l+‘I.LL WILSON

A.,qWRNEY CW!lNERAl. August 7, 1961

HonorableAndrew Campbell CountyAttorney yami1toncounty 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 pearMr~Campbell: Public Law 566.

Your request for an opinion concerns a proposed cooperativeproject provided for by Public Law 566 which wouldprovide a series of dams, levees, terraces, and structuresalong Pecan Creek in Hamilton County on privately owned landon which public easement has been obtained. The purpose ofthe project would be for flood prevention, and water conservation.

Public Law 566 (Title 16, Section 1001-5, U.S.C.A.) ispopularly known as The Watershed Protection and Flood PreventionAct. EV. This CongressionalAct was signed into law in The declaredpurpose of the Act is to authorize and direct the Federal Covernment through the Department of Agricultureto'cooperatewith the several states and their pollticalsubdlvislons Inpreventing flood water, erosion, and sediment'

damage In the watersheds of the rivers and streams ofthe United States, thereby preserving and protecting the &Ion's land and water resources.

Under Section 1003-Q of Public Law 566, the Secretaryof Agriculture Is authorized to cooperate,and enter Into agreementswith and to furnish financial and other assistance tocounties in regard to flood control and related problems. Cn,thlspoint the Act speclficall~~ provides that all the cost ofinstallationand construction (includingengineering costs) ofimprovementsapplicable to flood prevention will be borne bythe Federal Governmentand paid for by the Secretary out of fundsappropriated for watershed and flood protection.HonorableAndrew Campbell, Page 2 (~~-1106)

Section 1304 cf the sameA&,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 Governmentany 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 "makearrangements satisfactoryto the Secretary for defraying costs of operating and maintaining suchworks of improvement, in accordancewith regulations presented by the Secretary of Agriculture.' This condition would place on Hamilton County, the propose'dlocal 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 leglslatlveattitude of the State of Texas in rd te flood control and watershed protection. ;;g) of Article XVI states In part: Section

"The conservationand development of all of t,he natural resources of this State, including the control, storing,preservation and distrlbution of its storm and floodwaters, the reclamationand drainage of its overflowed lands, are each and all hereby declaredpublic rights and duties;

. . *'
Compatiblewith 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-marketand 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 respectiveboundaries, "exceptthe first Three Thousand Dollars ($3,000)value of residentialhomesteads, not to exceed thirty cents (30#) on each One Hundred Dollars ($100) valuation, In addition to ali other ad valorem taxes authorizedby the Constitution of the State,provided the revenue therefrom shall be used as provided in this Act for the Constructionand maintenance of Farm-to4arket and Lateral Roads. . I 

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HonorableAndrew Campbell, Page 3 (~~-1106)

orfor Flood Control and for these two (2)purposes only." (mphasls ours)

Section 3 of Article 7048a requires that the taxes / collectedunder the Act are to be creditedby the Conunlsslon- ,ers Court to the two separate funds discussed. The Farm-toMarketand Lateral Roads Fund to be used solely for authorized roadswithin 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 bemade proportionately in accordancewith the tax allocation adoptedat the election called for the purpose under Sections 7 and 8 of Article 7048a. See Attorney General's Opinion No. V-1222pertaining to the sufficiencyof wording for ballots tobe used at an election on levying farm-to-market or flood controltaxes.

Section 5 of Article 7048a places the funds In the' FloodControl Fund within the jurisdictionand control of the CountyCommissioners Court only to be used for flood control purposes. This Section provides further that all or a part of~suchfund can be used In connectionwith the plans and programsof the Federal Conservation Service and several other listedtypes of water control and Improvement districts.

If under the before mentioned provisions of Article' 704&t,Vernon's Civil Statutes,passed pursuant to Article VIIIof the Texas Constitution,Hamilton County assessed and collectedthe authorized tax and a portion of that tax was allocatedto the Flood Control Fund as the result of the called election,and the amount of funds sc, allocatedwas sufficient tomaintain 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 thusmeet 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 contemplatedby Public Law 566. Attorney General'sOpinion No. WW-595 held that Navarro County could spendtax money to maintain dams constructed In Navarro County by a joint conservation dlstrlct If suchmoney came from the Flood Control Fund establishedunder Article 7048a, Vernon's Civil Statutes. -,HonorableAndrew 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 Conservationwith 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 countymight contract under Article 7048b with the Federal Sol1 Conservation Service, It Is necessary that the county complywith Article 7048a before funds wlli be available fbr the maintenance of boll conservation projects. This Article also provides that the responsibility for carryingout such plans and the expendlture of county funds (underArticle 7048a, supra) and the funds of the polltical subdivisionconcernedmay be, by agreement, divided hetween the parties or delegated to either the county or to
one of said subdivisions. The contractsmay be for a speclfled term of years or until certain plans or programs have been accomplished.

Also Article 1109k of Vernon's Civil Statutespro1 vides that all counties are authorized to enter Into contracts with soil conservationdistricts for the joint acquisition of right-of-waysor joint construction or maintenance of improvements restricted to flood control. Such contractsmay contain any termsas the governing bodies of the respective political subdivisionsdetermine to be necessary under all facts and clrcumstances. Here again all counties are authorized to spend taxmonies In the Flood Control Fund levied under Article 7048a ofVernon'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 Section6 the desire of the Legislature to provide an adequateprovision In the law that would authorize counties to enter into agreementswith other governmentalunits for the purposesof establishing,operating and maintaining flood protectionand soil conservation projects.

Finally, Section 1 of Article 1581e,Vernon's Civil Statutes,authorizes all counties the right of eminent domain to condemnand 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 CommissionersCourt deems the acquisition of the land necessarycondemnation of the fee titlemay be had for the purposesof flood control under Article 3264, Vernon's Civil Statutes,and related provisions dealing with eminent domain and condemnationpowers of counties. In addition to the powers specifiedabove Section 3 of Article 1581e states as follows:

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HonorableAndrew Carnpfell. Page 'j(WW-llt6)

'The Commlssloners Court of any county in this Statemay 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. Departmentof Agriculture in the Instant case is in compliance with the provisions of the Texas Constltutlonand Statutes.

Further, if the Commissioners Court has not already done so, it Is assume3 that the Courtwill set a maximum amount of tax rate out of the Flood Control tax levy for the purpose of complyingwith Its part of the foregoing agreement, and the exactamount thereofwill he speclfledboth in the contract and CommlsslonersCourtminutes. Also hitIs assumed that the CommissionersCourtwil.1leave sufficientmargin within the FloodControl tax rate so that the Countywill be In position to issue and finance tl.me warrants a.nd

bonds out of this fund inthe future.

In view of the State leglsl~atlve intent and policy
as expressed In the above statutes, It is our opinion that suchprovisions encourage cooperatlv e agreements or contracts betweencounties ard other political subdivisions,including
anagreementwith a dlvlrlon or department of the Federal GovernmentIn regard to t?&e development and maintenance of watershedand 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 ControlFund under Section l-a of Article VIII of the Texas Constitutionand Article 7o48a, Vernon's Civil Statutes, the county Is authorized to contract or otherwise agree to be a sponsoringagent of a watershed protection and flood control project to be establishedby The United StatesDepartmentof Agricultureunder Public LOW 566.

Yours very truly,

WILL WILSON Attorney General of Texas

I. RaymondWilliams, Jr. Assistant

1RWJr:mm

APPROVED:

OPINION COMMITTEE Morgan Nesbltt, Chairman

HowardMays Llnward Shivers Charles Llnd

REVIEWEDFOR THE ATTORNEY GENERAL

BY: Houghton Brownlee, Jr.