DAN MORALES 

.ATTORNEY GENERAL 

@ffice of the Eittornep @eneral 

State of PCexa$ 

November 5, 1996 

The Honorable Mike Driscoll 

County Attorney 

Harris County 

1001 Preston, Suite 634 

Houston, Texas 77002-1891 

Opinion No. DM-420 

Re: Authority of the Harris County Flood 

Control District to provide for recreational 

and environmental improvements under 

Senate Bill 586, Act of May 21, 1993,73d 

Leg., RS., ch. 409, 1993 Tex. Gen. Laws 

1711, 1711 (RQ-798) 

Dear Mr. Driscoll: 

You ask about the authority of the Harris County Flood Control District (the 

“district” or “flood control district”) under a 1993 amendment’ to its 1937 special law to 

provide for recreational and environmental improvements. The district was created under 

the 1937 law to accomplish the purposes of section 59 of article XVI of the Texas 

Constitution2 

‘SeeActofh4ay21,1993,73dLeg.,RS.,ch.409.1993Tex. Gen.Laws 1711.1711. 

ZArticle XVI, section 59 provides in part: 

(a) The conservation and development of all of the natural resources of this 

State, including the control, storing, preservation and distribution of its storm 

and flood waters. the waters of its riven and streams, for irrigation, power and 

all other useful purposes, the reclamation and irrigation of its arid, semi-arid and 

other lands needing irrigation, the reclamation and drainage of its overtlowed 

lands, and other lands needing drainage, the conservation and development of its 

forests, water and hydra-electric power, the navigation of its inland and coastal 

waters, and the preservation and conservation of all such natural resources of the 

State are each and all hereby declared public rights and duties; and the 

Legislature shall pass all laws as may be appropriate thereto. 

(b) There may be created within the State of Texas, or the State may be 

divided into, such number of conservation and reclamation districts as may be 

determined to be essential to the accomplishment of the purposes of this 

amendment to the constitution, which districts shall be governmental agencies 

and bodies politic and corporate with such powers of govemment and with the 

authority to exercise such rights, privileges and functions concerning the subject 

matter of this amendment as may be conferred by law. 

(c) The Legislature shall authorize all such indebtedness as may be 

necessary to provide all improvements and the maintenance thereof requisite to 

the achievement of the purposes of this amendment, and all such indebtedness 

may be evidenced by bonds of such conservation and re&mation districts, to be 
The Honorable Mike Driscoll - Page 2 (DM-420) 

including the control, storing, preservation and distribution of the 

storm and flood waters, and the waters of the rivers and streams in 

Harris County and their tributaries, for domestic, municipal, flood 

control, irrigation and other useful purposes, the reclamation and 

drainage of the overflow land of Harris County, the conservation of 

forests, and to aid in the protection of navigation on the navigable 

waters by regulating the flood and storm waters that flow into said 

navigable streams. 

Act of May 10, 1937, 45th Leg., R.S., ch. 360, 9 1, 1937 Tex. Gen. Laws 714, 714. 

Under the 1937 law, the district, whose governing body is the Harris County 

Commissioners Court, is authorized, with voter approval, to issue bonds and to collect 

taxes to service them. Id. $5 1,3-7, at 714,716-18. A 1947 law authorized the district to 

impose, with voter approval, a maintenance and operations tax as well. Act of 

June 4,.1947, 50th Leg., R.S., ch. 407, 1947 Tex. Gen. Laws 952, 952. 

The 1993 legislation you ask about, Senate Bill 586, provides in pertinent part: 

Recreational and Environmental Improvements 

(a) The Harris County Flood Control District, in connection 

with flood control facilities and projects, may provide for or 

participate in the development, operation, or maintenance of: 

(1) linear parks along drainage courses mainmined and 

operated by the district; 

(2) hike and bike trails; 

(3) nonenclosed recreational facilities, including game fields 

and playgrounds; and 

issued under such regulations as may be prescrii by law and shall also, 

authorize the levy and collection within such districts of all such taxes, equitably 

distriiuted, ss may be rmsary for the payment of the interest and the creation 

of a sinking tint6 for the payment of such bends; and also for the maintenance of 

such districts and hnprovetnents, and such indebtedness shall be a hen upon the 

property assessed for the payment thereofi provided the L..egislatnre shall net 

authorize the issnance of any bonds or provide for any indebtedness against any 

reclantation district unless such proposition shall first be submitted tc the 

qnalifted property tax-paying voters of such district and the proposition adopted. 

