eon. F. .R. Booth 

Executive Director 

Texas Water Rights 

August,4, 1967 

Opinion No. M-116 

Commission Re: Navigation end reclamation 

Sam Houston State ~Office Building powers of Flamingo Isles 

Austin, Texas 78711 Municipal Utility District. 

Dear Mr. Booth: 

You have requested my opinion es to the constitutionality of 

navigation end reclawation along the Texas coast, or coastal islands, 

in the manner proposed by Flawing0 Isles Municipal Utility District. 

You request answers to the following questions: 

1. Is the dredging of canals which will be used for ~recree- ” 

tional end pleasure boating end for access to houses within 

the District en euthorised project for which’bonds may be 

issued, under the powers of a water control and improvement 

district for navigation of its coastal and inland waters and 

the reclamation and drainage of overflowed and other lands 

needing drainage in the District? 

2. Is depositing end leveling fill on private property of a 

developer end construction of bulkheads an authorieed project for which bonds may be issued, under‘the powers of a 

water control and improvement district for navigation of 

its coastal and inland waters end the reclamation and drainage of overflowed end other lends needing drainage-in the 

District? 

This district was created by the Texas legislature (Article 8280-327, 

Vernon’s Civil Statutes) and such a statute es this has been held to be 

~a general law as distinguished from a locel or special act. It is not 

in contravention of Article,III. Baetion 56 of the Texas Constitution. 

L.C.R.A. v. UcCrew. 125 Tax. 26g, 83 S.W.Zd 629 (1935); L.N.V.A. v. 

m, 140 Tex.,2%, 167 S.W.2d 1011 (1943); Atwood v. Willecy County Nav. 

Dist.. 271 S.W.2d 137 (Tex.~Civ. App. 1954. Ref. N.R.E.); Countv of 

Kron v. Wilson, 160 Tex. 25. 326 S.W.2d 162 (1959)‘,; Sullins v. City of 

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Hon. F,. R. Booth, page 2 (M-116) 

e, 336 S.W.2d 814, (Tex. Civ. App. 1959, no writ). All of Chapter 

3A, Title 128, V.C.S. relating to water control and improvement districts is incorporated by reference into Article 8280-327, the organic 

law of this district, and such laws apply when they are not in con:. 

flict with the act creating this district. Sec. 3, of Art. 8280-327; 

Trim&r v. Carlton, 116 Tex. 572, ,296 S.W. 1070 (1927); Hidalgo County 

W.C.I.D. No. 1 v. Hidalgo County, 134 S.W.2d 464, (Tex. Civ. App. 1939, 

Error Refused). It is valid to incorporate the nsvigation and reclamation statutes relating to general law water ,control and improvement 

districts by reference into the organic law of Flamingo Isles Muoicipal 

Utility~ District. Road Dist. No. 1, Jefferson County v. Sellers, 142 

Tex. 528, 180 S.W.2d 138 (1944); v. Yates, 145 Tex. 38,, 194 

S.W.2d 395 (1946); Newton Lumber Company v. Newton Countv Water Supply 

District, 328 S.W.2d 461 (Tex. Civ. App. 1959, no writ). Lower Nueces 

River Water Supply District v. Cartwright, 274 S.W,Zd 199, 207 (Tex. 

Civ: App. 1954, Ref. N.R.E.). 

The Texas Constitutional provision under which this District was 

organized plainly provides for “the reclamation and drainane of its 

m ” end for “the of its 

iaters.” 

i 

Art& XVI, Sec. 59, Texas Constitution. 

nlan d and coastal 

By the provisions 

of certain general ,stetutes relating to water control and improvement 

districts, the Legislature has declared that “such districts shall be 

ornanized end ouerated under the conditions, provisions. authority and 

restrictions” provided in.Article,XVI, S~ec. 59 of~our Texas Constitution. Articles 7880-l and 7880-7, Vernon’s Civil Statutes. 

Section 3, of Article 8280-327, givesFlamingo IslesMunicipal 

Utility District: 

II 

~ . . all of the . e . powers a a s conferred . d . by Chapter 

3A of Title 128, Revised Civil Statutes of Texas, 1925, , L a 

includine all oowers and euthoritv relating to the navigation 

pf its coas.&& and inland wateX.8 md the reclamation and drainage of_nverflowed ~ . . 

and the issuance of bonds therefor as authorized by and provided in said Chapter e . *” (Emphasis added) 

It is the opinion of this office that the project described in 

your request is clearly within the constitutional and statutory powers 

of Flamingo Isles Municipal Utility District, to-wit: reclamation, 

drainage and navigation. Compare,Parker v. San Jacinto County Water 

Control & Improvement Dist., 154 Tex. 15,.273 S.W.2d 586 (1954). 

