R-508 

OlWXCE OF 

THE ATTORNEY GENERAL 

Auwrm, TEXAS 

PRICE DANIEL 

*~TcmNEY GENERAL July 28, 1947 

Hon. E..V. Spence, Chairman 

Board of Water Engineers 

302 West 15th Street ._, 

Austin, Texas Opinion No. V-319 

Re: Sale of stored water 

by Lower Colorado Rlver Authority for irrigation and manufacturing 

use outside the Authority's statutory boundaries 

Dear Sir: 

The question and facts upon which our opinion 

Is requested are stated In your letter of May 23, 1947, 

as follows: 

"Your opinion is requested with 

respect to the appllcatlon of 3. T. 

Suggs, Box 3, Lake Jackson, Brazoria 

County, Texas, now pending before the 

Board, to appropriate and divert 

40,000 acre-feet per annum of the unappropriated waters of the State of 

Texas, the same to be diverted from 

the,,Colorado River and the San Bernard 

River for the purpose of utilizing 

35,000 acre-feet for Irrigation and 

5,000 acre-feet for manufacturing. The 

annual diversion from the sources of 

supply to be on the basis~ of 10,000 

acre-feet from the Colorado River of 

which 2,000 is .to be for manufacturing, 

and 30,000 acre-feet from the San Bernard 

River of whhich 3,000 should be for msnufacturlng. 

" 

. . . 

"The question arises - hasthe Lower 

Colorado River Authority the right to sell 

water to Mr. J. T. Suggs for irrigation and 
-. 

102 

Hon. E. V. Spence - page 2 : v&g 

manufacturing purposes, aa to use, 

distribute and sell the same outside 

the boundaries of the District, and 

in this case the lands being in the 

Brazos Valley." 

We have examined the application of J. T. 

Suggs which states that any permit granted by the 

Board to divert water from the Colorado River will 

be contingent upon the ability of the applicant to 

purchase stored water from the Lower Colorado River 

Authority. The only waters, therefore, subjectto 

this opinion, are those of the Colorado stored by 

Lcm. The question restated is whether or not LCRA 

may sell legally stored water to a purchaser who 

will deliver it for ~irrigatlon and manufacturing 

use beyond the boundaries of the District. In addltion, and in order to ,fully answer your question, 

it till be necessary to decide whether a purchaser 

who has bought stored water from LCRA may, by following the procedure outlined in Article 7590, V. C. S., 

remove the water so purchased beyond the watershed. 

The various conservation and:reclamation districts, Including LCRA, have been created by special 

acts under Article XVI, Sec. 59 of the Constitution, 

and have only those powers expressly granted or reasonably implied from the acts upon which their creation 

depends. The solution to your problem must be determined by ascertaining legislative Intent as expressed 

in these acts. 

LCRA.was created by Acts 1934, 43rd Legislature, 4th C. S Ch. 7, as amended. Its boundaries 

are coincident.kth the boundaries of Blanco, Burnet, 

Llano, Travis, Bastrop, Fayette, Colorado, Wharton, 

San Saba, and Matagorda Counties. The powers given 

LCRA are set out in Section 2 of the Act creating ft 

and in so far as these powers touch on the subject 

under lnvestlgatlon it appears that LCRA Is authorized 

to control, store, and preserve within the boundaries 

of the district the waters of the Colorado and its 

-i6utaries any useful purpose and use distribute 

a& sell the same wlth5.n the bounckes of ihe district; 

develop and generate water power and electric energy 

within the boundaries of the district and distribute 

and sell water power and electric energy within or 

without said boundaries; aid In foresti 

watershed area of the Colorado and aid in prevention 
Hon. E. V. Spence - Page 3 - V-319 

103 

of soil erosion and floods within said watershed area; 

acquire by purchase or otherwise any property, real, 

personal or mixed, within or without the-boukdarles of 

the district necessary or convenient to the exercise of 

the nowers conferred unon it. Rezardless of nermits - 

held; the district is not permitted to use fo; lrrlgation purposes any water unless expressly authorized by 

subsequent permit granted by the Board of Water Rngineers; provided, however. that nothing shall prevent 

the district from selling for Irrigation purposes wlthIn the boundaries of the district any water impound 

by it under authority of law. Its use of water for the 

purpose of generating hydro-electric power Is subordinated~and madi? inferior to the rights of any citizen of 

Texas. or bodies nolltic. to build dams and Impound 

flood-waters within the watershed of the Colorado and 

its tributaries for domestic purposes and for the purposes of irrigation and any permit held by It is subject to the limitations indicated. 

