Untitled Texas Attorney General Opinion

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THE ATTORNEY GESERAL
OF-TEXAS
Ausrrmr. T-a 76711
April 12, 1973
Honorable Cib Lewis, Chairman Opinion No. H- 28
House Committee on Natural Resources
House of Representatives Re: Whether the Interlocal
Capitol Station 2910 Cooperation Act (Art. 4413(32c),
Austin, Texas 78767 V. T. C. S. ] would permit
conservation and reclamation
districts to contract for their
fire protection needs with home
rule cities or rural fire pre-
Dear Representative Lewis: vention districts.
You have asked whether the Interlocal Cooperation Act, Article
4413(32c). Vernon’s Texas Civil Statutes (Acts 1971, 62nd Leg., Ch. 513,
p. 1971). would permit conservation and reclamation districts to contract
for their fire protection needs with home rule cities or rural fire
prevention districts.
The Interlocal Cooperation Act only authorizes local governments
to contract for another local government to perform for it a service
which all the parties “are legally authorized to perform”. Art. 4413( 32~).
5 4(b), V. T. C. S. Therefore, a conservation and reclamation district
may contract for fire protection only if it has authority to provide that
service itself.
The powers of such districts are found in Article 16, 5 59(b), Texas
Constitution, which after authorizing the creation of conservation and
reclamation districts, provides:
‘I. . . which districts rhall be governmental agencies
and bodies politic and corporate with such powers of
government and with the authority to exercise such
rights, privileges and fun.ctiona concerning the subject
matter of this amendment as may be conferred by law. ”
(Emphasis added)
The powers of such districts therefore are limited to the subject matter
of § 59 and by the functions conferred upon them by appropriate legislative
enactment within the scope of 5 59(a).
p. 118
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Honorable Gib Lewis, page 2 (H-28)
The “rubject matter” is defined in 5 59(a) ar:
“The conservation and development of all of
the natural rerources of thir State, including
the control, rtoring, preclervation and distribution
of ita storm and flood waters, the water8 of itr
river8 and streama, for irrigation, power and all
other useful purposes, the reclamation and irrigation
of its arid, semi-arid and other landa needing irrig-
ation, the reclamation and drainage of its overflowed
landr, and other landn needing drainage, the conser-
vation and development of ite fore&r, water and hydro-
electric power, the navigation of its inland and
coastal waters, and the preservation of all cluch
natural reeourcea of the State are each and all hereby
declared public rights and duties; and the Legislature
e.hall paar all ouch lawr as may be appropriate thereto. I’
The Supreme Court of Texan in Deason v. Orange County Water
Control and Improvement District, 244 S.W.2d 981 (1952), held that
the purpose of providing fire protection “to serve moat of the houses,
residential and businena, in the district”, was outside the “subject
matter”.
“Section 59(a), Article 16 . . . contains no
language which would support a holding that the
people in enacting the amedment contemplated
that a water control and improvement district
created for the purpose of conserving and de-
veloping the natural rerourcea of the district
would have the power to provide firefighting equip-
ment and appliances for a town within aaid dirtrict. ”
(244 S. W. 2d at 984)
Under Deacon. it ia our opinion that dietricts organized under
Article 16, $ 59, having no authority to provide fire protection, are
likewise unable to contract for ouch fire protection under the Inter-
local Cooperation Act.
Your letter specifically arka whether the use of water coneerved by
the district for firefighting would be a “urreful purpose” within the
meaning of that portion of 5 59(a) which states aa one of the purposea
p. ll9
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Honorable Gib Lewir, page 3 (H-28)
of that provision i# the conservation of water and itr distribution for
“all other useful purposes”.
In our opinion, firefighting would be a useful purpose.. However,
the conrervation and distribution is authorized, not the use, and the
quoted language would not authorize operation of a fire department.
You next ask whether the purpore of “conrervation and development”
and preservation and conservation of resource8 ctated in 5 59(a) could be
construed broadly enough to allow the leare of or contract for the use
of firefighting equipment.
In our opinion, a forested district having within ita purpar es the
conservation and preservation of forests would be authorized by 5 59(a)
to employ ouch means ae were reasonably necessary for the protection
of fore&r from fire and to contract for those services to be performed
by another local government under the Interlocal Cooperation Act. The
Act would not authorize contracted arrangementa for fire protection
of all property within the district.
Finally, you aak whether Deason cannot be dietinguirhed because
the Interlocal Cooperation Act was paared since Deason was decided.
The Legislature cannot expand or modify conrtitutional limitationr.
Arnold;. Leonard. 273 S;W. 799 (Tex. 1925); Bexar County Hospital
District v. Crosby. 327 S.W.2d 445 (Tex. 1959). The Interlocal
Cooperation Act doee not attempt to do so.
SUMMARY
Conservation and Reclamation Dirtrictr, organized
purruant to Article 16, 4 59, Conrtitution of Teue, are not
authorized to contract with other local governments under
the Interlocal Cooperation Act [Art. 4413(32cHV. T. C. S. )]
for fire protection within the district except where necessary
to protect the property of the district itself and then only to
the extent the district itself would have been authorized
to furnirh ouch protection.
Very truly your*,
c/ p. 120
Honorable Gib Lewis. page 4 (H-28)
APPROVED:
DAVID h4. KENDALL, Chairman
Opinion Committee
p. 121