Land fill along a coastline, or river, or island, has long been 

recognized as one of the means of reclamation of lands. 56 Ami, Jur., 

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Hon. F. R. Booth, page 3 (~-116) 

Waters, Sec. 501, pages 909-10; Annot. 91 A.L.R.2d 858; Lorino v. eford Packing Co., 142 Tex. 51, 175 S.W.2d 410 (1943); Cox v. DallasL.I.D., 

258 S.W.2d 851 (Tex. Civ. App. 1953, Ref. N.R.E.). It was long ago recognized that the legislature could decide the size of the district and 

the territory to be included. Paulsen v.,Portland, 149 U.S. 30 (1892); 

II Farnham, Law of Waters and Water~Riahts, Sec. 174, page 938. In 

Attorney Cenerel’s Opinion No. O-7018 (1946) we said: 

“It is our understanding that the proposed (water control 

and improvement) district would be organized only for the purpose of reclaiming lands which are subject to overflow and 

providing drainage of the excess waters.” 

“Section 3 (of Article 7880, V.C.S.) specifically provides 

that a water control and improvement district may be organized 

for the purpose stated.” 

In Smith v. Wilson, 13 F.2d 1007 (S.D. Tex., 1926), which involved 

a navige~district organized pursuant to Article XVI Section 59 of 

the Texas Constitution, Judge Hutcheson writing for the court holds ate 

page 1010: 

“(W)e think its plain that (the) contention . . . that . . . 

the district was formed really for a private and.not a public 

purpose, and that the taxes were voted in violation of Article 3, 

g 52, and Article 8, 8 3, of the State Constitution, may be disposed of sumsarily as,, if not frivolous, certainly plainly without ,merit.” 

“Every public improvement of this nature inevitably results 

in benefit to private individuals; in fact, in purely assessment 

districts as such the union of private benefit with public good’ 

is an essential to the district, and it goes without saying that 

the fact that the Freeport Sulphur Company, and other persons 

owning property in the town of Freeport, will benefit from the 

improvement, does not in any manner prevent the tax levy from 

being public in its nature.” 

Article VIII, Sec. 3, Texas Constitution provides that, “Taxes 

shall be levied and collected by general laws for public purposes only.” 

As stated above, Article 8280-327 is a “general law.” L.C.R.A. v. McCXew, 

125 Tex. 268, 83 S.W.2d 629 (1935). DpVis v. City of Lubbock, 160x 

38, 326 S.W.2d 699 (1959), at page 709. held that the Constitutional 

provision requiring taxes to be levied and collected for “public purposes” 

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Hon. F. R. Booth, page 4 (~-116) 

is no narrower in meaning than the words "public use" es used in 

Article I, Sec. 17, Texas Constitution. While "public use” is finally a judicial question, the declaration of the Legislature upon 

the subject is entitled to great weight and respect in arriving at 

a final decision of~the question. Atwood v. Wiilacy County Navination District, 271 S.W.2d 137 (Tex. Civ. App. 1954, Ref. N.R.E.); 

Smith v. Wilson, supra; B&r& v. City of Taylor, 37 S.W.2d 291 (Tex. 

Civ. App. 1931), affirmed in u v. City of Taylor, 123 Tex. 39, 

67 S.W.2d 1033 (1934). 

In Atwood v. Willacv County Navigation District, supra, the San 

Antonio Court of Civil Appeals, through Justice Norvell held that the 

acquisition of land by the district for the purpose of leasing the 

land as industrial sites in the proximity of a port is reasonably 

necessary to the successful operation of the port end is for a "public 

use" within the meaning of the Texas Constitution. In this case, the 

appellee district was organized in accordance with Article XVI, Sec. 

59 of the Texas Constitution as was the Flamingo Isles Municipal 

Utility District. 

By Sections 7 end 9, of Art. 8280-327, V.C.S., the Legislature 

has found and declared the "benefits" of the navigation and reclamation of the ,seeshore lends, or island@. No hearing as to benefits is 

necessary (as is the case in a district created by general law) where 

the Legislature so enacts the above type of language.. Southern Paine 

Lumber Compen v. Newton County W.S.D,, 325 S.W.2d 724, (Tex. Civ. 

