THE 

## ATTOIWEYGENEEZAL QF TEXAS

AUSTIN. TEXAS **7SW11** DHAWP‘OHU c:. MAxrrlN

February 28, 

## 1967

Mr. Hugh C. Yantls OpinionNo. ~-32 Executive Secretary Te;zzrater PollutionControl Re: Constructionof Senate Bill 204 and House Bill 1100 West 49th Street 448 of the 60th LeglsAustin, Texas 

## 78756 lature, Identicalbills which would establish a Texas Water Quality Board as the successor to the Texas Water Dear Mr. Yantis: PollutlonControl Board.

In view of the provisionsof Section 51 of Article III of the Constitutionof Texas prohibitinggrants of public monies to any individual,associationof Individuals, municipal or other corporations,

you have asked the following questionsrelatln to the provisionsof Senate Bill 204 and House Bl.1~1 448 of the t0th Legislature (identical bills establlshlngthe Texas Water Quality Board) prescribingits powers, duties, functionsand procedures and providing for the establishmentof qualitywaters in the State and the control,preventionand abatement of pollution:

"(1) May a grant of State funds be made to a governmentalentity for constructionof waste collection,treatmentand disposal facllltles for water quality control purposes,as provided In the proposedTexas Water Quality Act? "(2) May a grant of State funds be made to a governmentalentity for the purpose of planning water quality controlprograms and facilities,as provided In the proposedAct? "(3) May a loan of State funds be made to a governmentalentity for the purposes of planning water quality control program! and facllltles,as provided In the proposedAct? Under the provisionsof Section 11 of the proposedAct, the Board is authorizedto make grants to any munlcipalltyor

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Interstateagency 'as such terms,aredefined In the FederalWater PollutionCcntrol Act (33 USC 466, et seq.) or to any local government for the constructionof necessary treatmentworks and necessary sewer and sewerage systems, treatment systems and disposal systems. The Board is further authorizedto make grants or Interest-free loans to certain planning agencies (governmental agencies) for developingan effective comprehensive water quality control abatement plan. Thus, such grants or Interest-freeloans of State funds to planning agenciesare made for governmental purposes and are not made for any private purpose.

Section 51 of Article III of the Constitutionof Texas provides in part:

"The Legislatureshall have no power to make any grant or authorizethe making of any grant of public moneys to any Individual,association of individuals, municipal or other corporations whatsoever;

. . .'I
In construingthe above quoted provisions it was held In State V. city of Austin, 160 Tex. 348, 331 S.W.2d 737, 742 (1960):

'Here the Legislaturehas empoweredthe State Highway Commissionto construct Interstate and defense highways and to direct munlclpalltles and utility companiesto relocate their facilities. That grant of authority is conditioned, however, by the requirementthat the utilities be reimbursed for the expense which they incur. In our opinion this does not constitutethe release of an .obligation to the state within the meaning of Article III, Section 55, of the Constitution. See State ex rel. Jones v. CharitonDrainage DistrictNo. 1, 252 MO. 345, 158 S.W. 633. "Article6674w-4 obviouslydoes not involvea gift or loan of the credit of the state unless It can be said that payment of relocationcosts amounts to a grant 07 public money in violationof Article

, Section 51. The purpose of this section and of Article XVI Section 6, of the Constitution1s to prevent the'appllcatlon. of public funds to private purposes; in other words,, to prevent the gratuitous grant of such funds to any individualor corporation whatsoever. -- 6W.2d 738.

See Byrd.v. city of Dallas, 118 Tex. 28, Statutesanalogous to House Bill 179 have been upheld against this or similar constitutional

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attacks by the appellate.courts,,of at least five other jurisdictions.

. . .

the C&-<utlon Thus, a grant of State funds to a political subdlvlslon of the State for governmental use of such money is not prohibited by the provisions of Section 51 of Article III of of Texas'norany other provision of our'stateConstltutlon. Bexar County v. Linden, 110 Tex. 339, 220 S.W. 761 1920); Road.Dlsm **0.** Shelby County **V.** Allred, 123 Tex. 77, a s.w.2a lb4 (1934) ;. Jeffeison County v. Board of County and DistrictRoad Indebtedness, 143 T 99 182 S W 2d 908 l79-44) city 112 T:;: 334, 247 i.;. 818 (1923).; of Aransas Pass v. Keeling,

. In Bexar County v. Linden, supra, the Court stated In construingSection 31 of Article m of the Constitutionof Texas:

"The giving away of public money, its application to other than strictlygovernmental purposes, is wfiat the provision Is intended to guard against.
In Road DistrictNo. 4, Shelby County v. Allred, supra, the Court at page lb9 held In construingSection 51 of Article III of the Constitutionof Texas:

“It Is the settled law of this state that the above-quotedconstitutional provision is lntended to guard against and prohibit the granting or giving away of public money except for strictly governmentalpurposes. The prohibition Is an absolute one, except as to the class exempted therefrom, and operates to prohibit the Legislaturefrom making gratuitousdonations to all kinds of corporations, private or public, municipal or’polltlcal. Bexar County v. Linden, 110 Tex. 339, 220 S.W. 761. It is clear from the above that a road ‘district is a corporationwithin the meaning of the above-quoted constitutional

provision.
“It Is also the settled law of this state that the above-quotedconstitutional provisiondoes not prevent the appropriationor granting of state funds to municipal and political corporations when the money Is granted to be used for a governmentalpurpose. Bexar County v. Linden, 110 Tex. 339, 220 S;W. 761; City of Aransas Pass v. Keeling, Attorney General, 112 Tex. 339, 247 S.W. ala, 819.
"It cannot be doubted that the effect of section 12 of the special law under consideration here

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Mr. Hugh C. Yantis, page 4 (M-32)

has effect to make a donation of state funds to the road district. If this donation is a mere gratuity, It Is prohibitedby section 51 of article 3, supra. On the other hand, If the donation Is made and granted to the road district for a governmentalpurpose, it is not a gratuity and not prohibitedby such constitutional provision. Bexar County v. Linden, supra; City of Ara$sas Pass v, Keeling, Attorney General, supra. . . . In view of the foregoing,you are advised that the Legislaturemay authorize the grant or the loan of State funds to be made to a governmentalentity for constructionof waste collection,treatmentand disposal facilitiesfor water qualIt> controlpurposes,and planningwater quality controlprograms and facilitiesas provided in Senate Bill 204 and House Bill 448 of the 60th Legislature.
SUMMARY The Legislature

may authorize the grant or the loan of State funds to be made to a governmental entity for constructionof waste collection, treatment and disposal facilitiesfor water quality control purposes, and planningwater quality control programs and facilitiesas provided In Senate Bill 204 and House Bill 448 of>he 60th Legislature.

Preparedby John Reeves AssistantAttorney General
APPROVED: OPINION COMMITTEE Hawthorne Phillips,Chairman W. V. Geppert, Co-Chairman Kerns Taylor Pat Bailey Roger Tyler Malcolm Quick
STAFF LEGAL ASSISTANT A. J. Carubbl, Jr.

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