We find In the Act creatina LCRA an exnress directive to use, distribute and zell within she boundaries of the district the waters which are controlled, 

stored and preserved by It. It is also provided that 

regardless of the permits which it holds the district 

Is-required to obtain a subsequent permit from your 

Board In order to use any but impounded waters for lrrigation, It being expressly provided that nothing shall 

prevent the sale of water mounded under authority of 

law for irrigation within the boundaries of said dlstrlct. LCRA may distribute and sell water power and 

electric energy wlthln or without its boundaries, and 

Is to aid in foresting and In the prevention of soil 

erosion and floods within the watershed area. It may 

acquire within or without its boundaries property necessary to the exercise of its powers. The Act indicates 

to us a carefully considered attempt by the Legislature 

to localize certain functions and to generalize others. 

~Turning now to the other Conservation and Reclamation Acts, all of which are compiled under Special 

Acts beginning at page 536, Vol. 21, V. C. S., we briefly review the provisions of these Acts in so far as 

they touch on the subject under Investigation. 

Brazos River Conservation and Reclamation District. 

Its boundaries are coincident wlth the watershed of the 

Brazos. It is authorized to control and employ the 

flood, storm and unanpropriated flow waters of said 
~.p~4 Hon. E. V. Spence - Page 4 - V-319 

district in order to provide for the preservation of 

the equitable rights of the people of the watershed 

area; the conseTPation of water essential for domestic uses of the watershed; for the itigation of' 

lands in the watershed area; the equitable distribution of waters to the regional potential requirements 

for all uses, and to make available waters in the development of commercial and Industrial enterprises in 

all sect,Tons of the watershed. 

Central Colorado River Authority. It is composed 

of the.County of Coleman. It is authorized to use. 

distribute a,nd sell its waters within the boundaries 

of the district. Water power ana electric energy may 

be sold witNn or without such boundaries. It Is directed to aid in prevention of soil erosion and floods 

nithin the watershed area. It may acqpire property 

necessary to the exercise of its powers, whether such 

property be within or without such district. 

&uXlalupe-Blanc0 River Authority. Its boundaries are COinOident~wlth the boundaries of Hays; Comal, 

Quadalupe. Caldwell, Gonzales. Dewitt. Victoria. Kendall, R&igio and Calhoun Cou&es. It is authhrized-to 

use, distribute and sell Its waters within the bountiarles of the district; water power and electric energy 

to be distributed and sold within or without such boundaries. It is to aid in foresting and in the.prevention 

of soil erosion and floods within the watershed area. 

Property necessary to carry out its purposes may be acquired within or wIthout the district. 

Lower Neches Valley Authority. Its boundaries 

consist of Jefferson. Iiardin. Tiler and nortions of 

Liberty and Chambers Counties. -It is ac‘corded power 

of control and employment of the waters of the Neehes 

in order to preserve the equitable rights of the 

people of the watershed area: for irrigation of land 

in said district and land without said district but 

within said watershed; for the equitable distribution of waters to the regional potential requirements for all uses, and to make available waters in 

the development of commercial and lndustrial~enter- 

'prises in all sections of the, watershed of the district. 

Lower Conch0 River Water and Soil Conservation 

Authority Its boundaries consist of Conch0 County. 

ft Is au&orized to sell water power and electric ener- 
Hon, E. V. Spence - Page 5 - V-319 

gy within and without the district3 to provlde,for the. 

Irrigation of lands In the district and for the equitable distribution of waters of the Conch0 and Colorado 

Rivers to the regional potential requirements for all 

uses, and to make available waters in the development 

of commercial and industrial enterprises in all sections of the watershed area of the district. 

