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 aresponsibility 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 ofstudying and investigating the archeological and historical sites in aparticular reservoir prior to their inundation and destruction? Your questions have been prompted because archeological andhistorical 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 bythe Water Development Board. In connection with your questions General Counsel for the Board has asked a related question, viz. :

3)“Is apolitical subdivision which has been otherwise authorized to construct a dam required as a condition ofimpoundment to obtain apermit from the Texas Antiquities Committee if the impoundment will cover archeological sites? ”

p. 1162The 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 ofthe Water Development Board about which you are primarily concerned. The purpose ofthe Texas Antiquities Code, Article 6145-9, Vernon’s Texas Civil Statutes, is clearly set out in $2which provides:

“It is hereby declared to be the public policy and in the public interest ofthe 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 ofthe lands in the State of Texas.
. . .I’ Section 6ofthe Antiquities Code provides:

“Sec. 6. All
. , , sites, objects, buildings, artifacts, implements, and locations ofhistorical, archeological, scientific, or educational interest

. . . that 

### are located in, on or under the surface of any lands belonging tothe State ofTexas or byany county, city, or political subdivision ofthe state are hereby declared to be State Archeological Landmarks and are the sole property ofthe State of Texas and all such sites or items located on private lands within the State ofTexas 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 apermit from, or in violation ofthe terms ofsuch permit of, the Antiquities Committee. I’ (emphasis added) Section LOprovides:

“Sec. 10. The Antiquities Committee shall be authorized toissue permits to other state agencies 

### or

p. 1163The 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 ofthe State ofTexas.
. . . No person, firm, or corporation shall conduct any such operations onany State Archeological Landmark herein described without first obtaining and having inhis or its possession such permit at the site of such operation, or conduct such operations in violation ofthe provisions of such permit. ” (emphasis added) Section 17provides:

“Sec. 17. Any person violating any of the provisions of this Act shall be guilty ofa misdemeanor, and upon conviction shall be punished byafine ofnot less than Fifty Dollars ($50.00) and not more than One Thousand Dollars ($l,OOO.OO) or by confinement injail for not more than thirty (30) days, or byboth such fine and confinement. ” While the syntax used in 56ofthe Antiquities Code is somewhat unclear, we think it makes sense if read as follows:

“All
. . . sites, objects, buildings, artifacts, implements, and locations ofhistorical, archeological, scientific, or educational interest
. . . that are located in, on or under the surface ofany lands [owned by] the State ofTexas or by any county, city, or political subdivision of the state are hereby declared to be State Archeological Landmarks and are the sole property ofthe 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 apermit from, or i,nviolation ofthe terms ofsuch permit of, the Antiquities Committee. ”

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

Section 7ofthe Antiquities Code permits the designation of“State Archeological Landmarks” on private land, ifthe recordable, written consent ofthe owner has been obtained. Section 5ofthe 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 ofTexas, including its tidelands, submerged lands and the beds ofits rivers and the sea within thejurisdiction ofthe State of Texas
. . . are the sole property of the State of Texas and may not be taken, altered, damaged, destroyed, salvaged or excavated without acontract or permit ofthe Antiquities Committee. ” (emphasis added) The peculiar wording of $6 ofthe Antiquities Code has suggested to some that its “taken, altered, damaged, ” etc., clause applies only to those archeological landmarks found onprivate lands. Support for this proposition is claimed from the legislative failure to include “agency” within the 510command 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 toforbid unpermitted destruction or alteration ofsuch landmarks by government employees or officers, as well as by private persons. The Antiquities Committee is specifically authorized by $10ofthe Antiquities Code to issue permits to state agencies. Section 19ofthe Code authorizes and directs the chief administrative officers ofall state agencies to “cooperate and assist” in carrying out the intent ofthe Act. Such language, in this case, imports a mandatory duty. See 53 Tex. Jur. 2d Statutes 518. 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 55provisions regarding shipwrecks and treasure found on public lands that the “taken, altered, damaged” prohibitory language in 56was not meant to apply solely to landmarks found on private property. We do not think the Legislature intended toprohibit the destruction ofarcheological landmarks found in riverbeds, but exclude from such

