l+‘I.LL WILSON 

A.,qWRNEY CW!lNERAl. 

August 7, 1961 

Honorable Andrew Campbell 

County Attorney 

yami1ton county 

gamilton, Texas 

Opinion NO. ~~-11.06 

Re: Whether the County Commissioners Court Is authorized 

to act as a sponsoring agent 

of a watershed protection 

and flood protection project 

on private land wholly in 

said county to be established 

by the United States Department of Agriculture under 

pear Mr~Campbell: Public Law 566. 

Your request for an opinion concerns a proposed 

cooperative project provided for by Public Law 566 which 

would provide a series of dams, levees, terraces, and structures along Pecan Creek in Hamilton County on privately owned 

land on which public easement has been obtained. The purpose 

of the project would be for flood prevention, and water conservation. 

Public Law 566 (Title 16, Section 1001-5, U.S.C.A.) 

is popularly known as The Watershed Protection and Flood Prevention Act. 

EV. 

This Congressional Act was signed into law in 

The declared purpose of the Act is to authorize and 

direct the Federal Covernment through the Department of Agriculture to'cooperate with the several states and their polltical subdlvislons Inpreventing flood water, erosion, and 

sediment' damage In the watersheds of the rivers and streams 

of the United States, thereby preserving and protecting the 

&Ion's land and water resources. 

Under Section 1003-Q of Public Law 566, the Secretary of Agriculture Is authorized to cooperate,and enter Into 

agreements with and to furnish financial and other assistance 

to counties in regard to flood control and related problems. 

Cn,thls point the Act speclficall~~ provides that all the cost 

of installation and construction (including engineering costs) 

of improvements applicable to flood prevention will be borne 

by the Federal Government and paid for by the Secretary out of 

funds appropriated for watershed and flood protection. 
Honorable Andrew Campbell, Page 2 (~~-1106) 

Section 1304 cf the same A&,1. ::ets out some of the 

specific con5ltlor:s the lx.11 ~~1*~;3111~;1! I~\118 must comfily with 

in order to receive :-?derul asslstdnce for Installation of 

improvements. Cne such requirement is that the local unit 

acquire without co-'t; to the Federal Government any easement 

of right-of-way in land as will be needed for the Installation of 19provementa. Another condition in Section 1004-3 

Is that the local unit "make arrangements satisfactory to the 

Secretary for defraying costs of operating and maintaining 

such works of improvement, in accordance with regulations 

presented by the Secretary of Agriculture.' This condition 

would place on Hamilton County, the propose'd local proJect . 

sponsor, the responsibility of operating and maintaining at 

count 

~ments 

x expense the watershed and flood prevention "imprdveafter the construct.lon of same by the Federal Covernment 18 completed. 

of Article XVI of the Texas Constltutlon and Vernon's Civil Statutes set out expressly the leglslatlve attitude of the State of Texas in 

rd te flood control and watershed protection. 

;;g) of Article XVI states In part: 

Section 

"The conservation and development of all of t,he natural resources 

of this State, including the control, 

storing, preservation and distrlbution of its storm and flood waters, 

the reclamation and drainage of 

its overflowed lands, are each 

and all hereby declared public rights 

and duties; . . *' 

Compatible with the legislative concern for flood 

protection and control as expressed above Is Section 2 of 

Article TO@a, Vernon's Clvll Statutes. This provision 

authorizes all counties to levy a tax for flood control and 

farm-to-market and iateral roads purposes. This authorized 

levy is In the form of an ad valorem tax that the counties 

are permitted to levy, assess upon all property within their 

respective boundaries, "except the first Three Thousand 

Dollars ($3,000) value of residential homesteads, not to 

exceed thirty cents (30#) on each One Hundred Dollars ($100) 

valuation, In addition to ali other ad valorem taxes authorized by the Constitution of the State, provided the revenue 

therefrom shall be used as provided in this Act for the Construction and maintenance of Farm-to4arket and Lateral Roads 
. . I 

5119 

Honorable Andrew Campbell, Page 3 (~~-1106) 

or for Flood Control and for these two (2) purposes only." 

(mphasls ours) 

Section 3 of Article 7048a requires that the taxes / 

collected under the Act are to be credited by the Conunlsslon- 

,ers Court to the two separate funds discussed. The Farm-toMarket and Lateral Roads Fund to be used solely for authorized roads within the county, and the Flood Control Fund to be 

used solely for flood control purposes within the county. 

l'hls Section requires c;he credits to tne respective funds to 

be made proportionately in accordance with the tax allocation 

adopted at the election called for the purpose under Sections 

7 and 8 of Article 7048a. See Attorney General's Opinion No. 

V-1222 pertaining to the sufficiency of wording for ballots 

to be used at an election on levying farm-to-market or flood 

control taxes. 

Section 5 of Article 7048a places the funds In the' 

Flood Control Fund within the jurisdiction and control of the 

County Commissioners Court only to be used for flood control 

purposes. This Section provides further that all or a part 

of~such fund can be used In connection with the plans and programs of the Federal Conservation Service and several other 

listed types of water control and Improvement districts. 

If under the before mentioned provisions of Article' 

704&t, Vernon's Civil Statutes, passed pursuant to Article 

VIII of the Texas Constitution, Hamilton County assessed and 

collected the authorized tax and a portion of that tax was 

allocated to the Flood Control Fund as the result of the called 

election, and the amount of funds sc, allocated was sufficient 

to maintain and operate the completed structures, constructed 

at Federal expense for watershed protection and flood control 

purposes In the county, the county coul~d authorize the spending 

of any amount available in the Flood Control Fund for maintenance purposes and thus meet a primary obligation of a local 

project sponsor under Public Law 566, if under the law of the 

State of Texas the county is authorized to enter Into a contract or agreement with the United States Department of AgriGre such as contemplated by Public Law 566. Attorney 

General's Opinion No. WW-595 held that Navarro County could 

spend tax money to maintain dams constructed In Navarro County 

by a joint conservation dlstrlct If such money came from the 

Flood Control Fund established under Article 7048a, Vernon's 

Civil Statutes. 

