P

P RouorableB. F. Hicks

FranklinCountyAttorney P. 0. Box 787 Mt. Vernon, Texas 75457 OpinionNo. JM-768

Re: Whether a water district may contractwith a commissionerscourt to place an ambulanceand emergency medical facilities at a lake owned and operatedby thewater district

DearMr. Hicks:

You ask two questionswhichwe set out following:

1. Can the Franklin County Water District, a conservation and reclamation district created by act of the Texas Legislature as authorizedunder ArticleXVI, Section 59, of theTexas Constitution and also governed by the general law concerning water control and improvementdistricts. lawfully make a donation of money from the general operating fund of the Franklin County Water District to the CormeissionersCourt of Franklin County, saidmoney to be used for the purchase of
an ambulance to be owned by Franklin County Bospital, said hospital being owned.by Franklin County,Texas?

2. Can the FranklinCountyWater District, the Commissioners Court of Franklin County, and the Franklin County Hospital enter into an **agreement** pursuant to the Interlocal Cooperation Act (Article 4413(32c), V.T.C.S.) pursuant to which Franklin County Water District will pay a sum of money to the Commissioners Court of Franklin County in exchange for which Franklin County Hospital would agree to place an ambulance and emergency medical technicians at Lake Cypress Springs,which is owned and operated by Franklin County Water District in Franklin County, during specifieddays of theyear?
The Franklin County Water District is a water control and



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improvement district created by the legislature pursuant to article XVI, section 59, of theTexas Constitution. Acts 1965, 59thLeg., ch. 719. at 1668. See also Acts 1971,,62dLeg., ch. 354, at 1330. The water district is a political subdivision of the state. Acts 1965, supra. The districtderives itspowers at large from the constitution and specifically from the statutes governing the particularduties it is to discharge. Franklin CountyWater DistrictV. Majors, 476 S.W.2d 371, 373 (Tex. Civ. App. - Texarkana 1973, writ ref'd n.r.e.); see

- generallyAttorneyGeneralOpinions JM-258 (1984);M-171 (1967).

The districtmay exercise either thoseoowerswhich are exoresslv delegated to it or -those that are clearly'implied from the express powers. Tri-City Fresh Water Supply District No. 2 of Harris County
v. Manor. 142 S.W.2d 945, 946 (Tex. 1940); Lower Nueces River Water Supply District V. Cartwright, 274 S.W.2d 199, 207 (Tex. Civ. App. - San Antonio 1954 writ ref'd n.r.e.1. Implied oowers are those that
are "indispensableto the accomplishmentof thepurpose" forwhich the political subdivision was created; powers "merely convenient" or "useful"cannot be implied and may not be assumed by the subdivision. Tri-City Freshwater SupplyDistrict No. 2 of Harris County, supra, at 947. (Emphasis'added).

The act creating the district authorizes it t@ exercise the followingpowers,privileges,and functions,among others:

(1) To control, store,preserve and distribute its waters and flood waters, the waters of its riversand streams, for all useful purposesand to accomplish these ends by all practicable **means** including the construction, maintenance and operationof all appropriate improvements.plants, works and facilities, the acquisition of water rights and all other properties, lands, tenements, easements and all other rights necessary to the purposeof the organizationof theDistrict.
(2) To process and store such waters and distribute same for municipal, domestic, irrigationand industrialpurposes, subject to the requirements of Chapter 1, Title 128. Revised Civil Statutesof Texas, 1925,as amended.
(3) To dispose of property or rights therein when the same are no longer needed for the purposes for which the District is created or to lease same for purposes which will not interfere with theuse of theproperty of theDistrict.
(4) To cooperate with and contract with the 7.

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State of Texas, the United States of America, or with.any of their departments or agencies now existing, or which may hereafter be created, to carry out any of the powers or to further any of the purposes of the District and, for such purposes, to receive grants, loansor advancements therefrom.

. . . . (6) To exercise all functions to permit the accomplishment of its purposes including the acquisition within or without said District of land, easements, and rights-of-way and any other characterof property incident to, or necessary in carryingout thepurposesandwork of theDistrict by way of gift, device, purchase, leasehold or condemnation.