App. 1959, Refused N.R.E.); State ex rel. Merriman v. m, 116 Tex: 

527. 296 S.W. 1085 (1927); Baunham v0 Willacv County W.C.I.D. No. 1, 

112 S.W.2d 318, (Tex. Civ. App. 1938, Error Refused); City of Houston 

v. Fore. 412 S.W.2d 35. (Tex.,Sup., 1967). 

Navigation principally by pleasure boats, as distinguished from 

commercial craft does not alter the fact that such is "navigation." 

12 Am. Jur.2d. Boats end Boating, Sec. 2. page 390; Mentor Harbor 

Yachting Jpl&v. Mg4 ntor'La,goons. Inc., 170 Ohio 193. 163 N.E.2d 373 

(1959); ! Nekoosa Edwards Pal ,er Co. v. Railroad Commission, 201 Wis. 

40. 228 1 

27i. 

H.W. 1r i4 (1929); State ex rel E lamsann v. Levltan, 200 Wis. 

228 N.W. 140 (1929); State v. Rorrer. 127 Minn. 6( 

617, L.R,A. 1916c, 139 (1914Jil _~ _ _ 

1, 148 N.W. 

amorev v..Metcelf 52 Minn. 181, 53 

N.W. 1139 (1893); Grand Rapids v. Powers, 89Mich: 94. 50 N.W. 661 

(1891). 14 L.R.A. 498, 20 Am. St. Rep. 276; New England Trout and 

Salmon Club v. Mether, 68 Vt. 338, 35 Atl. 323, 33 L.R.A. 569, (1896). 

The riaht of navigation in tidal waters includes the right of anchorage which may be exercised for business purposes or for-pleasure. 

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1 

Hon. F. R. Booth, page 5 (~-116) 

Anderson v. Reames, 204 Ark. 216, 161 S.W.2d 957 (1942). Public right 

of navigation entitles the public generally to reasonable use of navigable waters for legitimate purposes of transportation and for boating 

or sailing for pleasure in any kind of water craft consistent with 

enjoyment of right by others. Silver Springs Paradise Co. v. m, 50 

F.2d 356 (5th Cir., 1931). The fact that the canals of Flamingo Isles 

Municipal Utility District will be used for recreational purposes es 

well as drainage is irrelevant. See Attorney General’s Opinion No. 

C-436 (1965). 

The Flamingo Isles Municipal Utility District as created by Art. 

8280-327, V.C,S., and its reference statutes applicable thereto, is 

legally created and can lawfully issue bonds, or otherwise act in consonance with its organic laws to carry out the navigation and reclamation plan outlined in your opinion request. This opinion does not 

obviate the need for the Texas Water Rights Commission under Art. 

7880-139, v.c.s., to perform all of its statutory duties as to the 

proposed plans of the Flamingo Isles Municipal Utility District to 

issue bonds. Full administrative discretion on behalf of the State 

is given your Commission under statutory guide-lines to approve, or 

disapprove, the project when presented. Likewise, this opinion is 

not to be construed as approval, or partial approval, by the Attorney 

General of Texas of eny’bonds of said district. Attorney General’s 

Opinion No. O-7018, (1946). Pursuant to Article 7880-34, V.C.S., 

such bonds may be considered only at the time same have been properly 

presented to this office. Therefore,,the questions you have submitted 

cannot be answered more completely et the present time. 

SUMMARY 

Flamingo Isles Municipal Utility District, created by 

Art. 8280-327, V.C.S., can lawfully engage in navigation and 

reclamation projects along the Texas Coast, or islands thereof, 

but the feasibility of such projects must be approved by the 

Texas Water Rights Coensisrion pursuant to Article 7880-139, 

. 

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Hon. F. R. Booth, page 6 (~-116) 

V.C.S., and subsequent approval by the Attorney General pursuant 

to Article 7880-34, V.C.S., must be obtained if such projects 

are to be financed through the issuance of bonds. 

Prepared by Roger Tyler 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Hawthorne Phillips; Chairman 

Kerns Taylor;-Co-Chaiman 

John Fainter 

,Paul Martin 

Dyer Moore 

Jack Sparks 

STAFF LECALASSISTANT 

A. 3. Carubbi. Jr. 

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