-, 
Honorable Andrew Campbell, Page 4 (WW-1106) 

The Commissioners Court of any county in the State 

may enter Into contracts for the accomplishment of plans and 

programs for Flood Control and Soil Conservation with the 

Ped&al Conservation Service, etc., 

?OWb V 

under authority of Article 

. ernon's Civil -Li3ZGXes. 

No. k-596 held that while ? 

Attorney General's Opinion 

county might contract under Article 

7048b with the Federal Sol1 Conservation Service, It Is necessary that the county comply with Article 7048a before funds 

wlli be available fbr the maintenance of boll conservation 

projects. This Article also provides that the responsibility 

for carrying out such plans and the expendlture of county 

funds (under Article 7048a, supra) and the funds of the polltical subdivision concerned may be, by agreement, divided 

hetween the parties or delegated to either the county or to 

one of said subdivisions. The contracts may be for a speclfled term of years or until certain plans or programs have 

been accomplished. 

Also Article 1109k of Vernon's Civil Statutes pro1 vides that all counties are authorized to enter Into contracts 

with soil conservation districts for the joint acquisition of 

right-of-ways or joint construction or maintenance of improvements restricted to flood control. Such contracts may contain 

any terms as the governing bodies of the respective political 

subdivisions determine to be necessary under all facts and clrcumstances. Here again all counties are authorized to spend 

tax monies In the Flood Control Fund levied under Article 

7048a of Vernon's Civil Statutes. This Article in Its orlglnai form, Acts 56th Legislature, Regular Session, 1959, Chapter 313, Page 686, popularly known as Senate Bill 313 dlscloses In Section 6 the desire of the Legislature to provide an 

adequate provision In the law that would authorize counties to 

enter into agreements with other governmental units for the 

purposes of establishing, operating and maintaining flood protection and soil conservation projects. 

Finally, Section 1 of Article 1581e, Vernon's Civil 

Statutes, authorizes all counties the right of eminent domain 

to condemn and acquire real property and easements over and 

throrigh all public and private lands for the making of lmprovcments for flood control purposes. Also It Is provided that 

If the Commissioners Court deems the acquisition of the land 

necessary condemnation of the fee title may be had for the 

purposes of flood control under Article 3264, Vernon's Civil 

Statutes, and related provisions dealing with eminent domain 

and condemnation powers of counties. In addition to the powers 

specified above Section 3 of Article 1581e states as follows: 
5120 

Honorable Andrew Carnpfell. Page 'j (WW-llt6) 

'The Commlssloners Court of any 

county in this State may contract and 

a ree with any other county, political 

* lvlslon, governmental unit, or 

municipal corporation for the joint 

acquisition of right-of-ways, or joint 

construction or maintenance of canals, 

drains, levees and other Improvements 

for flood control and drainage as related to flood control, and for making 

necessary outlets, and malntalnlng them. 

Such contracts shall contain such terms, 

provisions and details as the governing 

bodies of the respective political subdivisions shall determine to be necessary 

under all the facts and circumstances. 

It is assumed that the contract entered Into between 

the County Commissioners Court of Hamilton County and the U.S. 

Department of Agriculture in the Instant case is in compliance 

with the provisions of the Texas Constltutlon and Statutes. 

Further, if the Commissioners Court has not already 

done so, it Is assume3 that the Court will set a maximum amount 

of tax rate out of the Flood Control tax levy for the purpose 

of complying with Its part of the foregoing agreement, and the 

exact amount thereof will he speclfled both in the contract and 

Commlssloners Court minutes. Also hit Is assumed that the 

Commissioners Court wil.1 leave sufficient margin within the 

Flood Control tax rate so that the County will be In position 

to issue and finance tl.me warrants a.nd bonds out of this fund 

in the future. 

In view of the State leglsl~atlve intent and policy 

as expressed In the above statutes, It is our opinion that 

such provisions encourage cooperatlv e agreements or contracts 

between counties ard other political subdivisions, including 

an agreement with a dlvlrlon or department of the Federal 

Government In regard to t?&e development and maintenance of 

watershed and flood protectl~on ~.:rojects. 
- I. ‘9 

Honorable Andrew Campbell, Page 6 (~~-1.106) 

SUMMARY 

The Commissioners Court of Hamilton 

County, having obtained an easement 

on private land on which watershed 

and flood prevention Improvements 

will be constructed, and having established a Flood Control Fund under 

Section l-a of Article VIII of the 

Texas Constitution and Article 7o48a, 

Vernon's Civil Statutes, the county 

Is authorized to contract or otherwise 

agree to be a sponsoring agent of a 

watershed protection and flood control 

project to be established by The United 

StatesDepartment of Agriculture under 

Public LOW 566. 

Yours very truly, 

WILL WILSON 

Attorney General of Texas 

I. Raymond Williams, Jr. 

Assistant 

1RWJr:mm 

APPROVED: 

OPINION COMMITTEE 

Morgan Nesbltt, Chairman 

Howard Mays 

Llnward Shivers 

Charles Llnd 

REVIEWED FOR THE ATTORNEY GENERAL 

BY: Houghton Brownlee, Jr.