Untitled Texas Attorney General Opinion ( 1959 )

. .
E O~KNEY GENERAL
OFTEXAS
fb;mra&e R. Ii. Cory Opinion NO. W-621
State Affairs Committee Re: Constltutlonallty of H.B.
Austin, Texas 142, of the 56th Leglsla-
ture, authorizing the State
Parks Board to acquire pub-
lic sites in proximity to
the shores of public lakes,
bays and gulfs for recrea-
Dear Mr. Cory: tlon purposes.
You have asked our opinion on the constitutionality of
H.B. 142, specifically in regard to whether the words "on or in
proximity to" are too vague and indefinite to authorize a condem-
nation.
The provision of the bill in question Is:
"Section 1. The State Parks Board Is hereby
authorized to acquire, by gift, purchase or con-
demnation, and to improve and maintain public sites
on or In proximity to the shores of public lakes,
bays and gulfs 'for parking vehicles, for camping,
picnicking, boat launching, and other recreational
purposes. The acquisition of such properties and
the imprdvement and maintenance of same by the State
Parks Board shall be covered specifically by funds
allocated under the current appropriations of the
Texas Legislature. The proceedings for condemnation
of property under this Act shall be Instituted and
conducted in accordance with Title 52 of the Revised
Civil Statutes."
There is no constitutional requirement that the Leg-
islature limit the location of land that may be taken under a
condemnation statute. 1.6 Tex.Jur., Eminent Domain, 8 130 states:
. .
Honorable R. H. Cozy, page 2 (~-621)
“It seems that the plenary power of the leg-
islature ,over the subject of eminent domain autho-
rizes It to designate, In each delegation of the
right to exercise the power, the particular prem-
ises which the grantee may take. The general pur-
pose being public, the legislative body may define
the extent of the appropriation necessary to the
public use. But this it has not, for the most
part, attempted to do, because it would be obvi-
ously Impracticable to fix in advance the amount
or location of land which a grantee some day might
condemn for one or more of its purposes. . , .n
However, since H.B. 142 restricts condemnation there-
under to land !‘on or in proximity to” public lakes, bays, and
gulfs it would be a fact question whether a given tract was so
situated. In McGhee Irrigating Ditch Co. v. Hudson, 22 S.W.
398 (Sup.Ct. 1893) it was contended th t condemnation Dower
granted In Acts of’1889, 21st Leglslatu:e, Regular Session,
page 100, chapter 88, was void for uncertainty. The first sec-
tlon of the act stated:
II . that the unappropriated waters of every
river k’natural stream within the arid portions of
the State of Texas, in which, by reason of the ln-
sufficient rainfall, irrigation is necessary for
agricultural purposes, may be diverted from its na-
tural channel. , . .‘I
The Court approved the Court of Civil Appeals holding by stating:
11 the act was not Inoperative because of
Its fail&i to designate the territory which should
be deemed the ‘arid portion of the State’ . . .
This would have probably been impracticable . . .
This was a question of fact to be determined as any
other fact,.”
The Court in Brazos River Conservation & Reclamation
Dlst. v. Harmon, 178 S.W.2d 281 (Civ.App. 1944, ref. w.o.m.),
stated:
“The right to exercise the power of eminent
domain must be conferred by statute, either In
express words or by necessary implication.”
- .
Honorable R. H. Cory, page 3 (WW-621)
'Proximity" has a sufficiently definite meaning to
convey the legislative intent. Webster's New International
Dictionary, 2nd Edition, Unabridged, defines "proximity' as
follows:
"Quality or state of being near or very near
in time, place, causation, Influence, relationship,
etc.; Immediate or close propinqulty."
In Lacky v. Gulf C & S Ry. Co., 225 s.w.2d 630 civ.
App. 1949), It was held that the stat&e (Sub. (d), Sec. 86,
Art. 6701d, V.A.C.S.) requiring a vehicle driver, approaching
a railroad crossing to stop within 50 feet and not less than
15 feet from nearest rail and proceed no farther until he can
do 80 safely, when approaching train Is "plainly visible" and
Is in "hazardous proximity" to the crossing, Is not unconsti-
tutional because of indefiniteness.
We are of the opinion that the phrase "on or In prox-
imity" as used in H.B. 142 is specific enough to define the re-
striction intended therein, and that, therefore, H.B. 142 is
not unconstitutional for indeflnlteness.
SUMMARY
H.B. 142 of the 56th Legislature authorizing
the State Parks Board to acquire public sites in
proximity to the shores of public lakes, bay&and
gulfs for recreational purposes Is not unconstltu-
tional.
Yours very truly,
WILL WILSON
Attorney General of Texas
BY
JAO:dhs
Assistant
APPROVED:
OPINIONCOMMITTEE:
Ceo. P. Blackburn, Chairman
Houghton Brownlee, Jr.
Joseph Q. Rollins, Jr.
James R. Irlon, III
W. Ray Scruggs
REVIEWED FOR THE ATTORNEY GENERAL
BY: W. V. Geppert