THE Amro NEY GENERAL 

OP TEXAS 

Honorable Bill Clayton, Chairman 

House Interim Committee to Study 

Conservation of Soil and Water 

Resources 

House of Representatives 

Austin, Texas 

Opinion NO. c-363 

Re: Whether the Legislature 

may authorize the Water 

Development Board to extend loans to political 

subdivisions of the~State 

for conserving and developing underground water 

01' may guarantee bond lssues of political subdlvlsions of the State Issued 

to provide funds for use 

In developing and conservDear Mr. Clayton: ing underground waters. 

We quote your recent request for an opinion of this 

office in toto. 

"The House Interim Committee to Study 

the Conservation of Soil and Water Resources 

has been requested to consider proposing 

legislation to extend the uses to which 

money in the water development fund may 

be put, under Section kg-c, Article III, 

Constitution of the State of Texas. Several 

proposals have been made to the committee; 

among them are proposals to allow the Texas 

Water Development Board to extend loans to 

uarantee bond Issues of) political sub- 

-1719- 
Honorable Bill Clayton, page 2 (C-363) 

“(1) 

“(2) 

“(3) 

“(4) 

“(5) 

purchase water rights in underground water; 

drill water wells; 

provide transportation for the 

underground water from the well 

to a treatment and retail distribution point; 

treat the water from the underground supply and provide a retail distribution system for It; 

develop underground storage 

facilities for water. 

“The committee would appreciate having 

from you an opinion on whether or not it 

would be constitutional for the legislature 

to provide that money in the water development fund may be used for any of those 

purposes. I’ 

The constitutional provision autherizing the Texas 

Water Development Fund and setting forth the urposes for 

which it may be used is Article III, Sect&a g g-c, Goaatitution of Texas, It provides In that part pertinent to 

your question as follows: 

“Such fund shall be used only for the 

purpose of aiding or making funds avallable upon such terms and conditions as the 

Legislature may prescribe, to the various 

political subdivisions or bodies politic 

and corporate of the State of Texas including river authorities, conservation and 

reclamation districts and districts created 

or organized or authorized to be created or 

organized under Article XVI, Section 59 or 

Article III, Section 52, of this Constitution, interstate cempact commlsslons to 

which the State of Texas Is a party and 
Honorable Bill Clayton, page 3 (C-363) 

municipal corporations, in the conservation 

and development of the water resources of 

this State, including the control, storing 

and preservation of its storm and flood 

waters and the waters of its rfvers and 

streams, for all useful and lawful purposes 

by the acqufsition, improvement, extension 

or construction of dams, reservoirs and 

other water storage projects, including any 

system necessary for the transportation of 

water from storage to points of treatment 

and/or distributfon, includfng facilities 

for transportfng water therefrom to wholesale purchasers, or for any one or more of 

such purposes or methods." 

Perhaps you ask these questions because, first, you 

feel that since Article III, Section 49-c, fails to 

specifically mention underground water that the water 

development fund might not be used for the five purposes 

enumerated above in your request, and perha s you question, second, whether Article III, Section t y-c, authorlzes the Legislature to extend the credit of the State 

to political subdivisions of the State in view of Article 

III, Section 50 of the Constitutfon of Texas. 

We would first call your attention to the fact that 

Article III, Sect%on 49-c, does speciffcally authorize the 

Legislature to appropriate or make the water development 

fund available to districts organized under Article XVI, 

Section 59 of the Constftution of Texas to be used In the 

conservation and development of the water resources of 

this State for useful and lawful purposes. 

Article III, Section 49-c, reads: 

In this respect 

"Such fund shall be used only for the 

purpose of aiding or making funds avaflable q e D to D il . various political subdivisions or bodfea pol%t%c and corporate 

and districts created or organized-or authorfzed to be-created or organized 

under Article XVI, Sect%on 59 n . o of this 

Constitution . D . in the conservation and 
Honorable Bill Clayton, page 4 (C-363) 

development of the water resources of this 

State . . , for all useful and lawful purposes . . . .' 