. . . (7) To do any and all other acts or things necessary or proper to carry into effect the purpose for which the District is created as organized.

Acts 1965,59thLeg., ch. 719, 14 at 1671-72.
Chapter 51 of the Water Code governs the operation of the day-to-day affairs of the district. See Water Code 4951.121-51.194. A district may purchase machinery Gded in the operation and maintenance of its improvements. Id. at 551.126. - Finally, the district may undertake activities in support of public recreationcn itsproperties. Specifically,itmay



### (1) acquire land forpublic recreation;
(2) construct facilities for public use on landacquired forpublic recreation;
(3) provide for the operation, maintenance. and supervisionof thepublic recreationareas;
(4) execute agreements with other local, state,or federalagencies forplanning.construction. maintenance, and operation of public recreation facilities and necessary access roads; and
(5) maintain adequate sanitary,standards on

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the land and water areas that are part of or adjacent to public recreation areas. (Emphasis added).

Parks andWild. Code 513.304.

.You first ask whether the .districtmay provide money from its general fund to the Franklin County Commissioners Court for the purchase of an ambulance for the Franklin County Hospital, which is owned by Franklin County. You do not say how the ambulancewill be used, or whether it will be for the exclusive use of the district, either to protect the health and safety of the district's employees, or the well-being of members of the public using the district's property for recreation. We assume that your question contemplates that the districtwill provide the entire cost of the ambulance.

The district may provide for the health care needs of its employees. Attorney General Opinion O-4140 (1941). Likewise, it may provide for the operation, maintenance, and supervision of public recreation areas. sparks and Wild. Code §13.304(3). Given these powers, the purchase and operation of an ambulance by the district would be a proper exerciseof its authority. An ambulance canperhaps be considered as a tool for providing first aid. Unlike a fixed health care facility, such as a hospital or clinic, it cannot be used for long-term care, or, indeed, for anything other than dealing with critical or life-threatening~emergencies,such as those thatmight be causedby constructionor recreation accidents on the property of the district.

We conclude that the transferof district funds to the county for thepurchase of an ambulance to be owned by the county'shospital and placed on the district property is permissible, so long as the ambulancepurchasedwith the transferredmoney isused exclusivelyfor
a purpose lawful both to the district and the county. Article III, section 52. of the Texas Constitution prohibits the use of public money other than for public purposes. This section of the constitutionbars a political subdivision from gratuitouslygranting its funds to another political subdivision. Harris County Flood Control District v. Mann, 140 S.W.2d 1098 (Tex. 1940); San Antonio Independent School District v. Board of Trustees of San Antonio Electric and Gas System, 204 S.W.2d 22 (Tex. Civ. App. - El Paso 1947, writ ref'd n.r.e.);AttorneyGeneralOpinions JM-220 (1984);JM-65 (1983);H-1170 (1978). This provision would not prohibit the arrangement you have described to us, so long as it is carriedout pursuant to an agreement that clearly indicates what public purpose is being served by the arrangement and that the district and the county each will derive a specific public benefit from the arrangement. The agreement must
assure that the ambulance is under the joint control of both parties, and that it will only be used for.a purpose lawful to the district.

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See Attorney General Opinions JM-220 (1984); JM-65, JM-44 (1983); m60 (1979) (county may make its funds available to city for operationof the zoo) andH-413 (1974) (courtauthorizedto contribute to constructionof swinnning pool operatedby schooldistrict).

If~the ambulance is not devoted to the exclusive service of health care of water district employees,health care of personsusing the district's facilities, or both, then we do not believe that the district is authorized to provide funds to the county for its purchase. In otherwords, if the ambulance is not at the complete beck and call of the district for either the protection of its employees, or thehealth and safety ofmembers of thepublicusing the recreation
areas maintained by the district, then the district would have no authority to purchase the ambulance, and it would likewise have no authority to provide money to the county to purchase one to be used for thatpurpose. Because the districthas no authority to operatean ambulance service to protect the public at large, itmay notmake its funds available for that purpose, even if the grant is to another public body. Thus, if the district provides all of the funds.necessary for the purchase of the ambulance, the vehiclemust be available for just the needs of the district. A contribution of some part of the cost of the ambulancewould permit a proportionate dedication of themachine to the exclusiveneeds of the district.