A new subsection (f) was added to article XVI, s&ion 59 in 1978 to specitically provide that 

districts may engage in fire-fighting activities and issue bonds for such purposes. See H.R.J. Res. 42, 5 2, 

65th Leg., RS., 1977 Tex. Gen. Laws 3374 (1978). 

p. 2336 
The Honorable Mike Driscoll - Page 3 W-420) 

(4) other environmental improvements, including public or 

private nature reserves or wildlife habitat restoration and 

improvement projects. 

(b) In order to carry out the purposes of Subsection (a) of this 

section, the district may execute contracts or enter into cooperative 

agreements with: 

(1) the federal government, a federal agency, or a federally 

sponsored organization; 

(2) the state, a state agency, a political subdivision of the 

state, or any unit of local government; 

(3) a nonprofit corporation or foundation; 

(4) a private individual or corporation; or 

(5) a public service organization or neighborhood 

organization. 

(c) The district may use property, rights-of-way, easements, or 

other land owned or managed by or otherwise available to the district 

for purposes of Subsection (a) of this section. 

(d) The use by the district of any property owned or managed 

by or otherwise available to the district for the purposes of 

Subsection (a) of this section is determined to be consistent with the 

use of that property for flood control purposes if the improvements 

do not significantly impede the flow of floodwaters or reduce the 

carrying capacity of the drainage facilities of the district. 

. 

(f~ The district may spend its own Cmds for the purposes of this 

section. The capital cost to the district of parks, trails, facilities, and 

improvements under this section may not exceed five percent of the 

total cost of the flood control facilities and projects with which the 

improvements are associated. This section does not limit the 

expenditure of tinds from sources other than taxes collected by the 

district. 

Act ofMay 21, 1993,73d Leg., RS., ch. 409, § 1, 1993 Tex. Gen. Laws 1711, 1711-12. 

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The Honorable Mike Driscoll - Page 4 (DM-420) 

L The District’s Authority to Use Tax and Tax Bond Funds to Make 

Recreational Improvements. 

You ask frrst: 

Does Harris County Flood Control District have the authority, by 

virtue of Senate Bill 586, to use tax and bond revenues for 

development and maintenance of recreational improvements 

described in the statute without an election approving expenditures 

for such purposes? 

A. Judicial and Attorney General Opinions. 

We begin our analysis with a review of relevant judicial and attorney general 

opinions. A 1952 Texas Supreme Court opinion, Deason v. Orange County Wuter 

Control & Improvement District No. I, 244 S.W.2d 981 (Tex. 1952), ruled that despite 

specific authorization in the applicable general law statutes a water control and 

improvement district did not have the authority to expend bond funds for fire-fighting 

equipment since the constitutional authorization for the district -- article III, section 52 

and article XVI, section 59 -- did not refer to, and the voters in adopting the amendments’ 

language would not have contemplated, the district owning and operating such equipment: 

Both constitutional amendments specify the circumstances and 

purposes for which water control and improvement districts may be 

organized and the Legislature is without power to add to or 

withdraw from the circumstances and purposes specified. 

Deason, 244 S.W.2d at 984, 

Two years later the statute at issue in Deason was again before the supreme court 

in Parker v. San Jacinto County Water Control and Improvement District No. I, 273 

S.W.2d 586 (Tex. 1954). The plaintiffs in Parker sought to enjoin the district from 

spending tax bond funds to install a sanitary and storm sewer disposal system as 

specifically authorized by a statute. They argued, citing Deuson, that the sewage system 

was not within the constitutional authorization for the district. The court disagreed: 

Plaintiffs’ attack upon the statute fails because the power to 

erect a sewerage disposal plant is clearly within Sec. 59a, Art. 16, 

Texas Constitution. The water brought into the area is not destroyed 

by use but must be returned to the hydrological cycle. The 

Conservation Amendment to our State Constitution would certainly 

permit the purification of water before it returns to the groundwater 

table and the river system. The protection of the purity of the waters 

of the State is a public right and duty under the Conservation 

Amendment. . 

