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THE ATTORNEY GESERAL 

OF-TEXAS 

Ausrrmr. T-a 76711 

April 12, 1973 

Honorable Cib Lewis, Chairman Opinion No. H- 28 

House Committee on Natural Resources 

House of Representatives Re: Whether the Interlocal 

Capitol Station 2910 Cooperation Act (Art. 4413(32c), 

Austin, Texas 78767 V. T. C. S. ] would permit 

conservation and reclamation 

districts to contract for their 

Dear Representative Lewis: 

fire protection needs with home 

rule cities or rural fire prevention districts. 

You have asked whether the Interlocal Cooperation Act, Article 

4413(32c). Vernon’s Texas Civil Statutes (Acts 1971, 62nd Leg., Ch. 513, 

p. 1971). would permit conservation and reclamation districts to contract 

for their fire protection needs with home rule cities or rural fire 

prevention districts. 

The Interlocal Cooperation Act only authorizes local governments 

to contract for another local government to perform for it a service 

which all the parties “are legally authorized to perform”. Art. 4413( 32~). 

5 4(b), V. T. C. S. Therefore, a conservation and reclamation district 

may contract for fire protection only if it has authority to provide that 

service itself. 

The powers of such districts are found in Article 16, 5 59(b), Texas 

Constitution, which after authorizing the creation of conservation and 

reclamation districts, provides: 

‘I. . . which districts rhall be governmental agencies 

and bodies politic and corporate with such powers of 

government and with the authority to exercise such 

rights, privileges and fun.ctiona concerning the subject 

matter of this amendment as may be conferred by law. ” 

(Emphasis added) 

The powers of such districts therefore are limited to the subject matter 

of § 59 and by the functions conferred upon them by appropriate legislative 

enactment within the scope of 5 59(a). 

p. 118 

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Honorable Gib Lewis, page 2 (H-28) 

The “rubject matter” is defined in 5 59(a) ar: 

“The conservation and development of all of 

the natural rerources of thir State, including 

the control, rtoring, preclervation and distribution 

of ita storm and flood waters, the water8 of itr 

river8 and streama, for irrigation, power and all 

other useful purposes, the reclamation and irrigation 

of its arid, semi-arid and other landa needing irrigation, the reclamation and drainage of its overflowed 

landr, and other landn needing drainage, the conservation and development of ite fore&r, water and hydroelectric power, the navigation of its inland and 

coastal waters, and the preservation of all cluch 

natural reeourcea of the State are each and all hereby 

declared public rights and duties; and the Legislature 

e.hall paar all ouch lawr as may be appropriate thereto. I’ 

The Supreme Court of Texan in Deason v. Orange County Water 

Control and Improvement District, 244 S. W. 2d 981 (1952), held that 

the purpose of providing fire protection “to serve moat of the houses, 

residential and businena, in the district”, was outside the “subject 

matter”. 

“Section 59(a), Article 16 . . . contains no 

language which would support a holding that the 

people in enacting the amedment contemplated 

that a water control and improvement district 

created for the purpose of conserving and developing the natural rerourcea of the district 

would have the power to provide firefighting equipment and appliances for a town within aaid dirtrict. ” 

(244 S. W. 2d at 984) 

Under Deacon. it ia our opinion that dietricts organized under 

Article 16, $ 59, having no authority to provide fire protection, are 

likewise unable to contract for ouch fire protection under the Interlocal Cooperation Act. 

Your letter specifically arka whether the use of water coneerved by 

the district for firefighting would be a “urreful purpose” within the 

meaning of that portion of 5 59(a) which states aa one of the purposea 

p. ll9 
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Honorable Gib Lewir, page 3 (H-28) 

of that provision i# the conservation of water and itr distribution for 

“all other useful purposes”. 

In our opinion, firefighting would be a useful purpose.. However, 

the conrervation and distribution is authorized, not the use, and the 

quoted language would not authorize operation of a fire department. 

You next ask whether the purpore of “conrervation and development” 

and preservation and conservation of resource8 ctated in 5 59(a) could be 

construed broadly enough to allow the leare of or contract for the use 

of firefighting equipment. 

In our opinion, a forested district having within ita purpar es the 

conservation and preservation of forests would be authorized by 5 59(a) 

to employ ouch means ae were reasonably necessary for the protection 

of fore&r from fire and to contract for those services to be performed 

by another local government under the Interlocal Cooperation Act. The 

Act would not authorize contracted arrangementa for fire protection 

of all property within the district. 

Finally, you aak whether Deason cannot be dietinguirhed because 

the Interlocal Cooperation Act was paared since Deason was decided. 

The Legislature cannot expand or modify conrtitutional limitationr. 

Arnold;. Leonard. 273 S;W. 799 (Tex. 1925); Bexar County Hospital 

District v. Crosby. 327 S. W. 2d 445 (Tex. 1959). The Interlocal 

Cooperation Act doee not attempt to do so. 

SUMMARY 

Conservation and Reclamation Dirtrictr, organized 

purruant to Article 16, 4 59, Conrtitution of Teue, are not 

authorized to contract with other local governments under 

the Interlocal Cooperation Act [Art. 4413(32cHV. T. C. S. )] 

for fire protection within the district except where necessary 

to protect the property of the district itself and then only to 

the extent the district itself would have been authorized 

to furnirh ouch protection. 

Very truly your*, 

c/ p. 120 
Honorable Gib Lewis. page 4 (H-28) 

APPROVED: 

DAVID h4. KENDALL, Chairman 

Opinion Committee 

p. 121