Nueces River Conservation and Reclamation District. 

Its boundaries describe by metes and bounds the watershed area. It has power of, control and employment of 

the waters of the Nueces for domestic uses of the people 

of the watershed; for irrigation of land In the watershed; for the equitable distribution of waters to the 

regional requirements for all uses, and In order to 

make available waters in the development of commercial 

and tidustrial enterprises within the watershed. 

Panhandle Water Conservation Authority Its boundaries consist of certain named counties alo& the Red, 

Canadian and Brazes Rivers. The District has the authority to distribute and sell water power and electric 

energy within or without its boundaries; to provide-for 

, the Irrigation of lands In the watershed areas; pro- .. 

vided, that such district may not use water for lrrigation unless It obtains a permit from the Board.of Water 

Engineers, It being expressly provided, however, that 

nothing is to prevent the district from selling for 

Irrigation within its boundaries any water impounded 

by it under authority of law, and to make available 

waters In the development of.commercial and Industrial 

enterprises in the watershed area of the district. 

Sablne-Neches Conservation District. Its boundaries originally consisted of certain named counties, 

but by amendment these boundaries were extended to 

Include the watershed areas of the Sabine and Neches 

Rivers. It has power of control and employment of the 

waters of these rivers for the preservation of the 

equitable rights of the people of the watershed; for . 

irrigation of all lands within said watershed; development of commercial and~~industrial enterprises therein, 

and to conserve such waters for the domestic uses of 

the people of the district, 

Sulphur River Conservation and Reclamation District. It boundaries consist of th 

me Sulpkr River, 

e watershed area 

It may control and employ the 
Hon. E. V. Spence - Page 6 -V-319 '. 

P f:36 

flood, storm and unappropriated flow waters to preserve the equitable rights of the people of the watershed; to conserve water for essential domestic uses 

within the watershed; for the itigation of lands 

within the watershed; for the equitable distribution 

of Its waters to the regional potential requirements 

for all uses, and to make available such water for 

commercial and industrial enterprises in the watershed. 

Upper Red River Flood Control and Irrigation, 

District. It Is composed of 3riscoe, Hall and Chlldress Counties. It has power to control, store and 

preserve within the boundaries of the district the' 

waters of Prairie Dog Fork and Red River for the reclamation and irrigation of the lands of the district 

and to use, distribute, and sell the same within such 

boundaries. 

Upper-Guadalupe River Authority. It is composed 

of the County of Kerr. It is authorized to use, distribute and sell Its waters within the boundaries of 

the district for any useful purpose, and to acquire 

such property as may be necessary to carry out its 

purposes wIthin or tithout the district. 

We find in these acts a more or less uniform 

insistence by the Legislature to confine within the 

district's boundaries the sale generally by it of 

stored waters and specifically sale by it of stored 

waters for manufacturing and irrigation use; permissionto sell and distribute electric energy and 

water power within or without such boundaries; a 

conservation policy regarding foresting, flood 

control and soil erosion covering the watershed 

area; the power to acquire property necessary to 

carry out the powers of the district within or without the boundaries of such district, and the delegation generally of a duty to preserve the waters 

for the watershed area In accordance with regional 

potential requirements. 

In the following Instances we have found exceptions 

to the general policy discussed above: 

Guadalupe River Authority. Its boundaries consist 

of certain named surveys in Coma1 County. Its right to 
Hon. E. V. Spence - Page’7 -V-p9 

control, store, sell and dlstribute,water Is acquired 

by approprlatlon M.the,usual manner by ,petit from 

your:,Board .and the ,exerclse~of all privileges obtained 

under such permits is subjectto the provisions of 

Chapter 1, Title 128, R. c. S., 1925, as amended, Since 

water la permitted to be moved beyond the watershed by 

Article 7590, R. C. S., 1925, which is a part of Chapter 1, Title 128, it would appear:~,~that the district 

may sell tom a purchaser who In turn might apply to your 

Board under said Article for a per&t to remove the 

mater so purchased beyond the watershed and beyond the 

district's boundaries. ,. 