Parker, 273 S.W.2d at 586. 

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The Honorable Mike Driscoll - Page 5 (DM-420~) 

Specifically with regard to a district’s authority to provide recreational facilities, 

Attorney General Opinion H-491 addressed the constitutionality of provisions in section 

54.201 of the Water Code: 

(a) A district shall have the functions, powers, authority, rights, 

and duties which will permit accomplishment of the purposes for 

which it was created. 

(b) A district is authorized to purchase, construct, acquire, own, 

operate, maintain, repair, improve, or extend inside and outside its 

boundaries any and all works, improvements, facilities, plants, 

equipment, and appliances necessary to accomplish the purposes of 

its creation, including all works, improvements, facilities, plants, 

equipment, and appliances necessary to accomplish the purposes of 

its creation, including all works, improvements, facilities, plants, 

equipment, and appliances incident, helpfil, or necessary to: 

. 

(7) provide parks and recreation facilities for the inhabitants 

of the district. 

Noting the supreme court’s holdings in Deuson and Purker, and citing Attorney General 

Opinion C-436, which had found that recreational purposes would “undoubtedly” be 

included in the authority granted by article XVI, section 59, the opinion concluded: 

Where, as here, it is the stated purpose of the constitutional 

amendment to provide among other things for the conservation and 

development of natural resources including the development of 

forests and storing of the waters of the State’s rivers and streams for 

all useful purposes, we do not believe that we can say, as a matter of 

law, that the use of these resources such as waters and forests, once 

developed and conserved, for recreational purposes was not within 

the contemplation of the people who adopted the amendment. 

Attorney General Opinion H-491 (1975) at 4. 

Subsequently, a 1980 court of appeals opinion specifically found that provision of 

recreational facilities under section 54.201, at least the ones at issue -- a community 

center, s wimming pools, tennis courts and a clubhouse - did not further a purpose of 

article XVI, section 59. Harris County Water Control and Improvement Dist. No. 110 v. 

Texas Water Rights Comm’n, 593 S.W.2d 852 (Tex. Civ. App.--Austin, 1980 no writ) 

(hereinafter ‘Harris County WCID #IlO”). Although the court stated that the “sole 

question is whether the proposed recreational facilities are permissible pursuant to acts of 

the Legislature, and not whether an act of the Legislature is valid,” id. at 855, it concluded 

p. 2339 
The Honorable Mike Driscoll - Page 6 @I-420) 

that the proposed facilities “do not fiuther a purpose of Section 54.012 of the Water Code 

or of Article XVI, § 59 of the Texas Constitution.” Id. 

Soon thereafter, in Attorney General Opinion MW-313, this office, addressing 

whether a river authority could provide park and recreational facilities, noted that the 

Harris Counfy WCID #110 decision had “apparently created doubts as to whether the 

river authorities of this state can construct recreational facilities on reservoirs.” Attorney 

General Opinion MW-313 (1981) at 2. It distinguished Hurt-is County WCZD #I10 as 

follows: 

The Harris County W.C.I.D. #l 10 opinion prohibited construction of 

a complex of recreational buildings and facilities which were 

unrelated to the constitutional purposes of the district. It is our 

understanding that the facilities you propose to build are related to a 

relatively minor portion of the total reservoir project and serve to 

promote the full use and enjoyment of the reservoir by the public. 

We feel that the improvements you propose are ordinary and 

necessary to the proper control, management, and regulation of 

public reservoirs and lakes, and are in ltntherance of the 

constitutional purposes of “the conservation and development of all 

natural resources of this State, including the control, storing 

preservation, and distribution of. the water of its rivers and 

streams for irrigation, power and all other useful purposes.” Tex. 

Const. art. XVI, 9 59(a). 

Id. at 4. Attorney General Opinion MW-3 13 did not refer to Deason. 

