Mr. A. C. Spencer, 

Executive Director, 

Texas State Soil Conservation Board, 

1012 First National Bank BulldIng, 

Temple, Texas 

Opinion No. WW-423. 

Re: 

Dear Mr. Spencer: 

Is It legai for a Soil 

Conservation District, 

created under provisions 

cf House Bill 444, Acts, 

47th Legislature, 1941, 

Chapter 308, page 491,. to 

accept conditioned easements for flood prevention 

structures, In which a 

Soil Conservation District 

assqes financial responsibility for damage to utility 

Ones and other Installations; 

and related questions. 

We have received yo;lr r?q~est, dr5ed Rarch 31, in 

which yea ask cur cn;(nlos concerning a Soil Conservation 

Dlstr5cf, created under rrovisiocs of souse Bill 444, Acts, 

47th Leglslaflre, 1941, Cfia>ter 399, page 491. You state 

the Distr:z% is no furnish, wi';hcz;. cost tc the federal 

gcvernmert, al; easements 235 rLghts of way necessary for 

a proposed flood Drevent'ci! struc%re. The Ainerican Tele- 

&one and Telegraph Ccmsany has cffsred tne District an 

easement to Impound water ever t!!eir right of way contalning the Holdenville-Dallas "A" azd "Brc bur:ed comnunlcatlon 

=ables, conditioned, however, ;;p~n S-he Distr:cs assuming 

flnacclal responsibility for any- dazape to the cables, resulting from constrac5ion cr maZnten&nce of the structure, 

or occasioned by Its employees, contractors, land-owners 

or others. 

You have reTJested o'Jr opinion on four questions, 

substantiallg as follows: 
or. A. C. Spencer, Page 2 @W-423). 

1. Is It legal for a Soli Conservation 

District, created under provlslons of House Bill 

No. 444, Acts, 47th Legislature, to accept 

conditioned easements for flood prevention 

structures In which the Soil Conservation 

District assumes flnanc:al responslblllty for 

damage to utility lines and other Installations? 

2. If a Soil Conservation District should 

assume financial responslblllty for damage tc 

utility lines and In the construction process 

damage occurs, could fznds appropriated for use 

of the Soil Conservation District by the Texas 

Legislature be used to pay such damsges? 

3. Could funds earned from the use of State 

appropriated funds be used to pay such damages? 

4. What personal flnanclai llablllty fcr 

damages to utility lines could be attached to 

Individual Soli Conservation Dlstrlct Supervisors, 

If such a conditioned easemect is accepted? 

A Soil Conservation District Is a governmental 

subdivision of this State, and a public body corporate and 

politic, which exercises public powers in acccrd2rce with, 

and for the purposes set forth is the State Scli Ccnservatlon Law. House Xii 444, Acts, 47th Leglsiakre, Sections 

1, 3 and 7.~ Such Dlstrlcts have the expressed go&e?: 

"(Sec. 7-(3)) Tc obtain oDt1or.a upon ard 

to acquire, by purchase, exchange, lease, gift, 

grant, bequest, devise or otherwise, an-y pr;l;- 

erty, real or personal, or rights or interests 

therein; to maintain, iidmlnlster, and lqrove 

any propeAu- n+qes acquired, . . . 

"{Sec. ?-(51) To construct., lm;-rcve, and 

maintain such structures as may be necessary or 

convenient for the performance of any of the 

operations authorized In this Act; 

"(Sec. 7-(7)) . . . ~tc manage, as agent of 

the United States or any of its agencies, or cf 

this State or any of Its agencies, any soil conservation, erosion control, or erosion prevention 

project within Its boundaries; . . .I' 
. 

or. A. C. Spencer, Page 3 @W-423). 

The "conditioned easement" you mentioned Is, In 

reality, an easement which would give the District a right 

to flow and Impound water over the Company's right of way; 

coupled with the District's covenant to Indemnify the Company for all possible damage to the Company's property. 

The statute (Sectlon,,3) empowers the District to acquire, 

by means specified, . . . any property, real or personal, 

or rights or Interests therein; . . .I'. Clearly, the Dlstrlct 1s authorized to secure easements, but a question 

presents Itself as tc whether the District may make covenants of the nature In question. 

