March 1, 1974 

The Honorable Fred Wendorf 

Chairman 

Texas Antiquities Committee 

Box 12276, Capitol Station 

Austin, Texas 78711 

Dear Dr. Wendorf: 

Opinion No. H- 251~ 

Re: Responsibilities of Texas 

Water Development 

Board under Texas 

Antiquities Code 

You have requested our opinion on two questions: 

1)Does the Texas Antiquities Code impose upon the 

Texas Water Development Board a responsibility 

to study, investigate, salvage or otherwise ameliorate the destructive impact reservoir projects it is 

funding will have on the archeological and historic&l 

resources they will inundate? 

2)Does the current General Appropriations Act 

permit the Water Development Board to expend 

funds for the purpose of studying and investigating 

the archeological and historical sites in a particular 

reservoir prior to their inundation and destruction? 

Your questions have been prompted because archeological and historical sites have been located in an area where a Large reservoir is to be 

constructed by a local municipal water authority with funds to be loaned it 

by the Water Development Board. In connection with your questions General 

Counsel for the Board has asked a related question, viz. : 

3)“Is a political subdivision which has been otherwise 

authorized to construct a dam required as a condition 

of impoundment to obtain a permit from the Texas Antiquities Committee if the impoundment will cover archeological sites? ” 

p. 1162 
The Honorable Fred Wendorf, page 2 (H-250) 

We will first focus our attention on this third question because our 

answer to it will clarify the responsibilities of the Water Development 

Board about which you are primarily concerned. 

The purpose of the Texas Antiquities Code, Article 6145-9, Vernon’s 

Texas Civil Statutes, is clearly set out in $ 2 which provides: 

“It is hereby declared to be the public policy and in 

the public interest of the State of Texas to locate, 

protect, and preserve all sites, objects, buildings, 

pre-twentieth century shipwrecks, and locations of 

historical, archeological, educational, or scientific 

interest . . . in, on, or under any of the lands in 

the State of Texas. . . .I’ 

Section 6 of the Antiquities Code provides: 

“Sec. 6. All . , , sites, objects, buildings, 

artifacts, implements, and locations of historical, 

archeological, scientific, or educational interest 

. . . that are located in, on or under the surface of 

any lands belonging to the State of Texas or by any 

county, city, or political subdivision of the state are 

hereby declared to be State Archeological Landmarks 

and are the sole property of the State of Texas and all 

such sites or items located on private lands within the 

State of Texas in areas that have been designated as a 

‘State Archeological Landmark’ as hereinafter provided, 

may not be taken, altered, damaged, destroyed, salvaged, or excavated without a permit from, or in violation of the terms of such permit of, the Antiquities 

Committee. I’ (emphasis added) 

Section LO provides: 

“Sec. 10. The Antiquities Committee shall be 

authorized to issue permits to other state agencies or 

p. 1163 
The Honorable Fred Wendorf, page 3 (H-250) 

institutions and to qualified private institutions, 

companies, or individuals for the taking, salvaging, 

excavating, restoring, or the conducting of scientific or educational studies at, in, or on State 

Archeological Landmarks as in the opinion of the 

Antiquities Committee would be in the best interest 

of the State of Texas. . . . No person, firm, or 

corporation shall conduct any such operations on any 

State Archeological Landmark herein described without first obtaining and having in his or its possession 

such permit at the site of such operation, or conduct 

such operations in violation of the provisions of such 

permit. ” (emphasis added) 

Section 17 provides: 

“Sec. 17. Any person violating any of the provisions of this Act shall be guilty of a misdemeanor, 

and upon conviction shall be punished by a fine of not 

less than Fifty Dollars ($50.00) and not more than One 

Thousand Dollars ($l,OOO.OO) or by confinement in jail 

for not more than thirty (30) days, or by both such fine 

and confinement. ” 

While the syntax used in 5 6 of the Antiquities Code is somewhat 

unclear, we think it makes sense if read as follows: 

“All . . . sites, objects, buildings, artifacts, 

implements, and locations of historical, archeological, 

scientific, or educational interest . . . that are located 

in, on or under the surface of any lands [owned by] the 

State of Texas or by any county, city, or political subdivision of the state are hereby declared to be State 

