t -. - R-‘78

Honorable Victor C. Marshall Executive Direotor Texas State Soil 2nd Floor, First Temple, Texas Conservation Bward

State BankBuihding

Dear Sir: opinion Ho, V-69

Re: Maythe SanJaainto So&tEonsBrvetion District ooutract with the San Jaointo River ConseWation andReclamation District to hold aaid ReolamM#on Diet&at $?88 Promliabillt,y, resUlti the negligent u5e of equ pment Y and the negligent aOt8 OPsmployees operati.ng such equipment

, during the time that suoh equipment and employees are 00 1~60 Promthe SanJacinto River OonservatLon awl ReolamaOiM @ij,@ trict but ape under the 

### coat&l of the San8acinto W.1 CaMOltPatiwn District?

The ~wrtion pseeentad 133your laQt#P ai January 25, 1947, ieWhether the Board oPBk\pervieOra**@P**the SanJacinto 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~dRwlamafioa District, a8 follows:

*Second Party agrees to hold harmless and indemalty Pfrat Party Promany llabfllties tax damageaor negligence,


### or for eny *of 0P the operator 04employees wed in operating such equlpmetlt 

### or material while same 18under the direatfon of Second Party, anduntil. it 1s Xaturned 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 twodistricts, which was attaohed to 

### ymr ).&tteP and i8 zyburaeil herewith. For OOnvsnisac.9 the @a5Jacinto S& Canserva- $10~1kllatriot w&l baLimtter refrrrd t9 as “Conservation RMrfOt* In the BanJga65to Ittver CQnss&ation andReclamation wj,%lIrehere%nafter raw ferred to as ~Reo~amntioE]tlistriOtn,.

The equfpmedt andmaterials referWi to in the qubted section are not identiiied by the Ocatract

, but it is ass-d that suck equipment andmatOria1 con+ sists et bulMOeers, gra&xs end Qther maohines Ofa type usua$ly oned la rosa 

### wwka Your file fndioates that &heConser’ratYp&Hst9d&t ia reae5tly using a maintaiaer Pucalahrkdby the *iaXN&ion BietTt&t for terracing and 

### drabage roMci+

The questiom maybe stated in mere general terms, as PollOwws:

Mayone State agen,cy oontract with anether State agency to assume tortious &iabi&*ty $%sulting Promthe negligent use of ’ equipment and the negligent acts of the emloyees ing the time tiiat in operating suob equipment dursuch equipment an&bmployees are under the control and direotiO5 of the borrowing agenay,

The solution of the problem presented requires anunderstanding of the nature andoP the powers and duties of the State agencies involved,

TheSan,Jaointw BQ$l Conservation Bi&rlot

was oreated under Art%Cle~l65a-4, V.A.C.S., Acts 1939, g. 7, a8 amendedActs 1941, pB491, and !&~&VII as Ohs State Soil Conservation La@‘

. ASoil Connenatien &strict formed under this Aot vlsh@&l oonstltuta a governmental division ePthis &ate dna a‘14ublicbody oorporats andpolktic 8xeroi8iag pub&j+0powers”; with power to calcry out preventive and Oontrol measure8 through eagi&@sring opera&:bum, metheds 02’aulbioatf on, growing Ofvegetdtioa, changrs in use of Land; to enter into ,agreements with any agepoy, gWernmenta1 or Otberwise, in the carrying onof aresion abntrel. andpreoention operations; to purchase, improve and dispose 0P real andpersonal property; to makeavailable to landowners 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 nameof the district; to makeand execute contracts or other instruments necessary or convenient to the exercise of its powers. Thepower to levy taxes is specifically withheld. Adistrict is required to obtain from the Seoretary of State a certificate of organization, andwhenthis is accomplished, "the district shall constitute a governmental subdirision of the State anda.public body corporate **and** polltic.” Upondissolution, 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 SanJacinto River Conservation ana **Recla** mation District was created byActs of 1937. 43th Is B copied In V.A.C.S., Vol, 21: begin&&’ at page 617, and-the various amendmentsthereto, beginning 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 