Some years later, this office dealt with the question whether a chapter 54 municipal 

utility district could purchase real property in the district with district tax money for use as 

a public park pursuant to 1985 amendments to chapter 54 of the Water Code in Attorney 

General Opinion JM-1173. The amendments, “in apparent anticipation of constitutional 

challenge,” Attorney General Opinion Jh4-1173 (1990) at 5, state that they provide 

“complete authority to a municipal utility district to develop and maintain recreational 

facilities,” that no constitutional inhibition prohibits the legislature from authorizing such 

district to develop and operate such facilities, and that the “legislative power is adequate 

to support the enactment of this subchapter without reference to any specific 

constitutional authorization.” Water Code 5 54.771. Quoting the language set out above 

from Attorney General Opinion MW-3 13, Attorney General Opinion JM-1173 stated: 

Taken together, the 1980 Harris County Wuter Control and 

Improvement District case and the 1981 attorney general’s opinion 

teach that the provision of facilities for recreation and pleasure is not 

among the constitutional purposes for which water districts may levy 

and expend ad valorem taxes, but that the provision of recreational 

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The Honorable Mike Driscoll - Page 7 (DM 420) 

facilities may be considered as a proper secondary activity for a 

district iffbrnishing them promotes a constitutional purpose. 

Attorney General Opinion M-1 173 (1990) at 6. Stating that “the fundamental purpose in 

construing a constitutional provision is to ascertain and give effect to the intent of the 

framers,” id. at 7 (citing Deuson, 244 S.W.2d at 981), this office went on to opine that 

“the constitution contains no language which would support a holding that the people, in 

enacting article XVI, section 59, contemplated that a municipal utility district created for 

the purpose of conserving and developing the natural resources of the district would have 

the power to use taxes to provide parks and recreation facilities unrelated to the 

conservation and development of natural resources.” Id. The opinion concluded that the 

municipal utility district could “not use taxes to purchase real property for the independent 

purpose of having it used as a public park and developed recreational area, and that the 

language of subchapter I of chapter 54 is not to be given a reading that would contradict 

or overrule the construction given article XVI, section 59, of the Texas Constitution by 

the Supreme Court of Texas.” Id. at 7-8. 

A few months later, Attorney General Opinion Ih4-1259 responded to a request 

for clarification of Attorney General Opinion IM-1173 regarding whether “a municipal 

utility district created pursuant to Article XVI, section 59 and operating under chapter 

54 of the Texas Water Code” could “use revenue notes to finance the acquisition of park 

land and park facilities.” Attorney General Opinion JIvI-1259 (1990) at 1. Attorney 

General Opinion Jh4-1259 characterized Attorney General Opinion JM-1173 as “confIned 

to the use of tax monies” for the recreational facilities in question there, id. at 3, and 

reafErmed the opinion as thus construed. It then spoke of the Deuson holding as follows: 

[G]iven the context of the narrow question before the court in 

Deason, i.e., the authority of a district to issue its bonds, we think it 

a more reasonable reading of the court’s teaching that the legislature 

may only grant to a district the authority to tax and incur 

indebtedness as specified by section 59(c) of article XVI when such 

authority will be used in Furtherance of a constitutionally enumerated 

purpose. 

Id. at 4. Reading Deacon as standing for the proposition that the legislature could not 

extend the purposes for which taxes and tax bonds could be used beyond those set out in 

article XVI, section 59, Attorney General Opinion JM-1259 concluded that the district 

could use, as distinct from tax or tax bond timds, revenue notes payable with fees charged 

pursuant to specific statutory authorization in Water Code section 54.774 to acquire 

recreational facilities. Id. at 10-l 1. 

B. Application of Precedent to Query. 

Deason and Hark County WCID #IlO, as construed in Attorney General 

Opinions TM-1 173 and Jh&1259, restrict the flood control district from expending district 

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The Honorable Mike Driscoll - Page 8 (DM-420) 

tax or tax bond fbnds for Senate Bill 586 recreational purposes. Although Deuson did not 

deal with recreational facilities, it did, as construed by these attorney general opinions, 

hold that an article XVI, section 59 district was without authority to spend tax or tax bond 

timds for purposes not authorized by that constitutional provision. See Deuson, 244 

S.W.2d at 984; Attorney General Opinions JIM-1259 (1990) at 4-5, Jlvl-1173 (1990) at 1, 

7. Harris County WCZD # I10 in turn stated, although it was perhaps not necessary to the 

ratio decididendi otherwise announced there, that recreational purposes -- at least the 

community center, three swimming pools, four tennis courts, and clubhouse at issue -- 

were not among the purposes of a district created pursuant to article XVI, section 59. 