Archeological Landmarks and are the sole property 

of the State of Texas and [no] such sites or items [including those] located on private lands. . . as hereafter provided, may . . . be taken, altered, damaged, 

destroyed, salvaged, or excavated without a permit 

from, or i,n violation of the terms of such permit of, 

the Antiquities Committee. ” 

p. 1164 
The Honorable Fred Wendorf, page 4 (H-250) 

Section 7 of the Antiquities Code permits the designation of “State 

Archeological Landmarks” on private land, if the recordable, written 

consent of the owner has been obtained. Section 5 of the Antiquities 

Code declares that all sunken or abandoned pre-twentieth century ships 

and wrecks of sea and all contents thereof and treasure imbedded in the 

earth “located in, on or under the surface of lands belonging to the 

State of Texas, including its tidelands, submerged lands and the beds 

of its rivers and the sea within the jurisdiction of the State of Texas . . . 

are the sole property of the State of Texas and may not be taken, altered, 

damaged, destroyed, salvaged or excavated without a contract or permit 

of the Antiquities Committee. ” (emphasis added) 

The peculiar wording of $6 of the Antiquities Code has suggested 

to some that its “taken, altered, damaged, ” etc., clause applies only 

to those archeological landmarks found on private lands. Support for 

this proposition is claimed from the legislative failure to include “agency” 

within the 5 10 command that “No person, firm, or corporation shall conduct any such operations. . . without first obtaining. . . such permit 

. . . . ” But we believe the Legislature intended to guard and protect 

archeological landmarks found on publicly owned property with the same 

vigor as those found on private land and that it intended to forbid unpermitted destruction or alteration of such landmarks by government employees or officers, as well as by private persons. 

The Antiquities Committee is specifically authorized by $10 of the 

Antiquities Code to issue permits to state agencies. Section 19 of the Code 

authorizes and directs the chief administrative officers of all state agencies to “cooperate and assist” in carrying out the intent of the Act. Such 

language, in this case, imports a mandatory duty. See 53 Tex. Jur. 2d 

Statutes 5 18. Compare Attorney General Opinions M-851 (1971), M-840 

(1971), M-688 (1970), M-394 (1969) and V-293 (1947). 

It is clear from the 5 5 provisions regarding shipwrecks and treasure 

found on public lands that the “taken, altered, damaged” prohibitory language in 5 6 was not meant to apply solely to landmarks found on private 

property. We do not think the Legislature intended to prohibit the destruction of archeological landmarks found in riverbeds, but exclude from such 

p. 1165 
The Honorable Fred Wendorf, page 5 (H-250) 

a prohibition those found on other public property, particularly when it 

specifically claimed them both as State property. 

In our opinion, then, 5 6 of the Antiquities Code requires that the 

permission of the Antiquities Committee be obtained in the form of a 

permit before any site of historical or archeological interest located 

on public lands can be altered, damaged, destroyed, etc. When a local 

political subdivision plans to construct a reservoir which possibly will 

have a destructive impact on archeological and historical sites in the 

area to be inundated, it is required by 5 6 to obtain a permit before it 

proceeds. We need not now review the. standards to be followed by the 

Antiquities Committee when exercising its permit power. 

Turning now to the responsibility of the Water Development Board, 

we note that it is in a position quite different from that of a local subdivision constructing a reservoir. The Water Development Board was created 

by Article 3, s49c, of the Texas Constitution and is authorized to sell bonds 

to establish the Texas Water Development Fund which “shall be used only 

for the purpose of aiding or making funds available upon such terms and 

conditions as the Legislature may prescribe, to the various political subdivisions or bodies politicand corporate of the State of Texas . . . .I’ 

Statutory provisions dealing with the duties and powers of the Board are 

found in,6 5 11.00 et seq. of the Water Code, V. T. C. S. Under these provisions the Board’s primary duty is to investigate the feasibility of water 

projects proposed by local political subdivisions and, if it approves them, 

to loan the subdivision the funds necessary for the project out of the Texas 

Water Development Fund. 