### ofTexas, under whloh Constitutional amendmentthe districts "ahall **be** governmental agencies and bodies politic and corporate with such parers of gorernment and the authority to execute such rights, privileges andfunctions concerning the subject matter of this amendmentas maybe 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 andall other useful purposes, the reclamation andirrigation of its arid, semiarid, and other lands needing Irrigation, the reclamation anddrainage of its overflewed lands, and other land needing drainage, the conservation anddevelopment of its forests, water andhydra-eleotric power, the navlgation of its inland and coastal waters, and the preeerration andconservation of all such natural resources of the State.” Districts are granted broad powers in the Act and in addition are granted the samepowers conferred uponWater Control andInprovement Districts by Chapter :~ **25,,** Acts **1925** (Article 7880-l to 14706, inclusive, V.A.C.S.), and under these grants such districts maycontract generally in furtherance of their purposes; aoquiro by purohase, condemnation or other meanslands and rights of way; au8and **be** sued in the‘nameof the district; lery taxes; issue bonds; sell water, water oonneotions, power, electric l

mrg y, ana other services furnished or ~supplieaHon. Victor C.Marshall - Page 4 (V-69)

by the district; and although the districts maynot mortgage or otherwise encumber their property and have only limited right of sale of such property, they maycontribute to the construction of any improvement 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.

Asa general rule, the State and its political subdivisfone are not liable in tort while performing acts in the public interest, unless some statute specifically authorizes such liability. If this rule applies to the contraotiq State agencies under discussion, the contractual provision mayserve 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 andprivate, then liability follows.

(T.c.A.), 163 s. v/. (2) 855 it 

### isdifficult 

### toC&P ceive of a situation in whidh either the Reclamation District or the Conservation District would be liable for the torts of their agents andemployees. In each of the above cited cases, the District involved was created by statute for the,purposes andunder the authority expressed in Sec. 59, Article 16, of the Constitution. In the Jones ease, the employee of the drainage district was in$.urea by being thrown from an automobile while being tranaportod to work by anagent of the District. In the Peters case, the employee was injured by the premature explosion of ‘a charge of dynamite discharged by afellow employee on a drainage work being done by the District, In the Hodge case, the employee was injured in the course of his employment in the construction of the damacross the Colorado River at Austin.

Fromthe wording of the contractual provision 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 referred 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 7of Title 128, Art. 8097,~V.C.S.) enaoted under authority of Art: 16, Sec. **5911,**sf the State Constitution, Vernonls Am. St., l.Ipe political subdivisions 

### orthe state of the samenature and stand upon exactly the samefooting as counties, or preciqots, or any of the other political subdivisions of the state. Harris County Drainage District Wo. 12v. City of Houston, Tex. Cola.App., 35 S. W. (2) 118; Wharton County Drainage Distri6t No. 1T. 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., 148g.W. 351; Harris Countyv. Cerhart, 115Tax. 449, 283 S. W. 139; WussbaumT. EM11County, 97 T6x. 86, 76S.W. 430; Braunv. Trustees of Viotoria~Independent School District, Tax. Cir. App., 114S. W. (2) 947; 15Tex. Jur. 722.

"In the Cerhart Case, supra, our Supm&e Court held (115 Tex. 449, 283 S.W. 14C): 'It is well establisheq that at ccm- 

### &onlaw counties as a rule are not liable for injurler resultiag from the negligenoe of their officers or agmata, and.aeraoonry
**can** be had in damagesunlerr liability be created by statatr. JZoigel T. Wieehita Caun-. ty, g4 Tex. 392, 19 **S.W.** 512, 31 AM.St. Rep. 63; Wuasbaum

v. Bell Ceanty, 97Tox. Q6, 7g S.W. 430.' qvSincedrainage distrirts are of the
samenature 

