Senator Jim Wallace

Chairman, Intergovernmental Relations Committee Texas State Senate State Capitol Building Austin, Texas Dear Senator Wallace: Opinion No. H-, 491 Re: Constitutionality of

section 54.201(b)(7), Texas Water Code, having to dowith creation ofpark and recreation facilities. You have asked whether there is constitutional authority for subsection (b)(7) ofarticle 54. 201, Texas Water Code, conferring upon a municipal utility district authority to provide parks and recreational facilities for the inhabitants ofthe district. Section 54.201(b)(7), Texas Water Code provides: A district [referring tomunicipal utility districts] is authorized to purchase, construct, acquire, own, operate., maintain, repair, improve, or extend inside or outside its boundaries any and all works, improvements, facilities, plants, equipment, and appliances necessary to accomplish the purposes ofits creation, including all works, improvements, facilities, plants, equipment, and appliances~incident, helpful or necessary to:

(7) provide parks and recreational facilities for the inhabitants inthe district. The authority for the creation ofmunicipal utility districts is derived from article 16, section 59 of the Texas Constitution, an amendment adopted in 1917. That section calls for the organization ofconservation and reclamation districts as determined tobe essential to the accomplishment ofthe purposes of the amendment, such districts tobe clothed with powers of

p. 2218Senator Jim Wallace, page 2 (H-491)

government and with the authority to exercise such rights, privileges andfunctions as might be conferred by law. The purposes ofthe amendment, stated in subsection (a) are:

The conservation and development ofall of the natural resources ofthis State, including the control, storing, preservation and distribution of its storm and flood waters, the waters ofits rivers and streams, for irrigation, power and all other useful purposes, the reclamation andirrigation ofits arid, semi-arid and other lands needing irrigation, the reclamation and drainage of its overflowed lands, and other lands needing drainage, the conservation and development ofits forests, water andhydro-electric power, the navigation ofits inland and coastal waters, and the preservation and conservation ofall such natural resources ofthe State are each and all hereby declared public rights and duties: and the Legislature shall pass all such laws as may be appropriate thereto. Thus, the issue presented is whether the development ofparks and recreational facilities by amunicipal utility district is within the constitutionally stated purposes ofconservation districts. Provisions oftheConstitution are to be given aliberal construction to achieve the apparent purposes ofthose who have adopted the provision. Brown County Water Improvement District No. 1v. Austin Mill &Grain co., 138S.W. 2d 523 (Tex. Sup. 1940). The view that the “conservation and development ofall ofthe natural resources ofthis state . . . for all other useful purposes” includes recreational uses is certainly notanunreasonable interpretation. S&eAttorney General Opinion C-436 (1965) which concluded:

While a right to develop natural resources for recreational purposes is not specifically mentioned in section 59a ofArticle XVI ofthe Texas Constitution, such right would undoubtedly be included inthe language.

p. 2219Senator Jim Wallace, page 3 (H-491)

However, in Deason v. Orange County Water Control and Improvement District No. One, 244 S.W. 2d 981 (Tex. Sup. 1952). the Supreme Court held that article 16, section 59(a) did not authorize the district to purchase and construct fire control andprevention equipment. The Court noted that section 59(a)

. . . contains nolanguage which would support a holding that the people in enacting the amendment contemplated that a’water control .and improvement district created for the purpose ofconserving and developing the natural resources of the district would have the power toprovide fire-fighting equipment and appliances for atown within said district. 244 S.W. 2dat 984. See also Attorney General Opinion H-28 (1973). But article 7880-3a, V. T. C.S., the same statute whose constitutionality was before the court in Deason was subsequently before the Supreme Court in Parker v. San Jacinto County Water Control and Improvement District No. 1, 273 S.W. 2d 586 (Tex.Sup. 1954) insofar as the statute delegated to awater control and improvement district, organized under section 59 of article 16, the power to install a sanitary and storm sewer disposal system. Rejecting the attack the Supreme Court said:

Plaintiffs’ attack upon the statute fails because the power to erect and operate a sewerage disposal plant is clearly within Sec. 59a, Art. 16, Texas Constitution. The water brought into the area by the district is not destroyed byuse but must be returned to the hyrdological cycle. The Conservation Amendment to our State Constitution would certainly permit the purification ofwater before it returns to the groundwater table and the river system. The protection ofthe purity of the waters of this State is apublic right and duty under the Conservation Amendment

. . . . 273 S.W. 2dat 586.

p. 2220Senator Jim Wallace, page 4 (H-491)

Where, as here, it is the stated purpose ofthe constitutional amendment to provide among other things for the conservation and development ofnatural resources including the development offorests and storing ofthe waters ofthe State’s rivers and streams for all useful purposes, we donot believe that we can say, as amatter oflaw, thatthe use ofthese resources such as waters and forests, once developed and conserved, for recreational purposes was not within the contemplation ofthe people who adopted the amendment.

Itis therefore our opinion that section 54.201(b) (7) ofthe Water Code is constitutional. SUMMARY The development ofparks and recreational facilities by municipal utility districts created under section 59 ofarticle 16ofthe Texas Constitution in the district’s program ofdeveloping and conserving the natural resources ofthe State is a constitutionally permissible activity. Very truly yours,



# v Attorney General of Texas APPROVED:

, First Assistant

C. ROBERT HEATH, Chairman Opinion Committee

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