Directing your attention to Article XVI, Section 59, 

you will note that it reads In part: 

"(a) The conservation and development 

of all the natural resources of this State, 

. . 0 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 such 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 accomplfshment of 

the purposes of this amendment to the 

Constitution, which districts shall be 

governmental agencies and bodies politic 

and corporate . , . ." 

Included among the types of districts that the Leglslature Is authorized to organize under Article XVI, Section 

59, are fresh water supply distrfcts as provided for under 

Article 7881, et seq., VernonIs Civfl Statutes. Artfcles 

7881 et seq. clearly authorize the creation of such districts for the purpose of conserving, transportfng and 

distributing fresh water from wells and reservoirs for 

domestic and commercial purposes. Articles 7881 et seq. 

likewise authorize such districts to acquire by purchase 

or otherwise underground water rights. 

Article 7881 reads in part: 

In this respect 

"There may be created within this 

State conservation districts to be known 

as fresh water supply districts for the 

purpose of conserving, transporting and 

distributing fresh water from D . O reservoirs, wells, O , O for domestfc and commercial purposes as contemplated by Section 59{, Article XVI of the State Constitution. 
- 

Honorable Bill Clayton, page 5 (C-363) 

Article 7917, V.C.S., reads in part: 

"All such districts shall have full 

authority and right to acquire water rights 

and privileges in any way that any lndividual or corporation may acquire same, and to 

hold the same either by gift, purchase, devise, appropriation or otherwise. No enumeration of specific powers herein shall be held 

a limitation upon the general powers conferred 

by this chapter, unless distinctly so expressed." 

In the case of Ptacek v. Hofheinz, 128 S.W.2d 872 (Tex. 

Civ.App. 1939, error ref.), it was held that fresh water 

supply districts which utilize subterranean waters for their 

source of supply might be organized under Article XVI, 

Section 59 of the Texas Constitution. 

Further, the resolution (H.J.R. No. 3, Acts 55th Leg. 

R.S. 1957, p. 1636) authorizing the submission of Article 

III, Section 49-c to a vote of the electorate reads in 

part: 

"Sec. 2. The foregoing amendment to the 

Constitution shall be submitted to a vote of the 

qualifie~d electors of this State at an election 

to be held on the 5th day of November, 1957, 

same being the 1st Tuesday after the 1st Monday 

in aaid November, 1957, at which election each 

ballot shall have printed thereon, the following 

words: 

"'FOR the amendment to the Constitution of 

Texas adding a new section to be known a8 Section 

49-c of Article III, authorizing the issuance and 

sale of Two Hundred Million Dollars ($200,000,000) 

in bonds by the State of Texas to create the Texas 

Water Development Fund to provide financial assistance to certain political subdivisions or 

bodies politic and car orate o 

'in the conservation ~-+!FiFClo~rnIj~~ a oStra~~e"~aT~~a 

resources of the State. 

"'AGAINST the amendment to the Constitution 

of Texas adding a new section to be known as 

Section 49-c of Article III, authorizing the 
Honorable Bill Clayton, page 6 (C-363) 

issuance and sale of Two Hundred Million Dollars 

(200,000,000) in bonds by the State of Texas to 

create the Texas Water Development Fund to provide financial assistance to certain political 

subdivisions or bodies politic and corporate of 

the State of Texas in the conservation and development of the water resources of the State."' 

(Emphasis Added) 

The phrase “in the conservation and development of the 

water resources of the State" surely includes subterranean 

or underground water. It is said in 12 Tex.Jur.2d 369, 

Constitutional Law, Section 24: 

.Although the intention of the framers 

is of some importance, the real question is what 

did the people intend by adopting a constitution 

framed in language submitted to them?" 