Harris Cmmty WCZD #I10 and Deason thus suggest that such recreational purposes are 

not included in the article XVI, section 59 authorization on which the district could 

expend tax or tax bond funds. As the objection to such expenditures under these cases is 

constitutionally based -- the absence of constitutional authorization for such uses of tax 

and tax bond finds -- the restrictions cannot be overcome by a statute, such as Senate Bill 

586, purporting to authorize such expenditures. Nor would an election to approve such 

expenditures overcome this constitutional impediment. 

On the other hand, the Parker case suggests that environmental measures 

authorized by Senate Bill 586 would be more likely to be found within the purposes 

authorized by article XVI, section 59 such that the district would be constitutionally 

authorized to expend district tax and tax bond funds. We note, however, such 

environmental purposes as are authorized by the constitution would most likely be found 

to have already been within the district’s authority under its statute prior to Senate Bill 

586, given the broad purpose clause of section 1 of the special act quoted above. In that 

case the voters would most likely, we think, be deemed to have been on notice under the 

existing provisions, at the time they approved district taxes and tax bonds, that the 

proceeds might be used for such environmental purposes. In that case, there is no need 

for a new election to authorize the use of such fimds for these purposes now. However, 

such environmental measures as are not within the contemplation of article XVI, section 

59 may not now, under Deuson and the other authorities cited above, be paid for with 

district tax and tax bond Curds, even ifthe district purports to hold an election authorizing 

such expenditures, given the constitutional impediient to such use of the funds. 

In any case, it is our opinion that while ultimate determination of whether the 

district is authorized to pursue a particular recreational or environmental project under 

Senate Bill 586 would depend on whether the particular project was within the 

constitutional purposes of a district under article XVI, section 59, recreational purposes 

under the statute would as a general matter be less likely and environmental purposes 

more likely to be found within such constitutional authority. Attorney General Opinions 

MW-3 13 and JM- 1173 indicate that the test as to whether a particular project is within the 

constitutional authorization is whether it is independent of the purposes of the 

conservation amendment or, in contrast, a secondary activity which promotes a 

constitutional purpose. A project that is contrary to the purposes of the conservation 

amendment or is solely recreational in purpose would not be a permissible use of tax or 

p. 2342 
The Honorable Mike Driscoll - Page 9 (DM-420) 

tax bond funds. The governing body of the district, the Harris County Commissioners 

Court, should make the requisite factual determinations, at least in the first instance, in 

accordance with this opinion. 

IL The District’s Authority to Use Easements for Recreational and Environmental 

Purposes. 

You also ask “Does Harris County Flood Control District have the power, by 

virtue of Senate Bill 586, to use eaSeme& granted for flood control and drainageprior to 

the effective date of the statute for the purposes set out in the statute?” (emphasis added) 

and “Does Harris County Flood Control District have the power, by virtue of Senate Bill 

586, to use easements granted for flood control, drainage, and recreational purposes uf?er 

the effective date of the statute for the purposes set out in the statute?” (Emphasis 

added). 

We note at the outset that, in part because extraneous factual evidence. as to the 

understanding of the parties could be relevant in their construction, this office regains 

from attempting to construe contractual instruments such as those granting casements in 

attorney general opinions. The test whether an easement acquired by a public body may 

be burdened with particular uses, such as the recreational uses provided for in Senate Bill 

586, is whether the grantor could have reasonably contemplated such uses as within the 

easement at the time he granted it. City of Sweetwater v. McEntyre, 232 S.W.2d 434 

(Tex. Civ. App.--Eastland 1950, writ refd n.r.e.); Milam Count v. Akers, 181 S.W.2d 

719 (Tex. Civ. App.-Austin 1944, writ ref d w.o.m.). In addition, easements and other 

contracts are presumed to refer to the law in force at the time of execution. 14 TFX. JUR. 

