Untitled Texas Attorney General Opinion

t -. -
R- ‘78
Honorable Victor C. Marshall
Executive Direotor
Texas State Soil Conservation Bward
2nd Floor, First State Bank Buihding
Temple, Texas
opinion Ho, V-69
Re: May the San Jaainto So&t EonsBrve-
tion District ooutract with the
San Jaointo River ConseWation
and Reclamation District to hold
aaid ReolamM#on Diet&at $?88
Prom liabillt,y, resUlti
the negligent u5e of equY pment
and the negligent aOt8 OP smploy-
ees operati.ng such equipment ,
during the time that suoh equip-
ment and employees are 00 1~60
Prom the San Jacinto River Oon-
servatLon awl ReolamaOiM @ij,@
trict but ape under the coat&l
of the San 8acinto W.1 CaMOltPa-
tiwn District?
Dear Sir:
The ~wrtion pseeentad 133 your laQt#P ai Jan-
uary 25, 1947, i e Whether the Board oP Bk\pervieOra @P the
San Jacinto Soil CBrservation District may* under the
@State $011 Cancservet ion Law”) Article 165e-4, V.A.C.S. 3
oontract with the #aanJeointo River Coneervatlol al~d Rw-
lamafioa District, a8 follows:
*Second Party agrees to hold harm-
less and indemalty Pfrat Party Prom any
llabfllties tax damagea or negligence,
or for eny *of 0P the operator 04 employ-
ees wed in operating such equlpmetlt or
material while same 18 under the direa-
tfon of Second Party, and until. it 1s Xa-
turned to First Party,,”
--.
Hon. Victor C. Marshall - page 2 (V-69)
The quot@a provision is fouti in Paragraph
5 of the proposed csntraot between the two districts,
which was attaohed to ymr ).&tteP and i8 zyburaeil here-
with. For OOnvsnisac.9 the @a5 Jacinto S& Canserva-
$10~1 kllatriot w&l ba Limtter refrrrd t9 as “Con-
servation RMrfOt* In the Ban Jga65to Ittver CQnss&a-
tion and Reclamation wj,%l Ire here%nafter raw
ferred to as ~Reo~amntioE ]tlistriOtn,.
The equfpmedt and materials referWi to in
the qubted section are not identiiied by the Ocatract ,
but it is ass-d that suck equipment and matOria1 con+
sists et bulMOeers, gra&xs end Qther maohines Of a
type usua$ly oned la rosa wwka Your file fndioates
that &he Conser’ratYp& Hst9d&t ia reae5tly using a
maintaiaer Pucalahrkd by the *iaX N&ion BietTt&t for
terracing and drabage roMci+
The questiom may be stated in mere general
terms, as PollOwws:
May one State agen,cy oontract with anether
State agency to assume tortious &iabi&*ty $%sulting
Prom the negligent use of’ equipment and the negligent
acts of the em loyees in operating suob equipment dur-
ing the time t ii at such equipment an& bmployees are un-
der the control and direotiO5 of the borrowing agenay,
The solution of the problem presented re-
quires an understanding of the nature and oP the powers
and duties of the State agencies involved,
The San, Jaointw BQ$l Conservation Bi&rlot
was oreated under Art%Cle~l65a-4, V.A.C.S., Acts 1939,
g. 7, a8 amended Acts 1941, pB 491, and !&~&VII as Ohs
State Soil Conservation La@‘. A Soil Connenatien
&strict formed under this Aot vlsh@&l oonstltuta a
governmental division eP this &ate dna a ‘14ublic body
oorporats and polktic 8xeroi8iag pub&j+0 powers”; with
power to calcry out preventive and Oontrol measure8
through eagi&@sring opera&:bum, metheds 02’ aulbioatf on,
growing Of vegetdtioa, changrs in use of Land; to enter
into ,agreements with any agepoy, gWernmenta1 or Otber-
wise, in the carrying on of aresion abntrel. and preoen-
tion operations; to purchase, improve and dispose 0P
real and personal property; to make available to land-
owners engineering machinery and equipment, Pertillzer
and seeds; to construct buildings;, to purchase or oth-,
erwise take over Federal soil erosion prOjeots; to sue
, -
Hoa Victor C. Marshall - Page 3 (V-69)
and be sued in the name of the district; to make and
execute contracts or other instruments necessary or con-
venient to the exercise of its powers. The power to
levy taxes is specifically withheld. A district is re-
quired to obtain from the Seoretary of State a certifi-
cate of organization, and when this is accomplished,
"the district shall constitute a governmental subdiri-
sion of the State and a.public body corporate and poll-
tic.” Upon dissolution, the District is required to
obtain a certificate to that effect from the Seoretary
of State.. The creation 65 a district, its projects and
its dissolution Is at the will of the landowners within
the district expressed through elections.