&ilf Water Supply Dlstrlct.,, Its boundaries consist 5?7tXson, &arn Be San Patriclo aa Nueces 

Counties. It is. spe%ioa%y &thorizea authorized to sell water 

to towns, cities and other~politlcal subdivisions In the 

Stat6e,of Texas, to private corporations and to indlvlanals, duals, rithin mtnl~lor without titnout then district. a&strlct. 

San JaCinto Conservation and Be&nation District. 

It is-bounded b the watershed of the S J into 

cept for'the Co&y of Harris, As orip&$ e&EGd 

the Act creatj.ng this'district contains the usualpro) 

vlslons~ indicated above. However, by amendment, Acts 

1941, page 769, the district was ~authorlzed to enter into 

any and all necessary and proper eontracts ~wlth other 

agencies, districts and bodiespolitic and corporate and 

others for the storage, conservation, utilization, transPortation and sale of lmpounded,waters.and electric 

power to cities, towns, .industrial sites, persons, firms 

and corporations wlth%n or Mthout the boundaries of the 

district. 

Upper-Colorado River Buthorlty ThIsdIstrict 

Is comnosed of Coke and TomGreen C&nties.~ It is au-. 

thorized "to sell and distribute, water without the 

boundariesof the district to any municipality for domestic, municipal and irrigation purposes, and to any 

person, firm, or, corporation for municipal purposes or 

irrigation, together with the right to'~construct,fnmes, 

lrrlgat.tion ditches, plpeltnes and storage reservoirs 

without the district for such purposes. 

The fact that the Legislature has seen fit in 

bertaln cases to confine sal,es for manufacturdng and 

irrigation use,tithin flxed boundaries but has deviated 

from this policy in other cases, together with an overall policy of localiiing certain functions while 
-. A ,/.-,A 

1108 Hon. E. w. Spence - Page 8 -.w-319’ 

generalizing others, leads us to the conclusionthat 

only where sales beyond the district are expressly authorized were they intended to be permitted. It is our 

opinion that under its present act LCRA has no authority to distribute or sell its stored water~for use 

beyond MX boundaries. 

In digesting the various conservation and reclamation Acts; we covered and considered only certain of 

the expressly granted powers and functions accorded 

such districts. In most cases, these express powers 

are preceded by a broad grant of authority to exercise, 

all powers and functions conferred upon such districts 

by general law and by the conservation amendment to the 

Constltutlon and that the grant of express power is not 

Intended to limit the general powers so conferred. 

Sections 1 and 2 of the LCRA Act (supra) are the sec- 

‘tlons which confer upon it these general powers. In 

addition, It is usually provided that the Act shall 

be liberally construed. See Sec. 18, LCFtA Act (supra). 

We have donsidered these sections~w%th reference to 

the situation under investigation but have been unable 

to find any purpose, function or power conferred upon 

LCFU under the general law or by the conservation 

amendment to the Constitution,which would authorize 

It to sell stored waters beyond its boundaries in the 

face of an express directive that it use, distribute 

and sell such waters within such boundaries. 

If the district Is not authorized to sell or distribute waters beyond its boundaries, then it necessarily follows that the Legislature intended that these 

waters be used only within such=boundaries. To permit 

a purchaser from such a district to distribute and use 

the stored waters purchased by him beyond district 

boundaries would nullify whatever purpose the Legislature had In mind In placing restrictions on sales by 

the district of such waters. We have covered at 

length the various conservation and reclamation district acts because we believe that these,acts, with the 

exceptions Indicated, show an overall purpose by the 

Legislature to preserve for the benefit of the lnhabitants of these districts the waters stored by such 

districts and to permit a purchaser to remove such 

waters beyond district boundaries would circumvent 

this purpose. It is. our opinion that a purchaser ,of 

stored waters under the present LCRA Acts may not distribute and use such waters ,for Irrigation and manufacturing purposes beyond LCRA boundaries. 
I 

