t -. - 

R- ‘78 

Honorable Victor C. Marshall 

Executive Direotor 

Texas State Soil 

2nd Floor, First 

Temple, Texas 

Conservation Bward 

State Bank Buihding 

Dear Sir: 

opinion Ho, V-69 

Re: May the San Jaainto So&t EonsBrvetion 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 equ Y pment 

and the negligent aOt8 OP smployees operati.ng such equipment , 

during the time that suoh equipment and employees are 00 1~60 

Prom the San Jacinto River OonservatLon awl ReolamaOiM @ij,@ 

trict but ape under the coat&l 

of the San 8acinto W.1 CaMOltPatiwn District? 

The ~wrtion pseeentad 133 your laQt#P ai January 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 #aan Jeointo River Coneervatlol al~d Rwlamafioa District, a8 follows: 

*Second Party agrees to hold harmless and indemalty Pfrat Party Prom any 

llabfllties tax damagea or negligence, 

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

material while same 18 under the direatfon of Second Party, and until. 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 two districts, 

which was attaohed to ymr ).&tteP and i8 zyburaeil herewith. For OOnvsnisac.9 the @a5 Jacinto S& Canserva- 

$10~1 kllatriot w&l ba Limtter refrrrd t9 as “Conservation RMrfOt* In the Ban Jga65to Ittver CQnss&ation 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 

ing the time t ii at 

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 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 Otberwise, in the carrying on of aresion abntrel. and preoention operations; to purchase, improve and dispose 0P 

real and personal property; to make available 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 name of the district; to make and 

execute contracts or other instruments necessary or convenient to the exercise of its powers. The power to 

levy taxes is specifically withheld. A district is required to obtain from the Seoretary of State a certificate of organization, and when this is accomplished, 

"the district shall constitute a governmental subdirision of the State and a.public body corporate and polltic.” 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 Reclamation 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, 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 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 execute 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 purposes, the reclamation and irrigation of its arid, semiarid, and other lands needing Irrigation, the reclamation and drainage of its overflewed lands, and other 

land needing drainage, the conservation and development 

of its forests, water and hydra-eleotric power, the navlgation of its inland and coastal waters, and the preeerration 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 contract 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 l mr 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 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. 

As a 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 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 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 an agent of 

the District. In the Peters case, the employee was injured by the premature explosion of ‘a charge of dynamite discharged by a fellow 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 dam across the Colorado River 

at Austin. 

From the 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 7 of 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 or the state of the same nature and stand upon exactly the same footing 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 Distri6t 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 Supm&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; Wuasbaum v. 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 liable ror injuries resulting rrom the nogligame 0r their 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 and reclamation 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. 

The building of the Austin dam was, 

in keeping with the legislative act creating 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 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. 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 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 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 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 them the 

preferred status of municipalities exercising 'public right%!' and performing 'public duties,' with all the exemptions accorded such municipalities by the common 

law? If this was not the purpose of those 

declarations, then none other is conceivable, and they have no effectual significance. It seems to the writer that the 

constitutional declarations must have been 

made in view of the inhibition against exemption from the common-law liability and 

of the decisions of our Supreme Court giving effect to the common-law rule applicable 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 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, 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 follows: 

“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 except where they are expressly, or by implication, 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 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 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 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 may properly, agree to the provision in question. 

The matter is one of trade, customary in dealings between private individuals and corporations, and no restriction 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 useful purpose, but that no reason exists prohibiting the 

parties so contracting if they so desire. 

SDMMARY 

A Soil Conservation District may contract with a Water Reclamation and Conse~rvation District to hold harmless such water 

Reclamation and Conservation Distriot from 

liability resulting from the negligent use 

or equipment) and the negligent acts of employees 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 Conservation Distriot; however, under existing law 

with reference to such liability, little 

need is seen for such a provision. 

Yours very truly 

+TlToRNEY GENERAL OF T?zxAs 

HDP:jr:sl:wb 

H. D. Pruett, Jr. 

Assistant 

APPROVED 

OPINION COMMITTEE 

EYBWB 

CHAIRMAN 

ATTORNEY GENERAL OF TEXAS