avoiding destruction of such artifacts is actually a part of the cost of con-
structing a reservoir, and the Board should be aware of the total cost of the
facilities for the construction of which it provides funds.
SUMMARY
Section 6 of the Antiquities Code requires a
permit from the Antiquities Committee to be obtained
before any historical or archeological resources located
on public lands can be altered, damaged, destroyed, etc.
p. 1168
The Honorable Fred Wendorf, page 8 (H-2-50)
While a local political subdivision planning to
construct a reservoir which will affect historical or
archeological resources must comply with the permit
requirement, the Water Development Board need not
since it only loans money for the project and does
not engage in the actual construction. The Board
does have a responsibility to assist the Antiquities
Committee in locating, protecting and preserving
historical and archeological resources, but it has a
wide degree of discretion in determining how to meet
this respohsibility.
The Board has been provided with funds which
can be used to study the antiquities which will ,be
affected by a reservoir project it is funding, but it
may not engage in salvaging operations.
Very truly yours,
Attorney General of Texas
APPR VED:
\.R
7
T.Arb&Y\F. Y&K. First Assistant
DAVID M. KENDALL, Chairman
Opinion Committee
p. 1169