The San Jacinto River Conservation ana Recla-
mation District was created by Acts of 1937. 43th Is
B copied In V.A.C.S., Vol, 21: begin&&’
at page 617, and-the various amendments thereto, begin-
ning at page 148, Pocket Part, V.A.C.S., Vol. 21, all
initiate& under the constitutional authority granted la
Article 16, Sec. 59 of the Constitution of Texas, under
whloh Constitutional amendment the districts "ahall be
governmental agencies and bodies politic and corporate
with such parers of gorernment and the authority to exe-
cute such rights, privileges and functions concerning
the subject matter of this amendment as may be oonferred
by law”; the purposes of such distrlots are taken from
the Constitution~an8 are stated in the Act to be, “the
control, storing, preservation and distribution of its
storm and flood waters, the waters of ita rivers and
streams for irrigation, pwor and all other useful pur-
poses, the reclamation and irrigation of its arid, semi-
arid, and other lands needing Irrigation, the reclama-
tion and drainage of its overflewed lands, and other
land needing drainage, the conservation and development
of its forests, water and hydra-eleotric power, the navl-
gation of its inland and coastal waters, and the preeer-
ration and conservation of all such natural resources of
the State.” Districts are granted broad powers in the
Act and in addition are granted the same powers conferred
upon Water Control and Inprovement Districts by Chapter :~
25,, Acts 1925 (Article 7880-l to 1470 6, inclusive,
V.A.C.S.), and under these grants such districts may con-
tract generally in furtherance of their purposes; aoquiro
by purohase, condemnation or other means lands and rights
of way; au8 and be sued in the ‘name of the district; lery
taxes; issue bonds; sell water, water oonneotions, power,
electric lmr g y , ana other services furnished or ~suppliea
Hon. Victor C. Marshall - Page 4 (V-69)
by the district; and although the districts may not
mortgage or otherwise encumber their property and
have only limited right of sale of such property,
they may contribute to the construction of any im-
provement by any similar district the construction
of which shall contribute to their benefit; and, to
a limited extent, the district is dependent on the
will of the landowners residing therein,as expressed
at elections.
As a general rule, the State and its pol-
itical subdivisfone are not liable in tort while per-
forming acts in the public interest, unless some stat-
ute specifically authorizes such liability. If this
rule applies to the contraotiq State agencies under
discussion, the contractual provision may serve no
useful purpose.
The law in Texas on this subject seems to
be that where districts similar to those involved here
are performing a governmental or public function, they
will not be liable in tort, but where the function is
proprietary and private, then liability follows.
(T.c.A.), 163 s. v/. (2) 855 it is difficult to C&P
ceive of a situation in whidh either the Reclamation
District or the Conservation District would be liable
for the torts of their agents and employees. In each
of the above cited cases, the District involved was
created by statute for the,purposes and under the auth-
ority expressed in Sec. 59, Article 16, of the Consti-
tution. In the Jones ease, the employee of the drain-
age district was in$.urea by being thrown from an auto-
mobile while being tranaportod to work by an agent of
the District. In the Peters case, the employee was in-
jured by the premature explosion of ‘a charge of dyna-
mite discharged by a fellow employee on a drainage work
being done by the District, In the Hodge case, the em-
ployee was injured in the course of his employment in
the construction of the dam across the Colorado River
at Austin.