p. 1165The 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, 56of the Antiquities Code requires that the permission oftheAntiquities Committee be obtained in the form ofa permit before any site ofhistorical or archeological interest located on public lands can bealtered, damaged, destroyed, etc. When a local political subdivision plans to construct a reservoir which possibly will have a destructive impact onarcheological and historical sites in the area to be inundated, it is required by 56to obtain a permit before it proceeds. We need not now review the.standards to be followed bythe Antiquities Committee when exercising its permit power. Turning now tothe responsibility ofthe Water Development Board, we note that it is in a position quite different from that ofalocal subdivision constructing a reservoir. The Water Development Board was created byArticle 3, s49c, ofthe Texas Constitution and is authorized to sell bonds to establish the Texas Water Development Fund which “shall be used only for the purpose ofaiding or making funds available upon such terms and conditions as the Legislature may prescribe, tothe various political subdivisions or bodies politicand corporate ofthe State of Texas
. . . .I’ Statutory provisions dealing with the duties and powers ofthe Board are found in,6 511.00et seq. ofthe Water Code, V. T. C.S. Under these provisions the Board’s primary duty is to investigate the feasibility ofwater projects proposed by local political subdivisions and, if it approves them, to loan the subdivision the funds necessary for the project out ofthe Texas Water Development Fund. The Water Development Board does not itself engage in the actual construction ofwater projects. Since the Board itself is not engaged in any construction, itwould not be required by 86ofthe Antiquities Code to obtain apermit when aproject it intends tofund might have an impact 

### on archeological or historical sites. Instead the permit would have to be obtained bythe local political unit actually doing the construction.

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

While the Water Development Board is not subject to the 56permit requirement, it is not without responsibility in this regard. Although primary responsibility for accomplishment ofthe Antiquities Code’s purpose is given tothe Antiquities Committee, 519does state:

“The chief administrative officers ofall state agencies are authorized and directed to cooperate and assist the Antiquities Committee and the Attorney General in carrying out the intent ofthis Act. ” The intent oftheAct is expressly stated in 52to be the location, preservation, and protection ofall sites or objects ofhistorical or archeological significance in, on, or under any ofthe lands in Texas. Thus, the Antiquities Code imposes onall state agencies amandatory obligation toassist the Antiquities Committee in locating, protecting, and preserving Texas’ historical and archeological resources. But nowhere in it does it specify the nature and degree ofassistance necessary in order to satisfy this obligation. The effect ofthe Code’s silence on this matter is to vest considerable discretion in the chief administrative officer of each state agency as to the extent ofassistance which will be offered the Antiquities Committee. And of course each agency chief ’s exercise ofthis discretion is strictly limited by the terms ofthe 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 toassist the Antiquities Committee in locating, protecting, and preserving archeological and historical resources that might bedestroyed 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. 1167The Honorable Fred Wendorf, page 7 (H-250)

they were appropriated. Whether any particular act ofassistance 

### can be undertaken by the Board without abusing its discretion or overrunning its authority will have to be determined on acase-by-case basis. See Article 5421q, V.T. C.S. For example, 511.062 ofthe Water Code, Vernon’s Texas Codes Annotated, authorizes the Board’s staff to study and investigate the state’s water resources in order todetermine. the most suitable locations for future water facilities including reservoir.sites and to make estimates of the cost ofsuch facilities. Item 26ofthe Board’s appropriations for fiscal 1974and 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 toassist 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 apart ofthe cost ofconstructing a reservoir, and the Board should be aware of the total cost ofthe facilities for the construction ofwhich it provides funds. SUMMARY Section 6of the Antiquities Code requires a permit from the Antiquities Committee tobe obtained before any historical or archeological resources located on public lands can be altered, damaged, destroyed, etc.

p. 1168The 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 toassist 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 bya 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