In Smissen v. State, 71 Tex, 222, 9 S.W. 112 (1888) the 

court said on page llb of 9 S.W.: 

1, 

. . .The proceedings of a convention may 

be looked to in construing a clause of a constitution framed by it, when it is of doubtful 

construction; but such evidence is of but little 

weight, for the intention of the framers of a 

constitution is of but little importance, --the 

real question being, what did the people in%= 

by adopting a constitution framed in language 

submitted to them?. . ." (Emphasis Added) 

Certainly the electors of the S%ate when they read the 

ballot for voting on the constitutional amendment in question 

would believe the funds for which they were voting might be 

used to develop underground waters. Most certainly the 

electorate of the State of Texas when it voted on the legislative resolution upon which Article III, Section 49-c was 

based, had a general knowledge of the types of districts 

formed under Article XVI, Section 59 of the Constitution, 

since that Article had been interpreted by both our judiciary 

when it decided the case of Ptacek v. Hofheinz and our Legislature when it passed Articles 7881, V.C.S. through 7959a. 

Certainly it was the intent of the electorate that water 

development funds might be used to aid fresh water supply 

districts which utilime subterranean waters for their source 

of supply. And certainly it was the intent of the electorate 
Honorable Bill Clay~ton, page 7 (C-363) 

of this State that when so authorized by the Legislature 

such fresh water supply districts could utilize the water 

development fund for the purposes for which they were 

legally created. 

Since the electorate had certain knowledge that it 

was authorizing the fresh water supply districts to utilize 

(at legislative authorization) the water development fund 

for the purposes enumerated in Articles 7881 through 7959, 

we conclude that it intended such fund might be used for 

similar purposes by other enumerated political subdivisions 

of the State (upon legislative authorization) if not otherwise prohibited by the Constitution. 

Therefore, we are of the opinion that Article III, 

Section 49-c authorizes the Legislature to provide that the 

water development board might extend loans of the water 

development fund to political subdivisions of the State which 

are not otherwise prohibited by the Constitution of Texas 

from engaging in such operations for the purposes of: 

(1) purchasing water rights in underground water; 

(2) drilling water wells; 

(3) providing transportation for the underground 

water from the well to a treatment and retail distribution 

point; 

(4) treating the water from the underground supply 

and providing a retail distribution system for it; 

(5) developing underground storage facilities for water. 

Article III, Section 50 of the Constitution of Texas prohibits the Legislature of the State of Texas from lending the 

credit of the State in aid of any municipal corporation in 

any manner whatsoever or in pledging the credit of the State 

in any manner whatsoever for the payment of liabilities 

present or prospective of any municipal corporation. We find 

no wording in Article III, Section 49-c of the Constitution 

which could be construed as a negation of Article III, Section 

50 of the Constitution. It is quite evident from the wording 

of Article III, Section 49-c, that the electorate intended 

that there be created a maximum fund of $200,000,000.00 

(Water Development Fund) which might be loaned to various 

political subdivisions for water development purposes but which 

should be paid back to the water development fund with interest. 

Therefore, we are of the opinion that the Water Development 

Board cannot guarantee bond issues of political subdivisions for 

the purposes enumerated in your opinion request. 
Honorable Bill Clayton, page 8 (c-363) 

SUMMARY 

The Legislature may authorize the Water 

Development Board to extend loans to political 

subdivisions fop conserving and developing underground water. The Legislature may not authorize 

the Water Development Board to guarantee bond 

issues of political subdivisfons, the funds of 

which are to be used in developing and conserving underground waters. 

Yours very truly, 

WAGGONER CARR 

Attorney General of Texas 

1t Richardson 

AssiiZant 

MR”gm 

APPROVED: 

OPINION COMMITTEE 

W, V. Gepper%, Chairman 

Linward Shivers 

Wayne Rodgers 

Arthur Samilfn 

Roy Johnson 

APPROVRD FOR TRE ATTORNEY GENERAL 

BY: Stanton Stone