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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 onNatural 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~). 54(b), V. T. C. S. Therefore, a conservation and reclamation district may contract for fire protection only if ithas authority to provide that service itself. The powers of suchdistricts are found inArticle 16, 559(b), Texas Constitution, which after authorizing the creation of conservation and reclamation districts, provides:

‘I.
. . which districts rhall be governmental agencies andbodies politic and corporate with such powers of government andwith 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 andby the functions conferred uponthem by appropriate legislative enactment within the scope of 559(a). p. 118 -_:

Honorable Gib Lewis, page 2 (H-28)

The “rubject matter” is defined in 559(a) ar:

“The conservation anddevelopment of all of the natural rerources ofthir State, including the control, rtoring, preclervation and distribution of ita storm and flood waters, thewater8 **of** itr river8 and streama, for irrigation, power andall 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 andhydroelectric power, the navigation of its inland and coastal waters, and thepreservation of all cluch natural reeourcea ofthe State are each and all hereby declared public rights and duties; and the Legislature e.hallpaar all ouchlawr 

### as may be appropriate thereto. I’ The Supreme Court of Texan in Deason v. Orange CountyWater 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, inthe district”, was outside the “subject matter”
. “Section 59(a), Article 

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. . . contains no language which would support aholding that the people in enacting the amedment contemplated that a water control and improvement district created for the purpose of conserving and developing thenatural rerourcea of the district would have the power to provide firefighting equipment and appliances for a townwithin aaid dirtrict. ” (244 S.W. 2dat 984) Under Deacon. it ia our opinion that dietricts organized under Article 16, $59, having noauthority to provide fire protection, are likewise unable to contract for ouchfire protection under theInterlocal Cooperation Act. Your letter specifically arka whether the use ofwater coneerved by the district for firefighting wouldbe a “urrefulpurpose” withinthe meaning of that portion of 559(a) which states aa one ofthe purposea p. ll9. .

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

of thatprovision i# the conservation ofwater and itr distribution for

“all other useful purposes”
. In our opinion, firefighting would be a useful purpose.. However, the conrervation and distribution is authorized, notthe use, and the quoted language would not authorize operation of afire department. You next ask whether the purpore of “conrervation and development” and preservation and conservation of resource8 ctated in 559(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 purpares the conservation and preservation of forests would be authorized by 559(a) to employ ouchmeans ae were reasonably necessary for the protection offore&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 cannotbe 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, 459, Conrtitution of Teue, are not authorized to contract with other local governments under theInterlocal Cooperation Act [Art. 4413(32cHV. T. C. S.)] for fire protection within the district except where necessary toprotect the property of the district itself andthen only to the extent the district itself would have been authorized tofurnirh ouch protection.Very truly your*,



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

APPROVED:

DAVID h4. KENDALL, Chairman Opinion Committee

p. 121