Untitled Texas Attorney General Opinion

THE ATTOIWEYGENEEZAL
QF TEXAS
AUSTIN. TEXAS 7SW11
DHAWP‘OHU c:. MAxrrlN
February 28, 1967
Mr. Hugh C. Yantls Opinion No. ~-32
Executive Secretary
Te;zzrater Pollution Control Re: Constructionof Senate
Bill 204 and House Bill
1100 West 49th Street 448 of the 60th Legls-
Austin, Texas 78756 lature, Identical bills
which would establish
a Texas Water Quality
Board as the successor
to the Texas Water
Dear Mr. Yantis: Pollutlon Control Board.
In view of the provisions of Section 51 of Article III
of the Constitutionof Texas prohibitinggrants of public monies
to any individual,association of Individuals,municipal or other
corporations,you have asked the following questions relatln to
448 of the t0th
the provisions of Senate Bill 204 and House Bl.1~1
Legislature (identicalbills establlshlngthe Texas Water Quality
Board) prescribing its powers, duties, functions and procedures
and providing for the establishmentof quality waters in the State
and the control, prevention and abatement of pollution:
"(1) May a grant of State funds be made
to a governmentalentity for constructionof
waste collection,treatment and disposal facllltles
for water quality control purposes, as provided In
the proposed Texas Water Quality Act?
"(2) May a grant of State funds be made to
a governmentalentity for the purpose of planning
water quality control programs and facilities,as
provided In the proposed Act?
"(3) May a loan of State funds be made to a
governmentalentity for the purposes of planning
water quality control program! and facllltles,as
provided In the proposed Act?
Under the provisions of Section 11 of the proposed Act,
the Board is authorized to make grants to any munlcipallty or
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m. Hugh c. Yantls, page 2 (M-32)
Interstate agency 'as such terms,are defined In the Federal Water
Pollution Ccntrol Act (33 USC 466, et seq.) or to any local govern-
ment for the constructionof necessary treatment works and necessary
sewer and sewerage systems, treatment systems and disposal systems.
The Board is further authorized to make grants or Interest-free
loans to certain planning agencies (governmentalagencies) for
developing an effective comprehensivewater quality control abate-
ment plan. Thus, such grants or Interest-freeloans of State
funds to planning agencies are made for governmentalpurposes
and are not made for any private purpose.
Section 51 of Article III of the Constitutionof Texas
provides in part:
"The Legislature shall have no power to
make any grant or authorize the making of any
grant of public moneys to any Individual,associa-
tion of individuals,municipal or other corporations
whatsoever; . . .'I
In construing the above quoted provisions it was held In State
V. city of Austin, 160 Tex. 348, 331 S.W.2d 737, 742 (1960):
'Here the Legislaturehas empowered the
State Highway Commission to construct Interstate
and defense highways and to direct munlclpalltles
and utility companies to relocate their facilities.
That grant of authority is conditioned,however,
by the requirement that the utilities be reimbursed
for the expense which they incur. In our opinion
this does not constitute the release of an .obliga-
tion to the state within the meaning of Article III,
Section 55, of the Constitution. See State ex rel.
Jones v. Chariton Drainage District No. 1, 252 MO.
345, 158 S.W. 633.
"Article6674w-4 obviously does not involve a
gift or loan of the credit of the state unless It
can be said that payment of relocation costs amounts
to a grant 07 public money in violation of Article
, Section 51. The purpose of this section and
of Article XVI Section 6, of the Constitution1s
to prevent the'appllcatlon.of public funds to private
purposes; in other words,,to prevent the gratuitous
grant of such funds to any individual or corporation
whatsoever.
-- See Byrd.v. city of Dallas, 118 Tex. 28,
6W.2d 738. Statutes analogous to House Bill 179
have been upheld against this or similar constitutional
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Mr. Hugh C. Yantls, page 3 (M-32)
attacks by the appellate.courts,,of
at least
five other jurisdictions.. . .
Thus, a grant of State funds to a political subdlvlslon
of the State for governmentaluse of such money is not prohibited
by the provisions of Section 51 of Article III of the C&-<utlon
of Texas'nor any other provision of our'state Constltutlon. Bexar
County v. Linden, 110 Tex. 339, 220 S.W. 761 1920); Road.Dlsm
0. Shelby County V. Allred, 123 Tex. 77, a s.w.2a lb4 (1934);.
Jeffeison County v. Board of County and District Road Indebtedness,
143 T 99 182 S W 2d 908 l79-44) city of Aransas Pass v. Keeling,
112 T:;: 334, 247 i.;. 818 (1923).;
.
In Bexar County v. Linden, supra, the Court stated In
construing Section 31 of Article m of the Constitutionof Texas:
"The giving away of public money, its ap-
plication to other than strictly governmental
purposes, is wfiatthe provision Is intended to
guard against.
In Road District No. 4, Shelby County v. Allred, supra,
the Court at page lb9 held In construing Section 51 of Article III
of the Constitutionof Texas:
“It Is the settled law of this state that
the above-quotedconstitutionalprovision is ln-
tended to guard against and prohibit the granting
or giving away of public money except for strictly
governmental purposes. The prohibition Is an ab-
solute one, except as to the class exempted there-
from, and operates to prohibit the Legislature from
making gratuitous donations to all kinds of corpora-
tions, private or public, municipal or’polltlcal.
Bexar County v. Linden, 110 Tex. 339, 220 S.W. 761.
It is clear from the above that a road ‘districtis
a corporationwithin the meaning of the above-quoted
constitutionalprovision.
“It Is also the settled law of this state that
the above-quoted constitutionalprovision does not
prevent the appropriationor granting of state funds
to municipal and political corporationswhen the
money Is granted to be used for a governmentalpurpose.
Bexar County v. Linden, 110 Tex. 339, 220 S;W. 761;
City of Aransas Pass v. Keeling, Attorney General,
112 Tex. 339, 247 S.W. ala, 819.
"It cannot be doubted that the effect of sec-
tion 12 of the special law under considerationhere
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-
Mr. Hugh C. Yantis, page 4 (M-32)
has effect to make a donation of state funds to
the road district. If this donation is a mere
gratuity, It Is prohibited by section 51 of
article 3, supra. On the other hand, If the
donation Is made and granted to the road district
for a governmentalpurpose, it is not a gratuity
and not prohibited by such constitutionalprovision.
Bexar County v. Linden, supra; City of Ara$sas Pass
v, Keeling, Attorney General, supra. . . .
In view of the foregoing,you are advised that the
Legislature may authorize the grant or the loan of State funds
to be made to a governmentalentity for constructionof waste
collection, treatment and disposal facilities for water qualIt>
control purposes, and planning water quality control programs
and facilitiesas provided in Senate Bill 204 and House Bill 448
of the 60th Legislature.
SUMMARY
The Legislaturemay authorize the grant or
the loan of State funds to be made to a govern-
mental entity for constructionof waste collection,
treatment and disposal facilities for water quality
control purposes, and planning water quality control
programs and facilitiesas provided In Senate Bill
204 and House Bill 448 of>he 60th Legislature.
Prepared by John Reeves
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Hawthorne Phillips, Chairman
W. V. Geppert, Co-Chairman
Kerns Taylor
Pat Bailey
Roger Tyler
Malcolm Quick
STAFF LEGAL ASSISTANT
A. J. Carubbl, Jr.
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