Untitled Texas Attorney General Opinion ( 1974 )

TEEEA~TORNEYGENERAL
OF TEXAS
AUIXVI-IN.TZCKAS 787ll
January 17, 1974
The Honorable Joe D. Carter, Opinion No. H- 214
Chairman
Texas Water Rights Commission Re: Validity and effect of
P. 0. Box 13207. Capitol Station allocation of funds appropriated
Austin, Texas 787ll to the Water Rights Commission
to the Neches River Conservation
District (House Bill 139, Page III-
156. Item 13)
Dear Mr. Carter:
Your opinion request provides the following information:
“The Commission has authorized me to seek
your opinion on the following appropriation made:as
Item 13, page III-156, ~by the 63rd~ Legislature. Regular
Session,~ 1973, as a part of the appropriations for this
State agency:
For allocation to the Neches River Conservation District
Year ending August 31. 1974. . . $21,740
Year ending August 31, 1975. . . $21,740
“On page III-159 is a rider which reads as follows:
‘The Nechis River Conservation District,
for whom appropriations are made above,
&all repay the State of Texas from funds
received from sources other thanthe State
of Texas in the amount of the appropriation
made to the District. ’”
p. 999
The Honorable Joe D. Carter, page 2 (H-214)
Concerning this appropriation which is made to the Water Rights Commission
and not to the District, you first inquire, “Is the appropriation valid as to purpose?”
It is well settled that ‘I[ elxcept as limited by constitutional provisions, the
legislative body of the state has absolute control over its finances. . . and it may
direct and control the disposition of [ state] funds. ” 81.C. J. S. States $132 (1953).
The Texas Supreme Court considered it a “well-recognized principle of constitu-
tional law” that the legislature may make any law not prohibited by the state or
federal constitution. Shepherd v. San Jacinto Junior College District, 363 S.W.
2d 742, 743 (Tex. 1963). Thus unless contravened by a constitutional provision,
the appropriation is valid.
Article 16, $ 59 of the Texas Constitution indicates that:
“(a) The conservation and development of all of the
natural resources of this State, including the control,
storing, preservation and distribution of its storm
and flood waters, the waters of its rivers and streams,
for irrigation, power and all other useful purposes,
the reclamation and irrigation of its arid, semi-arid
and other lands needing irrigation, the reclamation
and drainage of its overflowed lands, and other lands
needing,drainage, the conservation and development
of its forests, water and hydro-electric power, the
navigation of its inland and coastal waters, 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 appropriate thereto. ”
The Neches River Conservation District was created by and functions accord-
ing to Article 8280-108, V. T. C. S. It is “. . . a governmental agency, body
politic and corporate, vested with all the authority as such under the Constitution
and Laws of the State. . . . I’ It is authorized:
II. . . to construct, maintain and operate, in the valleys
of the Sabine and Neches Rivers and their tributaries,
p. 1000
The Honorable Joe D. Carter, page 3 (H-214)
within or without the boundaries of such district,
any and all works deemed essential to the operation
of the district and for its administration in the control,
storing, preservation and distribution to all useful
purposes of the waters of the Sabine and Neches Rivers
and their tributary streams, including the storm and
flood waters thereof; and such district shall have and
be recognized to exercise such authority and power
of control and regulation over such waters of the Sabine
and Neches Rivers and their tributaries as may be
exercised by the State of Texas, subject to the provisions
of the .ConstiMion and the Acts of the Legislature. I’
.~.. (Sec. 1, Art. 8280-108 V. T. C.S. )
Furthermore, the District is subject to the continuing supervision of the
Texas Water Rights Commission. Vernon18 Texas Water Code, 5 6.074;
Vernon’s Texas Civil Statutes, Art. 8280-108, $15.
We’assume that the funds in question will be used to advance the statutory
purpose of the District. As the statutory purpose of the District is declar~ed
.by the Constitution to be a public duty and as the District is subject to the
supervision of the State through the Texas Water Rights Commission, we cannot
say as a matter of law that the expenditure is not for a proper state purpose.
Article 16. Section 59 of the Texas Constitution prevents the Legislature
from It. . . [providing] for any indebtedness against any reclamation district
unless such proposition shall first be submitted to .the qualified property tax-
paying voters of such district and the proposftion adopted. ” This provision
applies only to indebtedness which is to be paid from taxes rather than revenue.
Austin Mill & Grain Co. v. Brown County Water Improvement District No. 1,
128 S.W.2d 829 (Tex. Civ. App. Austin 1939). -138 S. W. 2d 523 (Teat. 1940).
As the Neches River Conservation District has no taxing authority, Vernon’s
Texas Civil Statutes, Art. 8280-108, 5 1, the Legislature is not providing for
indebtedness against the district in an unconstitutional manner.
1 We find no constitutional prohibition against the appropriation of these
> funds or the requirement that they be repaid to the State and thus your first
r question is answered in the affirmative.
\ p. 1001
0;
The Honorable Joe D. Carter, page 4 (H-214)
Your second question is, “Can the Texas Water Rights Commission pay
the money in a lump sum to the District? ‘I
Appropriations of this nature are often paid in a lump sum. In Attorney
General Opinion MS-88 (1953), the Comptroller was allowed to pay a $30, 000
appropriation to the Sabine River Authority in a lump sum. This appropriation
was a loan of the same nature as the one in question here. Similarly, Attorney
General Opinion M-1044 (1972) considered an appropriation providing, “There
is hereby appropriated $5, 000 out of the General Revenue Fund for the biennium
beginning September 1, 1971, for all necessary operating expenses in conjunction
with the operation of Elm Creek Water Control District. ‘I The opinion concluded,
I,. . * that the Legislature intended that the District might receive the full lump
sum at any time during the biennium for which it was appropriated. ‘I’ A $50, 000
appropriation to the Red River Authority was authorized as a lump sum by Attorney
General Opinion WW-1188 (1961).
There is no language in the appropriations indicating payment in other than
a lump sum and, therefore, you are advised that lump sum payments are autho-
rized on an annual basis.
Your third question is, “What administrative documents are needed to
accomplish the loan and repayment thereof to the State? ”
In the body of your letter you pose several related questions as follows:
“Since this has been referred to as a ‘loan’ from the
State, what security is to be required, what papers
must be processed and what duties, if any, does this
Commission have to supervise and service the loan?
On repayment of the money, under what appropriation
number will it be deposited into the~State Treasury?”
You have correctly described the appropriation as “somewhat vague” and we
have found no specific guides to answer your inquiries.
The legislature has not provided for a repayment schedule or required secu-
rity. As there are no specific legislative guidelines for repayment, we believe
p. 1002
The Honorable Joe D. Carter, page 5 (H-214)
the procedure for repayment should be determined by the District and the
Commission in consultation with the Treasurer, the Comptroller and the State
Auditor. Any payment schedule or other arrangement agreed to between you
and the district should be reduced to writing, but no formal documents are
required. We do not see any provision requiring the district to put up security
for the loan. The repayments, although it is likely they will be administered
by the Water Rights Commission, will be to the credit of the State as a whole
rather than the Commission.
SUMMARY
The appropriation to the Texas Water Rights Commission
for allocation to the Neches River Conservation District .is valid.
Said appropriations may be paid annually in a lump sum. Repayment
by the District, as called for in the appropriation, shall be made under
arrangements to be made between the Commis,sion and. the District
in consultation with the Treasurer, the Comptroller and the State
Auditor and the money should be deposited inthe Treasury to the credit
of the State.
Attdrney General of Texas
DAVID M. KENDALL, Chairman
Opinion Committee
p. 1003