We caution, however, that any examination of the lawfulness of the activity proposed by your first question must also include a thorough consideration of what the county may lawfully do. An agreement between the district and county must be supported by adequate consideration to support the county's expenditure of public funds to operate and maintain the ambulance. An arrangement which requires the county to devote a part oftits ambulance service exclusively to the needs of one client raises questions about whether the county can ever receive a quid pro quo adequate-to satisfy the rule against transfer of public funds without receiving corresponding public benefits. While we are in no position to structure a bargain for the parties,we suggest that the district and county consider the absolute legal necessity of an agreement that provides adequate assurances of a suitably equivalent exchange of public funds for publicbenefitsby both parties.

You also ask about an apparentalternativemethod formeeting the health and safetyneeds of the district. You askwhether the

Franklin County Water District, the Commissioners Court of Franklin County, and the Franklin County Hospital [can]enter into an agreementpursuant to the InterlocalCooperationAct (Article4413(32c). V.T.C.S.) pursuant to which Franklin County Water District would pay a sum of money to the

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CommissionersCourt of FranklinCounty in exchange for which Franklin County Bospitalwould **agree** to place an ambulance and emergency medical technicians at Lake Cypress Springs, which is owned and operated by Franklin County Water District in FranklinCounty.during specifieddays of theyear?

Our answer to this question is in the affirmative, and stands apart from our answer to the first question. As we noted above, the Parks and Wildlife Code permits the Franklin County Water District to operate and maintain recreation areas. The district may "execute agreementswith other local, state, or federal agencies for planning, construction,maintenance and operation of public recreation areas." Parks andWild. Code §13.04(4). Thus, itwould be appropriate for the district to enter into a contract with Franklin County for the provision or services necessary to provide for healthy and safe recreation areas, so long as the county can lawfully be a party to such a contract.
The InterlocalCooperationAct, article 4413(32c),V.T.C.S., also permits thekind of agreement contemplatedinyour question. See art. 4413(32c), 54(b). So long as all of the parties to an InGlocal cooperation agreement are authorized to provide the services contracted for, such an agreementwould be lawful.

We note that a county has the power both to provide for a hospital, see article 4478, V.T.C.S.. and to appropriate and spend money fromthe general revenues of the county for health and **sanita** tion. This power specifically includes the power to operate an ambulance service in the county. Attorney General Opinion C-772 (1966). Any expenditure of county funds must not be contrary to article III, section 52. of the constitution. See Attorney General Opinion J&191 (1984). In other words, each party to the contract must receive adequateconsiderationfor its expenditure.

SUMMARY
The Franklin County Water District, a conservation and reclamation district created pursuant to article WI, section 59, of the Texas Constitution,may provide funds to FranklinCounty for thepurchase of an ambulance, if the ambulance will be used exclusively in furtherance of a lawful purpose of **the** district. Such lawful purposes are: protecting **the** health and safety of the .district employees and providing for safe public recreationon the'district'sproperty. The districtmay enter intoan agreementwith Franklin

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County and the county hospital to place an ambulanceand emergencymedical technicianson the district's property at certain times in order to protect the health of district employees and the general public using~thedistrict's property for recreation purposes. Parks and Wild. Code art. 13.03(4):V.T.C.S. art. 4413(32c). Very/trulyy0urj.j

JIM MATTOX AttorneyGeneral of Texas

MARY KELLER ExecutiveAssistantAttorneyGeneral

JUDGE ZOLLIE STBAKLRY SpecialAssistantAttorneyGeneral

RICK GILPIN Chairman,OpinionCommittee
Preparedby Don Bustion AssistantAttorneyGeneral

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