A soil conservation district, like other districts 

created under Section 592 of Article )tEt of the Constitution 

of Texas, and s,tatutes enacted t'nereunder carrying out the 

purposes of such constltutlonai provisions, is the political 

subdivision of the State, performing governmental functions, 

and standing upo 

political subdlv 

County Water Improvement District No. 1, 153 Tex. 599, 272 

‘S.W. 2d 498, and authorities therein cited. 

The proposed covenant, whereby the Soil Conservation 

District wouid obligate Itself C,L r indemnify the company for 

'any damage to~the cables resulting from ccnst,ructlon~ or 

maintenance of the structure, or occasioned by its (the Mstrlctls) employees, contractors, la?d cwners cr others" would 

contravene the well estabitshed ---lie ;iat such political subdivisions may not become an irdem?i5or. 

3 this effect, see Gal-Test:??. & S.A.Ry. Co. v. 

Zraide County, 167 S.W. 2d 305, [wr-lr. rsfzsei, want of merit), 

In which the following statements are made: 

"We conclude there was T;S error in Yze 

Cour:'s action In dismissing the cause, because 

the claimed contract was ultra vlres and the county 

had no authority to enter ia3 the alleged csntract 

of lndemni,*j. . . . 

I, . . . It 1s a contract whereby the County 

of Uvalde agrees to Indemnify the Railrcad Companies 

against all loss they may sustain by reason of a 

dipping vat being placed In the shlaplng pens of the 

Railroad Companies, regardless of how such damage 

may arise and regardless of whose negligence may have 

caused the damage, and regardless cf how'great the 

loss may have been ormay be In the future. 
Mr. A. C. Spencer, Page 4 (WW-423). 

"The County of Uvalde unquestionably had 

authority under the statutes to enter Into a contract 

with the Railroad Companies for the privilege of 

erecting a dipping vat wIthIn the stock pens owned 

by the Railroads, but such authority would not justlfy a contract to Indemnify the Railroads against all 

loss which might thereafter arise as a result of such 

vat being so located, regardless of how such loss 

might arise or whose negligence might c2use such loss. 

. . . 

" . It Is argued that Uvaide Ccunty 

co'uld not. h&i secured permIss?.on frcm the Raiircad 

Companies to constmrct such vat in their &IopIng 

pens If It had not entered l'nto 2 contrazt c? lndemnlty with the RaIlroads. This may be true, but, If 

so, the county should have simply located the vat at 

some other place. It could not use ttiIs fact as an 

excuse'for pledging the credit of the county to cover 

an unlimited llablllty which might arise In the future 

and thereby subject the ccunQ to possible financial' 

ruin." 

In answer to your first q':eet:on, It is our cplnlon, 

and you are so adVised, that a Soii Csnse-rvation Dlst;",ct may 

not assume financial respcnslbllity for 'any damage to the 

cables resulting from construct:o~ of the etnuctme” as proposed. 

This :e PC+ t.2 say Y&t;, under 5.5p54:p +A -~i:rstagces, .ai- .d .._* 

such a District could not Incur l<abilI';y to ti-;e Zcrpany for 

taking or damaging Company prQ>erty :ir,der the pxvFei$rs cl' 

Section 17 cf Article I of .the CcnetitefIcn of Texas. ?he 

deter3Ic2tlve qxstim ttier5 w.cuid be C~O~Lr~ll~d b-y a particillar set of facts which may or msy no,'; etist at home time In 

the f?ukre , upon which tk?is Departme-', -Lag net r;Td pass. 

In view of cur answer to yccr quesc,ic-r! No.I, we 

deem it -mnec.essary or, answer q~s%~cs Ros. 2, 3 and a. 

SL!Y 

A Soil Conservation DIstrlct, created 

under House Bill 444, Acts, &7th Leglslature, 1941, Is a pciiticai s%bdivl&Icn 

of the State, standing on the same footing as counties; It Is au';horized to 

secure easements, but may not ass‘tie 
!Q. A. C. Spencer, Page 5 W-423). 

flnanclal responsibility for all 

damage to property which may result 

from its activity, for such would 

be a prohibited contract of 

Indemnity. 

Yours ve* truly, 

WILL WILSON 

Attoxey General of;Texas 

By JQvdkw* 

?.:m I. McFarling 

Assis",ant 

TIM:pf 

APPROVED: 

OPINION COMMITTEE 

Geo. P. Biackburn, Cbalrman 

Riley Etagene Fletcher 

Harris Toler 

REVIEWEDFORTREAT?ORNEY GEKERAL 

By: W. V. Gqper:.