The Water Development Board does not itself engage in the actual 

construction of water projects. Since the Board itself is not engaged in 

any construction, it would not be required by 8 6 of the Antiquities Code to 

obtain a permit when a project it intends to fund might have an impact on 

archeological or historical sites. Instead the permit would have to be 

obtained by the local political unit actually doing the construction. 

p. 1166 
The Honorable Fred Wendorf, page 6 (H-250) 

While the Water Development Board is not subject to the 5 6 permit 

requirement, it is not without responsibility in this regard. Although 

primary responsibility for accomplishment of the Antiquities Code’s purpose is given to the Antiquities Committee, 5 19 does state: 

“The chief administrative officers of all state 

agencies are authorized and directed to cooperate 

and assist the Antiquities Committee and the Attorney 

General in carrying out the intent of this Act. ” 

The intent of the Act is expressly stated in 5 2 to be the location, preservation, and protection of all sites or objects of historical or archeological 

significance in, on, or under any of the lands in Texas. 

Thus, the Antiquities Code imposes on all state agencies a mandatory 

obligation to assist the Antiquities Committee in locating, protecting, and 

preserving Texas’ historical and archeological resources. But nowhere in 

it does it specify the nature and degree of assistance necessary in order to 

satisfy this obligation. 

The effect of the Code’s silence on this matter is to vest considerable 

discretion in the chief administrative officer of each state agency as to the 

extent of assistance which will be offered the Antiquities Committee. And 

of course each agency chief’s exercise of this discretion is strictly limited 

by the terms of the legislation creating his agency and by the provisions of 

the bills appropriating funds for its use. 

As a state agency, the Water Development Board does have a responsibility to assist the Antiquities Committee in locating, protecting, and 

preserving archeological and historical resources that might be destroyed 

by the reservoir projects it funds. But it is allowed considerable discretion 

in determining how to fulfill its responsibility to cooperate and assist, and, 

in exercising this discretion, it may neither exceed the authority granted in 

its enabling statute nor spend its funds for purposes other than that for which 

p. 1167 
The Honorable Fred Wendorf, page 7 (H-250) 

they were appropriated. Whether any particular act of assistance can 

be undertaken by the Board without abusing its discretion or overrunning 

its authority will have to be determined on a case-by-case basis. See 

Article 5421q, V. T. C. S. 

For example, 5 11.062 of the Water Code, Vernon’s Texas Codes 

Annotated, authorizes the Board’s staff to study and investigate the state’s 

water resources in order to determine. the most suitable locations for 

future water facilities including reservoir.sites and to make estimates of 

the cost of such facilities. Item 26 of the Board’s appropriations for fiscal 1974 and 1975 (General Appropriations Act, Acts 1973, 63rd Leg., ch. 

659, p. 1786, 2043) makes funds available for “Topographic mapping, 

water studies and investigations. ” A rider attached to this provision 

explains that: 

“Those funds allocated the Water Development 

Board under the appropriation for topographic mapping, water studies and investigations shall be used 

for. . . other studies and investigations by the State 

‘or in cooperation or by contract with other governmental agencies, institutions or non-governmental 

entities. . . . ‘I (p. 2046) 

These statutory provisions give the Water Development Board both 

the authority and wherewithal to assist the Antiquities Committee in locating 

and investigating historical objects, archeological sites, etc., which might 

be destroyed by the reservoirs it is funding. The expense incidental to 

avoiding destruction of such artifacts is actually a part of the cost of constructing a reservoir, and the Board should be aware of the total cost of the 

facilities for the construction of which it provides funds. 

SUMMARY 

Section 6 of the Antiquities Code requires a 

permit from the Antiquities Committee to be obtained 

before any historical or archeological resources located 

on public lands can be altered, damaged, destroyed, etc. 

p. 1168 
The Honorable Fred Wendorf, page 8 (H-2-50) 

While a local political subdivision planning to 

construct a reservoir which will affect historical or 

archeological resources must comply with the permit 

requirement, the Water Development Board need not 

since it only loans money for the project and does 

not engage in the actual construction. The Board 

does have a responsibility to assist the Antiquities 

Committee in locating, protecting and preserving 

historical and archeological resources, but it has a 

wide degree of discretion in determining how to meet 

this respohsibility. 

The Board has been provided with funds which 

can be used to study the antiquities which will ,be 

affected by a reservoir project it is funding, but it 

may not engage in salvaging operations. 

Very truly yours, 

Attorney General of Texas 

APPR VED: 

\.R 

T.Arb&Y\F. Y&K. First Assistant 

7 

DAVID M. KENDALL, Chairman 

Opinion Committee 

p. 1169