109 

Hon. R. V. Spence - Page 9 -V-319 

In our opinion, ArtlOle 7589, V. C. S., declarlng it to be~unlawful to remove water .beyond the ., 

watershed, Article 7590, V. C.&, providing a method 

by which water may be removed upon application to your 

Board, and Article 7591, V. C. S., making It a mlsdemeanor and providing penalties for removing waters> 

without Proper authority, have no appllcation.to the 

sltUatiOn presented. Msny of the districts discussed. 

above consist of named countiesso thatthe overall 

boundarymay or may not be coincident with the ~watershed area. Whether the district boundaries lie within 

or without the watershed,:or ,whether theses boundaries 

are coincident with the watershed, all of the special 

acts In question having been enacted subsequent to ~' 

Articles 7589, 7590 and 7591, have the effect of creboating to the extent indicated in each act an exception 

to the general law stated in said Articles. See 

25 R~. C. L., 

. p. 150, Sec. ifi' 

929, 59 C. 'J. P. 936, Sec. 546, 39 T.J. 

2, Harris Count 

3 

Drainage District No.12 

=~*A~~sl,nCB~~(~~eAP~orn. App:) i2~S; W. 12) 

35 s w (2) 118. Hunt 

;&& and Fortinberry v:State (Corn. ~pp.)--283 S. W 

. The,effect-of this exception Is two-fold; (lj 

making it lawful to use waters beyond the watershed 

where the boundaries of the district extend beyond such--- 

watershed, ,and (2) except- from the.operation of Artlcle 7590 the waters involved in the spe&lal,acts in 

question to the extent lndlcated.in each of such acts. 

We find no decision in Texas on this question. 

The only related cases we have found are not in point, 

since in each a statute easted permitting removal of 

waters beyond district boundaries. See San Jacinto 

River Conservation and Reclamation District v. Sellers 

Ct. 1945) 184 S. W. (2) 920; Cameron County 

rovement District No. 1 v. Danlels (T.C.A. 

S. W. 1066. 

Outside Texas the few cases found are not in 

harmony. The rule laid down in Jenison v. Redf2el.d 

(Cal. sup. ct. 1906) 87 P. 26, involving an irrigation district, confines water strictly ~to district 

boundaries, holding that the waters of such districts 

are held in trust for their Inhabitants and may not be 

used beyond district.bouudaries in the face of a statute restricting use within such boundaries. On the 

other hand, the following cases, while announcing the 

rule laid down in the Jenison case, place an exception 

upon this rule, holding that if the rights of the lnhabitants of the district are not injured and if there 

t- 
110 Hon. E. V. Spence - Page 10 - V-319 

5s a surplus of water, .the Clistrict may furnish water 

for use beyond Its boundaries. See,Yaden v,' Gem Irrl~ 

gation District (Idaho Sup. Ct. 1 2 

$7 

) 216 P. 

Koch v. Colvln (Mont. Sup. Ct.'19 0 

2 0; 

10 

7 

P. ,(2 7 334, and 

Maclay, v. Mlssoula Irrigation District 

1931) 3 P. (2) 286. 

Mont. Sup. Ct..- 

In our opinion, the principles announced In these cases with regard to Irrigation 'dlstricts do not necessarily apply to conservation and 

reclamation districts such as LCRA due to the broader 

purpose for which the conservation and reclamation 

district has been created ,and the more extensive area 

over which this ,purpoae' extends. See Brazes River 

Conservation and Reclamation District v. McGraw (Tex. 

SUP. ct. 1936) 91 S. w. (.2) 670. 

Under Its present Act (Ch, 7, Acts 

43rd Legis. 4.th C.S.1934, as amended), 

waters stored by the Lower Colorado 

River AuthorWy may not be distributed 

or sold by,it for irrigation or manufacturing use beyond the Authority's, 

boundaries. '.This restrictioh~alsorelates to purchasers from the Autho-rity; 

Yours very truly ~~ 

ATTORNRY WRERAL OT~>TRXAS 

L- 

. D. Pm&t, Jr. 

Assistant .' ,: 

RDPrbt 

APPROVED '..