# The Attorney General of Texas

December 31, 1982 MARK WHITE Attorney General

Supreme Court Building P. 0. BOX 12546 Austin. TX. 76711- 2546 512,4752501 T&x 9101674-1367 Telecmier 5121475-0266

1607 Main St.. Suite 1400 Dallas. TX. 75201.4709 2141742-6944

4624 Alberta Ave., Suite 160 El Paso. TX. 799052793 915/533-3464

1220 Dallas Ave., Suite 202 Hous,~, TX. 77002.6966 7131650-0666

606 Broadway, Suite 312 Lubbock, TX. 79401.3479 606,747.5236

4309 N. Tenth, Suite S McAlten, TX. 76501-1665 5121662.4547

200 Main Plaza, Suite 400 San Antonio, TX. 76205.2797 512/225-4191

An Equal Opportunity/ Affirmative Action Employer Mr. JohnW. Millican Acting ExecutiveDirector Texas State Soil andWater ConservationBoard P. 0. Box 658 Temple,Texas 76503 OpinionNo. w-593

Re: Whether a soil andwater conservation district has authority under chapter 201 of the Agriculture Code to serve as a centraldistributionpoint for landowners to purchase fish to stock fishponds

DearMr. Millican:

You have requested our opinion as to whether a soil and water conservationdistrict is authorized to serveas a centraldistribution point for landowners to purchase fish and, in addition, whether a districtmay chargea fee therefor.
Soil and water conservationdistricts are createdby chapter of the Texas Agriculture Code. With regard to such districts, legislaturehas said, in section 201.001:

(c) In order to conserve soil resources and control and prevent soil erosion, it is necessary that land-usepractices contributingto soilwaste and soil erosion may be discouraged and discontinued, and appropriate soil-conserving land-use practices be adopted and carried out. Among the procedures necessary for widespread adoption are engineering operations such as the construction of terraces, terrace outlets, check dams, dikes, ponds, ditches, and the like; the utilization of strip-cropping, lister furrowing, contour cultivating, and contour furrowing; land irrigation; seeding and planting of waste, sloping, abandoned, or eroded lands to water-conserving and erosion-preventing plants, trees,and grasses; forestationand reforestation; rotation of crops, soil stablizationwith trees, grasses, legumes, and other thick-growing, soilholding crops,retardationof runoffby increasing absorption of rainfall; and retirement from cultivation of steep, highly erosive areas and areas now badly gullied or otherwiseeroded. 201 the

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(d) It is the policy of the legislature to provide for the conservation of soil and soil resources of this state and for the control and prevention of soil erosion, and thereby to preserve natural resources, control floods, prevent impairment of dams and reservoirs,assist in maintaining the navigability of rivers and harbors, preserve wildlife, protect the tax base, protect public lands, and protect and promote the health, safety, and generalwelfare of the people of this state, and thus to carry out the mandate expressed in Article XVI, section 59a, of the Texas Constitution. It is further declared as a matter of legislative intent and determination of policy that the agencies created, powers conferred, and activities contemplated in this chapter for the conservation of soil and water resources and for the reduction of public damage resulting from failure to conserve those natural resources are supplementary and complementary to thework of various river and other authorities in this state and to other state officers, agencies, and districtsengaged in closely relatedprojects, and shall not duplicate or conflict with that work.

You indicate that a number of districts have recently begun programs to encourage landowners to properly manage and stock farm ponds. You state:

The basic approach is for soilandwater conservationdistricts to consolidatepondowners' requests for fish and arrange for a licensed fish producer to deliver needed fish to the pondowners at a central location. In no case are the fish produced or held by the districts. In some cases the soil and water conservationdistrictsmay add a handling fee to cover their expenses associated with theprogram. Basically, the districtacts to "collectordersand serveas a central distributionpoint for landowners topurchase fish from fishproducers licensed by the State of Texas for stocking their individual farm ponds."
Section 201.102 of theAgricultureCode provides:

A conservation district may lXlrl?yout preventive and control tlteasllres within its boundaries, including engineering operations, methods of cultivation, growing of vegetation,

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changes in theuse of land,andmeasures listed in Section 201.001(c)of this code. The conservation district may carry out the measures on any land that is owned by the state or a state agencywith the cooperation of the agency administering and having jurisdiction of the land. If the land is ownedby anotherperson, the conservationdistrict m=Y carry out the measures on obtaining the consent of the owner or occupier or the necessary rights or interestsin the land.

An administrative or political subdivision of course has only those powers expressly granted to it by statute or necessarily implied therefrom. Stauffer v. City of San Antonio, 344 S.W.2d 158 (Tex. 1961); Attorney General Opinions H-897 (1976); M-1131 (1972). Nevertheless, we believe that, if a district's board of directors determines that the fish stockingprogram is a necessary "preventive and control measure" under section 201.102, it is authorized to implement the program as you have described it. Constructing a farm pond and stocking it with fish certainly constitutesa "change in the use of land"authorizedby thatprovision.

As to the impositionof a handling feeby a district, it is well established that, unless a fee is provided by law, none may lawfully be charged. Attorney General Opinions H-796 (1976): H-669 (1975): n-443 (i974); V-1426. (1952). See Nueces County v."Currington. 162 S.W.2d 687 (Tex. 1942);McCallarCity of Rockdale, 246 S.W. 654, 655 (Tex. 1922). We conclude that under the facts presented a soil and water conservationdistrictmay not impose a handling fee for serving as a centraldistributionpoint for thepurchase of fish to stock farm ponds. cf. Agric. Code §201.105.
SUMMARY
If the board of directors of a soil and water conservation district determines that a fish stocking program is a necessary "preventive and control measure" under section 201.102 of the Agriculture Code, it may implement such a program as described. A district is not authorized to imposea handling fee therefor.

MARK WHITE Attorney General of Texas
JOHNW. FAINTER,JR. FirstAssistantAttorneyGeneral

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RICHARD E. GRAY III ExecutiveAssistantAttorneyGeneral Preparedby Rick Gilpin AssistantAttorney General
APPROVED: OPINION COMMITTEE
SusanL. Garrison,Chairman Jon Bible Rick Gilpin SteveMartin JimMoellinger BruceYoungblood

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