Mr. A. C. Spencer,

ExecutiveDirector, 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 ConservationDistrict, created under provisions cf House Bill 444, Acts, 47th Legislature,1941, Chapter 308, page 491,. to accept conditionedeasements for flood prevention structures,In which a Soil ConservationDistrict assqes financial responsibility for damage to utility Ones and other Installations; and related questions.
We have receivedyo;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 flnacclalresponsibilityfor any- dazape to the cables, resulting from constrac5ioncr maZnten&nce of the structure, or occasionedby 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 provlslonsof House Bill No. 444, Acts, 47th Legislature, to accept conditionedeasementsfor flood prevention structuresIn which the Soil Conservation District assumes flnanc:alresponslblllty for damage to utility lines and other Installations? 2. If a Soil Conservation District should assume financialresponslblllty for damage tc utility lines and In the construction process damage occurs, could fznds appropriatedfor use of the Soil Conservation Districtby the Texas Legislaturebe used to pay such damsges?
3. Could funds earned from the use of State appropriatedfunds be used to pay such damages? 4. What personal flnanclai llablllty fcr damages to utility lines could be attached to IndividualSoli Conservation Dlstrlct Supervisors, If such a conditioned easemect is accepted?
A Soil Conservation District Is a governmental subdivisionof this State, and a public body corporateand politic,which exercisespublic 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 Dlstrlctshave the expressedgo&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 convenientfor the performanceof any of the operationsauthorizedIn this Act; "(Sec. 7-(7)) . . . ~tcmanage, 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 projectwithin Its boundaries;

. . .I'.

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

The "conditioned

easement"you mentionedIs, In reality, an easementwhich would give the District a right to flow and Impoundwater over the Company'sright of way; coupled with the District's covenant to Indemnifythe Company for all possibledamage 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 authorizedto secure easements, but a question presents Itself as tc whether the Districtmay 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 carryingout the purposes of such constltutlonai provisions,is the political subdivisionof the State, performing governmental functions, and standingupo 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 indemnifythe company for 'any damage to~the cables resulting from ccnst,ructlon~ or maintenanceof the structure,or occasioned by its (the Mstrlctls) employees,contractors,la?d cwners cr others" would contravene the well estabitshed ---lie ;iat such political subdivisionsmay 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 contractwas ultra vlres and the county had no authority to enter ia3 the alleged csntract of lndemni,*j.

. . . I,

. . . It 1s a contractwhereby the County of Uvalde agrees to Indemnify the Railrcad Companies against all loss they may sustainby reason of a dipping vat being placed In the shlaplngpens of the Railroad Companies,regardless of how such damage may arise and regardlessof whose negligence may have caused the damage, and regardlesscf 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 authorityunder the statutes to enter Into a contract with the RailroadCompaniesfor the privilegeof erecting a dippingvat wIthIn the stock pens owned by the Railroads,

but such authority would not justlfy a contract to Indemnify the Railroadsagainst all loss which might thereafterarise as a result of such vat being so located,regardlessof how such loss might arise or whose negligence might c2use such loss.

. . . "

. It Is argued that Uvaide Ccunty co'uld not. h&i securedpermIss?.on frcm the Raiircad Companies to constmrctsuch vat in their &IopIng pens If It had not entered l'nto 2 contraztc? lndemnlty with the RaIlroads. This may be true, but, If so, the county shouldhave 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 possiblefinancial' 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 financialrespcnslbllity for 'any damage to the cables resultingfrom 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 damagingCompanyprQ>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).

flnanclalresponsibility 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:.