### ‘andstand 

### uponthe*ue rectiy a8 counties, and aiaoe ceumtie8 are net liable 

### rorinjuries resulting 

### rromthenogligame 

### 0rtheir offioerr or 

### l gont8,it logi-. .

Hon. Vi,otor C. Marshall - Page 6 (V-69)

tally follows that drainage districts, likewise, are not liable for injuries resulting from the negligence of their officers 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 conservation andreclamation district under and by virtue of Chap, 7, Acts 4th Called Sess$on of the 49rcl Legislature, Ptynbn’s Ann, Civ. St. following arti,cle 8197f, and under authority o$ Sec. 59(a), Art. 16&the $ozs$itutlon of Texas, Vernon’s Ann. St. Thebuilding of the Austin damwas, in keeping with the legislative act creating the Authority, and so far as appellee
was concerned ( not purely for thelpurpose of generating electric power for the, City of Austin,; but was one of,the authorized methods ddopted by appellee to conserve andutilize a natural resource of the State for hydroelectric power for apublic use, The building of the,damas a step in the conservation of a natural resource is an entirely diff,erent matter from a particular sale of the po\liersuboeqi:ently to be generated by it after its conpletion,. In the former., reF;ardless of the latter, the district acted in a governmental capacity for

a public purpo,se, one in which ail the public, and not merely the inhabitants of the City of Austin, were interested.

* * * * such fiistricts, created #under Sec. 59(a) of Art. 16of the Constitution,

‘are political subdivisions of the state of the samenature and stand upon exactly the
samefooting as counties, or precincts, or any of ’ the other political subdivisions of the state ’j and consequently are immunefrom, liability for tort8 of their a.gents and employees. Since all of such districts+an8 several different kinds are so authorized,-- created under this section of the Constitution are all designed to effectuate the sameHon. 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 onthe question of immunity from lia-. bility for torts."

Andin construing the effect or section 59, Article 16. of the Constitution, it is said. bvwav of dictum, in*Hidalgo CountyWater.Control and'Im~rov&vent District No. 1vs. Gannaway(T.C.A.), 13S "

. 'rl. 1 204 9 writ ref,:

"Wasit intended in those declarations (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 themthe preferred status of municipalities exercising 'public right%!' and performing 'public duties,' with all the exemptions accorded such municipalities by the common law? If this wasnot the purpose of those declarations, then none other is conceivable, and they have noeffectual significance. It seems to the writer that the constitutional declarations must have been madein view of the inhibition against exemption from the common-law liability and of the decisions of our SupremeCourt giving effect to the common-lawrule applicable to municipalities exercising functions other then those essentially public in character, andwere intended to protect the distriots therein provided for against the operation of thA&rule."

The trend in Texas as evidenced by the foregoing opinions indicates that the Districts here involved will be liable for few acts of negligence resulting 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, noreason is knownby this department whysuch a provision maynot be included.

Webelieve the lawwith reference to public contracts is correctly stated in Donnelly onPublic Con-Hon. Victor C. Marshall - Page 8 ,(V-69)

tracts, Section 3, dealing with implied powers, as follows:

“Public bodies authorized to do a particular act have with respect to such act the power to makeall contracts which natural persons might make. They have all the powers possessed by natural persons, as respects their centraots except where they are expressly, or by implication, restricted.” Although wehave not been called upon to express an opinion on the ability of the districts to contract with respect to the oooperative matters GXpressed in the contract, being calle& on only with respect to such contract as .relates to,paragraph: 5, nevertheless, we interpret the acts creating these districts as giving themthe power to makesuch c,ontraots. Thepower to cantract with reference to the matters set out in paragraph 5 of said contract is incidental to andmaybe implied from the parent contract, the implication being that in order to avail itself of veluable machinery and the operation thereof, for the furtherance of its public purposes, the Conservation District mayproperly, agree to the provision in question. Thematter is one of trade, customary in dealings between private individuals and corporations, and norestriction is knownwhich would place the districts here involved in a different position. Theinclusion 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 mayserve nouseful purpose, but that noreason exists prohibiting the parties so contracting if they so desire.

SDMMARY

ASoil Conservation District maycontract with aWater Reclamation and Conse~rvation District to hold harmless such water Reclamation and Conservation Distriot from liability resulting from the negligent use


### orequipment) and the negligent acts of employees in operating such equipment, during the time that such equipaent and employeesHon. 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 Conservation Distriot; however, under existing law with reference to such liability, little need is seen for such a provision.

Yours very truly

+TlToRNEY

GENERAL

OFT?zxAs

HDP:jr:sl:wb H. D. Pruett, Jr. Assistant

APPROVED OPINIONCOMMITTEE EYBWB CHAIRMAN ATTORNEY GENERAL

OFTEXAS