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 do with 

creation of park and 

recreation facilities. 

You have asked whether there is constitutional authority for subsection (b)(7) of article 54. 201, Texas Water Code, conferring upon a 

municipal utility district authority to provide parks and recreational 

facilities for the inhabitants of the district. 

Section 54.201(b)(7), Texas Water Code provides: 

A district [referring to municipal 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 of its creation, 

including all works, improvements, facilities, plants, 

equipment, and appliances~incident, helpful or necessary to: 

(7) provide parks and recreational facilities for the 

inhabitants in the district. 

The authority for the creation of municipal utility districts is derived 

from article 16, section 59 of the Texas Constitution, an amendment adopted 

in 1917. That section calls for the organization of conservation and reclamation districts as determined to be essential to the accomplishment of the 

purposes of the amendment, such districts to be clothed with powers of 

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

government and with the authority to exercise such rights, privileges 

and functions as might be conferred by law. The purposes of the amendment, stated in subsection (a) are: 

The conservation and development of all of 

the natural resources of this State, including the 

control, storing, preservation and distribution of 

its storm and flood waters, the waters of its 

rivers and streams, for irrigation, power and all 

other useful purposes, the reclamation and irrigation 

of its 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 of its forests, water 

and hydro-electric power, the navigation of its 

inland and coastal waters, and the preservation and 

conservation of all such natural resources of the 

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 of parks and 

recreational facilities by a municipal utility district is within the constitutionally stated purposes of conservation districts. 

Provisions of the Constitution are to be given a liberal construction to 

achieve the apparent purposes of those who have adopted the provision. 

Brown County Water Improvement District No. 1 v. Austin Mill & Grain 

co., 138 S. W. 2d 523 (Tex. Sup. 1940). The view that the “conservation and 

development of all of the natural resources of this state . . . for all other 

useful purposes” includes recreational uses is certainly not an unreasonable 

interpretation. S&e Attorney General Opinion C-436 (1965) which concluded: 

While a right to develop natural resources for 

recreational purposes is not specifically mentioned in section 59a of Article XVI of the Texas 

Constitution, such right would undoubtedly be 

included in the language. 

p. 2219 
Senator 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 and prevention equipment. 

The Court noted that section 59(a) 

. . . contains no language which would support a 

holding that the people in enacting the amendment 

contemplated that a’water control .and improvement district created for the purpose of conserving 

and developing the natural resources of the district 

would have the power to provide fire-fighting equipment and appliances for a town within said district. 

244 S. W. 2d at 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 

a water 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 by use but 

must be returned to the hyrdological cycle. The 

Conservation Amendment to our State Constitution 

would certainly permit the purification of water 

before it returns to the groundwater table and 

the river system. The protection of the purity of 

the waters of this State is a public right and duty 

under the Conservation Amendment . . . . 

273 S. W. 2d at 586. 

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

Where, as here, it is the stated purpose of the constitutional 

amendment to provide among other things for the conservation and 

development of natural resources including the development of forests 

and storing of the waters of the State’s rivers and streams for all 

useful purposes, we do not believe that we can say, as a matter of law, 

that the use of these resources such as waters and forests, once developed 

and conserved, for recreational purposes was not within the contemplation 

of the people who adopted the amendment. 

It is therefore our opinion that section 54.201(b) (7) of the Water 

Code is constitutional. 

SUMMARY 

The development of parks and recreational facilities 

by municipal utility districts created under section 59 

of article 16 of the Texas Constitution in the district’s 

program of developing and conserving the natural 

resources of the State is a constitutionally permissible 

activity. 

Very truly yours, 

v Attorney General of Texas 

APPROVED: 

, First Assistant 

C. ROBERT HEATH, Chairman 

Opinion Committee 

p. 2221