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E O~KNEY GENERAL OFTEXAS

fb;mra&e R. Ii. Cory State Affairs Committee Austin, Texas

Dear Mr. Cory: Opinion NO.W-621 Re: Constltutlonallty of H.B. 142, of the 56th Leglslature, authorizing the State Parks Board to acquire public sites in proximity to the shores of public lakes, bays andgulfs for recreatlon purposes. Youhave asked our opinion onthe constitutionality of H.B. 142, specifically in regard to whether the words "on or in proximity to" are too vague and indefinite to authorize a condemnation. Theprovision of the bill in question Is:

"Section 1. TheState Parks Board Is hereby authorized to acquire, by gift, purchase or condemnation, andto improve andmaintain public sites on or In proximity to the shores of public lakes, bays and gulfs 'for parking vehicles, for camping, picnicking, boat launching, and other recreational purposes. Theacquisition of such properties and the imprdvement andmaintenance of sameby the State Parks Board shall be covered specifically by funds allocated under the current appropriations of the Texas Legislature. Theproceedings for condemnation of property under this Act shall be Instituted and conducted in accordance with Title 52of the Revised Civil Statutes." There is no constitutional requirement that the Legislature limit the location of land that maybe taken under a condemnation statute. 1.6Tex.Jur., Eminent Domain, 8 130 states:. .

Honorable R. H. Cozy, page 2 (~-621)

“It seemsthat the plenary power of the legislature ,over the subject of eminent domain authorizes It to designate, In each delegation of the right to exercise the power, the particular premises which the grantee maytake. Thegeneral purpose being public, the legislative body maydefine the extent of the appropriation necessary to the public use. But this it has not, for the most part, attempted to do, because it would be obviously Impracticable to fix in advance the amount or location of land which a grantee somedaymight condemnfor one or more of its purposes.
. , .n However, since H.B. 142restricts condemnation thereunder to land !‘on or in proximity to ” public lakes, bays, and gulfs it would be a fact question whether a given tract was so situated. In McGheeIrrigating Ditch Co. v. Hudson, 22 S.W. 398 (Sup.Ct. 1893) it was contended th t condemnation Dower granted In Acts of ’1889, 21st Leglslatu:e, Regular Session, 100, chapter 88, wasvoid for uncertainty. Thefirst sec

### page tlon of the act stated:

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. that the unappropriated waters of every river k’natural stream within the arid portions of the State of Texas, in which, by reason of the lnsufficient rainfall, irrigation is necessary for agricultural purposes, maybe diverted from its natural channel. , . .‘I The Court approved the Court of Civil Appeals holding by stating:

11 the act wasnot Inoperative because of Its fail&i to designate the territory which should be deemedthe ‘arid portion of the State’

. . . This would have probably been impracticable

. . . This wasa question of fact to be determined as any other fact,.” The Court in Brazos River Conservation &Reclamation Dlst. v. Harmon, 178S.W.2d 281 (Civ.App. 1944, ref. w.o.m.), stated:

“The right to exercise the power of eminent domain must be conferred by statute, either In express words or by necessary implication.”- .

Honorable R. H. Cory, page 3 (WW-621) 'Proximity" has a sufficiently definite meaning to convey the legislative intent. Webster's NewInternational Dictionary, 2ndEdition, Unabridged, defines "proximity' as follows: "Quality or state of being near or very near in time, place, causation, Influence, relationship, etc.; Immediate or close propinqulty." In Lacky v. Gulf C&SRy. Co., 225 s.w.2d 630 civ. App. 1949), It washeld that the stat&e (Sub. (d), Sec. 86, Art. 6701d, V.A.C.S.) requiring avehicle driver, approaching a railroad crossing to stop within 50feet and not less than 15feet from nearest rail andproceed nofarther until he can do 80safely, whenapproaching train Is "plainly visible" and Is in "hazardous proximity" to the crossing, Is not unconstitutional because of indefiniteness.

Weare of the opinion that the phrase "on or In proximity" as used in H.B. 142is specific enough to define the restriction intended therein, andthat, therefore, H.B. 142is not unconstitutional for indeflnlteness. SUMMARY H.B. 142 of the 56th Legislature authorizing the State Parks Board to acquire public sites in proximity to the shores of public lakes, bay&and gulfs for recreational purposes Is not unconstltutional. Yours very truly, WILLWILSON Attorney General of Texas

JAO:dhs Assistant APPROVED: OPINIONCOMMITTEE: Ceo. P. Blackburn, Chairman Houghton Brownlee, Jr. Joseph Q. Rollins, Jr. JamesR. Irlon, III W.RayScruggs REVIEWED

FORTHEATTORNEY

GENERAL BY: W.V. Geppert BY