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 

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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. John W. Millican 

Acting Executive Director 

Texas State Soil and Water 

Conservation Board 

P. 0. Box 658 

Temple, Texas 76503 

Opinion No. w-593 

Re: Whether a soil and water 

conservation district has 

authority under chapter 201 of 

the Agriculture Code to serve 

as a central distribution point 

for landowners to purchase 

fish to stock fish ponds 

Dear Mr. Millican: 

You have requested our opinion as to whether a soil and water 

conservation district is authorized to serve as a central distribution 

point for landowners to purchase fish and, in addition, whether a 

district may charge a fee therefor. 

Soil and water conservation districts are created by chapter 

of the Texas Agriculture Code. With regard to such districts, 

legislature has said, in section 201.001: 

(c) In order to conserve soil resources and 

control and prevent soil erosion, it is necessary 

that land-use practices contributing to soil waste 

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; forestation and reforestation; 

rotation of crops, soil stablization with trees, 

grasses, legumes, and other thick-growing, soilholding crops, retardation of runoff by increasing 

absorption of rainfall; and retirement from 

cultivation of steep, highly erosive areas and 

areas now badly gullied or otherwise eroded. 

201 

the 

p. 2204 
Mr. John W. Millican - Page 2 (Mw-593) 

(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 general welfare 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 

the work of various river and other authorities in 

this state and to other state officers, agencies, 

and districts engaged in closely related projects, 

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 soil and water conservation districts to consolidate pondowners' 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 conservation districts may add 

a handling fee to cover their expenses associated 

with the program. 

Basically, the district acts to "collect orders and serve as a central 

distribution point for landowners to purchase fish from fish producers 

licensed by the State of Texas for stocking their individual farm 

ponds." 

Section 201.102 of the Agriculture Code provides: 

A conservation district may lXlrl?y out 

preventive and control tlteasllres within its 

boundaries, including engineering operations, 

methods of cultivation, growing of vegetation, 

p. 2205 
Mr. John W. Millican - Page 3 (Mw-593) 

changes in the use of land, and measures 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 agency with 

the cooperation of the agency administering and 

having jurisdiction of the land. If the land is 

owned by another person, the conservation district 

m=Y carry out the measures on obtaining the 

consent of the owner or occupier or the necessary 

rights or interests in 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 stocking program 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 constitutes a "change in the 

use of land" authorized by that provision. 

As to the imposition of a handling fee by 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 conservation district may not impose a handling fee for serving 

as a central distribution point for the purchase 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 

impose a handling fee therefor. 

MARK WHITE 

Attorney General of Texas 

JOHN W. FAINTER, JR. 

First Assistant Attorney General 

p. 2206 
Mr. John W. Millican - Page 4 (?.lW-593) 

RICHARD E. GRAY III 

Executive Assistant Attorney General 

Prepared by Rick Gilpin 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Susan L. Garrison, Chairman 

Jon Bible 

Rick Gilpin 

Steve Martin 

Jim Moellinger 

Bruce Youngblood 

p. 2207