From the wording of the contractual provi-
sion under consideration,’ it is believed that the type
, -
Hon. Victor C. Marshall - Page 5 (V-69)
of injuries anticipated by the contracting distriots
are similar to the injuriss described in the cases re-
ferred to.
In declaring drainage districts not liable
in tort, the iollowihg language was used in Jones vs.
Jefferson County Drainage District (supra):
"Drainage districts created under
the provisions of Chapter 7 of Title 128,
Art. 8097,~V.C.S.) enaoted under authority
of Art: 16, Sec. 5911, sf the State Consti-
tution, Vernonls Am. St., l.Ipepolitical
subdivisions or the state of the same na-
ture and stand upon exactly the same foot-
ing as counties, or preciqots, or any of
the other political subdivisions of the
state. Harris County Drainage District Wo.
12 v. City of Houston, Tex. Cola. App., 35
S. W. (2) 118; Wharton County Drainage Dis-
tri6t No. 1 T. Higbee, Tax. Cir. App., 149
8. W. 381; American Surety Co. v. Bidalgo
Coumty, Tex. Civ. App., 283 8.W. 267, writ
of error refused; Parker v. Harris County
Draiuge Distriat, Tax. Civ. App., 148 g.W.
351; Harris County v. Cerhart, 115 Tax. 449,
283 S.W. 139; Wussbaum T. EM11 County, 97
T6x. 86, 76 S.W. 430; Braun v. Trustees of
Viotoria~Independent School District, Tax.
Cir. App., 114 S. W. (2) 947; 15 Tex. Jur.
722.
"In the Cerhart Case, supra, our Su-
pm&e Court held (115 Tex. 449, 283 S.W.
14C): 'It is well establisheq that at ccm-
&on law counties as a rule are not liable
for injurler resultiag from the negligenoe
of their officers or agmata, and .ae raoonry
can be had in damages unlerr liability be
created by statatr. JZoigel T. Wieehita Caun-.
ty, g4 Tex. 392, 19 S.W. 512, 31 AM. St. Rep.
63; Wuasbaumv. Bell Ceanty, 97 Tox. Q6, 7g
S.W. 430.'
qvSince drainage distrirts are of the
same nature ‘and stand upon the *ue rectiy
a8 counties, and aiaoe ceumtie8 are net lia-
ble ror injuries resulting rrom the nogli-
game 0r their offioerr or lgont8, it logi-
. .
Hon. Vi,otor C. Marshall - Page 6 (V-69)
tally follows that drainage districts,
likewise, are not liable for injuries re-
sulting from the negligence of their of-
ficers or agents.”
In extending this rule to conse.rvation and
recl%nation districts and in reviewing the law relating
to this matter, it is stated in,Hodge v. Lower Colorado
River Authority (supra):
*Appelleewas created as a conser-
vation and reclamation district under and
by virtue of Chap, 7, Acts 4th Called Ses-
s$on of the 49rcl Legislature, Ptynbn’s Ann,
Civ. St. following arti,cle 8197f, and un-
der authority o$ Sec. 59(a), Art. 16 &the
$ozs$itutlon of Texas, Vernon’s Ann. St.
The building of the Austin dam was,
in keeping with the legislative act creat-
ing the Authority, and so far as appellee
was concerned ( not purely for thel purpose
of generating electric power for the, City
of Austin,; but was one of ,the authorized
methods ddopted by appellee to conserve
and utilize a natural resource of the State
for hydroelectric power for a public use,
The building of the, dam as a step in the
conservation of a natural resource is an
entirely diff,erent matter from a particular
sale of the po\lier suboeqi:ently to be gener-
ated by it after its conpletion,. In the
former., reF;ardless of the latter, the dis-
trict acted in a governmental capacity for
a public purpo,se, one in which ail the pub-
lic, and not merely the inhabitants of the
City of Austin, were interested.