3D Contracts 3 222 (1981). Rights conferred thereunder may not be altered, substantively 

at least, by subsequent amendments to the law. Id. 5 222 at 388 (citing authorities). 

We think it clear that Senate Bill 586 recreutional uses of an easement would 

impose substantial additional burdens on a servient estate granted for flood control 

purposes -- that is, on use of the property by the general public. Nevertheless, while we 

generally agree that easements granted for district purposes before the adoption of Senate 

Bill 586 would not include the right to use the property for Senate Bill 586 recreational 

purposes, we cannot say as a matter of law that an easement granted the district prior to 

Senate Bill 586 could not under any circumstances be construed to include the right to use 

the property for such recreational purposes. For example, an easement might expressly 

grant to the district the right to use property for all present and tbture lawlid purposes of 

the district. Also, as suggested above, some recreational uses might be found to be within 

the district’s constitutional authority as well as its statutory authority prior to the adoption 

of Senate Bill 586, in which case easement grantors prior to Senate Bill 586 could be 

found, on given easement language, to have been on notice that the easement would 

include the district’s use of the property for such purposes. 

p. 2343 
The Honorable Mike Driscoll - Page 10 (DM-420) 

Similarly, we cannot say as a matter of law that easements granted after the 

adoption of Senate Bill 586 necessarily include the right to use the property for Senate Bill 

586 recreational purposes. Clearly, the terms of such easements could be expressly limited 

to purposes which do not include recreational activities, even where Senate Bill 586 was 

in force at the time of the grant. Thus, although easements granted for purposes of the 

district generally or even for flood control purposes after the adoption of Senate Bill 586 

would, we believe, be more likely to be construed as contemplating use for Senate Bill 586 

recreational purposes, ultimate determination of the scope of the easement granted would 

require construction of the particular easement and ascertainment of the intent of the 

parties, which we cannot undertake in the opinion process. Of course, in light of our 

discussion in response to your tirst question, if the particular recreational purpose in 

question is not one authorized by article XVI, section 59, an easement acquired with tax 

or tax bond t%tds could not, in any case, be used for such purpose. 

With regard to environmental uses of an easement under Senate Bill 586, we again 

believe that ultimate determination whether an easement includes the district’s right of use 

for such purposes would require construction of the particular easement. In accordance 

with our discussion in regard to your Srst question, however, we think it more likely in the 

case of environmental measures that such purposes would be found to be within the 

district’s pre-existing authority under the constitution and statutes, and thus within the 

contemplation of the easement grantor, even where the easement was granted prior to the 

adoption of Senate Bill 586. Again, however, if particular environmental measures are 

found not to be within the authorization given by article XVI, section 59, an easement 

acquired with tax or tax bond funds could not in any case be used for such purpose. 

p. 2344 
The Honorable Mike Driscoll - Page 11 (DM-420) 

SUMMARY 

The Harris County Flood Control District may not use tax or tax 

bond funds for recreational and environmental measures described in 

Senate Bill 586, Act of May 21, 1993, 73d Leg., R.S., ch. 409, 5 1, 

1993 Tex. Gen. Laws 1711, 171 l-12, if the measures are not within 

the purposes of such a district as set out in article XVI, section 59 of 

the Texas Constitution, even if the district has an election purporting 

to authorize such expenditures. Recreational purposes under Senate 

Bill 586 are less likely to be found within the constitutionrd purpose 

of the district while environmental measures under the bill are more 

likely to be so found. A measure that is contrary to the purposes of 

the article XVI, section 59 or is solely recreational in purpose is not a 

permissible use of tax or tax bond funds. The Harris County 

Commissioners Court, the governing body of the district, should 

make the requisite factual determinations at least in the first instance. 

Whether an easement held by the district may be used for Senate 

Bill 586 purposes depends ultimately on the contemplation of the 

parties at the time of granting. Easements acquired with tax or tax 

bond funds may not, however, be used for recreational or 

environmental purposes not within the constitutional authorization 

for the district in article XVI, section 59. 

DAN MORALES 

Attorney General of Texas 

JORGE VEGA 

Fist Assistant Attorney General 

SARAH J. SHIRLEY 

Chair, Opinion Committee 

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