* * * * such fiistricts, created #under
Sec. 59(a) of Art. 16 of the Constitution,
‘are political subdivisions of the state of
the same nature and stand upon exactly the
same footing as counties, or precincts, or
any of’ the other political subdivisions of
the state ’j and consequently are immune from,
liability for tort8 of their a.gents and em-
ployees. Since all of such districts+an8
several different kinds are so authorized,--
created under this section of the Constitu-
tion are all designed to effectuate the same
Hon. Victor C. Marshall - Page 7 (V-69)
objectives, that is, the conservation and
utilization of the natural resources of the
state in which all the public are interested,
they must all logically fall into the same
category on the question of immunity from lia-.
bility for torts."
And in construing the effect or section 59,
Article 16. of the Constitution, it is said. bv wav of
dictum, in*Hidalgo County Water.Control and'Im~rov&vent
District No. 1 vs. Gannaway (T.C.A.), 13 S . 'rl.
" 1 204 9
writ ref,:
"Was it intended in those declara-
tions (Art. 16, Sec. 59) by the framers of
the constitutional provision to lift such
corporations, therein authorized, from the
status universally occupied by purely local
public organizations, and give them the
preferred status of municipalities exer-
cising 'public right%!' and performing 'pub-
lic duties,' with all the exemptions ac-
corded such municipalities by the common
law? If this was not the purpose of those
declarations, then none other is conceiv-
able, and they have no effectual signifi-
cance. It seems to the writer that the
constitutional declarations must have been
made in view of the inhibition against ex-
emption from the common-law liability and
of the decisions of our Supreme Court giv-
ing effect to the common-law rule applica-
ble to municipalities exercising functions
other then those essentially public in
character, and were intended to protect
the distriots therein provided for against
the operation of thA& rule."
The trend in Texas as evidenced by the fore-
going opinions indicates that the Districts here in-
volved will be liable for few acts of negligence result-
ing in personal injury. Therefore, little necessity is
seen for the contractual provision under consideration.
If, however, a contractual provision of the nature sought
is still desired, no reason is known by this department
why such a provision may not be included.
We believe the law with reference to public
contracts is correctly stated in Donnelly on Public Con-
Hon. Victor C. Marshall - Page 8 ,(V-69)
tracts, Section 3, dealing with implied powers, as fol-
lows:
“Public bodies authorized to do a
particular act have with respect to such
act the power to make all contracts
which natural persons might make. They
have all the powers possessed by natural
persons, as respects their centraots ex-
cept where they are expressly, or by im-
plication, restricted.”
Although we have not been called upon to
express an opinion on the ability of the districts to
contract with respect to the oooperative matters GX-
pressed in the contract, being calle& on only with re-
spect to such contract as .relates to, paragraph: 5, nev-
ertheless, we interpret the acts creating these dis-
tricts as giving them the power to make such c,ontraots.
The power to cantract with reference to the matters
set out in paragraph 5 of said contract is incidental
to and may be implied from the parent contract, the im-
plication being that in order to avail itself of velua-
ble machinery and the operation thereof, for the fur-
therance of its public purposes, the Conservation Dis-
trict may properly, agree to the provision in question.
The matter is one of trade, customary in dealings be-
tween private individuals and corporations, and no re-
striction is known which would place the districts here
involved in a different position. The inclusion of the
provision in the contract will not create liability to
third parties where none exists under the law.
ft is the opinion of this department that
the contractual provision in question may serve no use-
ful purpose, but that no reason exists prohibiting the
parties so contracting if they so desire.
SDMMARY
A Soil Conservation District may con-
tract with a Water Reclamation and Conse~r-
vation District to hold harmless such water
Reclamation and Conservation Distriot from
liability resulting from the negligent use
or equipment) and the negligent acts of em-
ployees in operating such equipment, during
the time that such equipaent and employees
Hon. Victor C. Marshall - I'age 9 (V-69)
are on loan from the Water Reclamation and
Conservation District, but are uader the
aontrol and direction of the Soil Conserva-
tion Distriot; however, under existing law
with reference to such liability, little
need is seen for such a provision.
Yours very truly
+TlToRNEYGENERAL
OF T?zxAs
H. D. Pruett, Jr.
HDP:jr:sl:wb Assistant
APPROVED
OPINION COMMITTEE
EYBWB
CHAIRMAN
ATTORNEY
GENERALOF TEXAS