THE 

### Amro NEY GENERAL OP TEXAS

Honorable Bill Clayton, Chairman House Interim Committee to Study Conservation of Soil andWater Resources House of Representatives Austin, Texas Opinion NO.c-363 Re: Whether the Legislature mayauthorize the Water Development Board to extend loans to political subdivisions of the~State for conserving anddeveloping underground water 01'mayguarantee bond lssues of political subdlvlsions of the State Issued to provide funds for use In developing and conservDear Mr. Clayton: ing underground waters. Wequote your recent request for an opinion of this office in toto.

"TheHouseInterim Committee to Study the Conservation of Soil andWater Resources has been requested to consider proposing legislation to extend the uses to which moneyin the water development fund may be put, under Section kg-c, Article III, Constitution of the State of Texas. Several proposals have been madeto the committee; amongthemare 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 andretail distribution point;
treat the water from the underground supply andprovide a retail distribution system for It; develop underground storage facilities for water.

“The committee would appreciate having from you an opinion onwhether or not it would be constitutional for the legislature to provide that moneyin the water development fund maybe used for any of those purposes. I’ Theconstitutional provision autherizing the Texas Water Development Fundand setting forth the urposes for which it maybe used is Article III, Sect&a gg-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 makingfunds avallable upon such terms and conditions as the Legislature mayprescribe, to the various political subdivisions or bodies politic andcorporate of the State of Texas including river authorities, conservation and reclamation districts anddistricts 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 aparty andHonorable Bill Clayton, page 3 (C-363)

municipal corporations, in the conservation anddevelopment of the water resources of this State, including the control, storing andpreservation of its storm andflood waters andthe 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, andperha syou question, second, whether Article III, Section ty-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. Wewould first call your attention to the fact that Article III, Sect%on 49-c, does speciffcally authorize the Legislature to appropriate or makethe water development fund available to districts organized under Article XVI, Section 59 of the Constftution of Texas to be used In the conservation anddevelopment 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 makingfunds avaflable qe Dto Dil

. various political subdivisions or bodfea pol%t%c and corporate anddistricts created or organized-or authorfzed to be-created or organized under Article XVI, Sect%on 59 n
. oof this Constitution

. D

. in the conservation andHonorable 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) Theconservation anddevelopment of all the natural resources of this State,

. . 0andthe preservation andconservation of all such natural resources of the State are each andall hereby declared public rights andduties; andthe Legislature shall pass all such laws as maybe appropriate thereto, "(b) There maybe created within the State of Texas or the State maybe divided into, such numberof conservation and reclamation districts as maybe determined to be essential to the accomplfshment of the purposes of this amendmentto the Constitution, which districts shall be governmental agencies andbodies politic and corporate

. , . ." Included amongthe 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 bypurchase or otherwise underground water rights. Article 7881 reads in part: In this respect

"There maybe 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

. Oreservoirs, wells, O, Ofor domestfc andcommercial purposes as contemplated by Section 59{, Article XVIof 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 andright to acquire water rights andprivileges in anywaythat anylndividual or corporation mayacquire same, andto hold the sameeither bygift, purchase, devise, appropriation or otherwise. No enumeration of specific powers herein shall be held a limitation uponthe general powers conferred by this chapter, unless distinctly so expressed." In the case of Ptacek v. Hofheinz, 

### 128S.W.2d 

### 872 (Tex. Civ.App. 1939, error ref.), it washeld 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 avote of the electorate reads in part: "Sec. 

### 2. Theforegoing amendmentto the Constitution shall be submitted to avote of the qualifie~d electors of this State at anelection to be held onthe 5th day of November, 1957, samebeing 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 amendmentto the Constitution of Texas adding a newsection to be knowna8 Section 49-c of Article III, authorizing the issuance and sale of TwoHundredMillion Dollars ($200,000,000) in bonds bythe State of Texas to create the Texas Water Development Fundto provide financial assistance to certain political subdivisions or bodies politic andcar orate o 'in the conservation a

~-+!FiFClo~rnIj~~ oStra~~e"~aT~~a resources of the State. "'AGAINSTthe amendmentto the Constitution of Texas adding anewsection to be knownas Section 49-c of Article III, authorizing theHonorable Bill Clayton, page 

### 6 (C-363)

issuance and sale of TwoHundredMillion Dollars (200,000,000) in bonds bythe State of Texas to create the Texas WaterDevelopment Fundto provide financial assistance to certain political subdivisions or bodies politic andcorporate of the State of Texas in the conservation anddevelopment of the water resources of the State."' (Emphasis Added) Thephrase “in the conservation anddevelopment of the water resources of the State" surely includes subterranean or underground water. It is said in 12Tex.Jur.2d 369, Constitutional Law, Section 24:

.Although the intention of the framers is of someimportance, the real question is what did the people intend by adopting a constitution framed in language submitted to them?" In Smissen v. State, 

### 71Tex, 222, 9S.W. 112 (1888) the court said onpage llb of 9S.W.:

1,

. . .The proceedings of a convention may be looked to in construing a clause of a constitution framed by it, whenit 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, whatdid the people in%= by adopting a constitution framed in language submitted to them?.

. ." (Emphasis Added) Certainly the electors of the S%atewhenthey read the ballot for voting on the constitutional amendmentin 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 whenit voted onthe legislative resolution uponwhich Article III, Section 49-c was based, hadageneral knowledge of the types of districts formed under Article XVI, Section 59of the Constitution, since that Article hadbeen interpreted byboth our judiciary whenit decided the case of Ptacek v. Hofheinz andour Legislature whenit passed Articles 

### 7881,V.C.S. through 7959a. Certainly it wasthe intent of the electorate that water development funds might beused to aid fresh water supply districts which utilime subterranean waters for their source of supply. Andcertainly it wasthe intent of the electorateHonorable Bill Clay~ton, page 

### 7 (C-363)

of this State that whenso authorized bythe Legislature such fresh water supply districts could utilize the water development fund for the purposes for which they were legally created. Since the electorate hadcertain knowledge that it wasauthorizing the fresh water supply districts to utilize (at legislative authorization) the water development fund for the purposes enumerated in Articles 

### 7881through 7959, weconclude 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, weare 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 bythe 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 atreatment andretail distribution point;(4) treating the water from the underground supply andproviding a retail distribution system for it; (5) developing underground storage facilities for water. Article III, Section 50of the Constitution of Texas prohibits the Legislature of the State of Texas from lending the credit of the State in aid of anymunicipal corporation in anymannerwhatsoever or in pledging the credit of the State in anymannerwhatsoever for the payment of liabilities present or prospective of anymunicipal corporation. Wefind nowording in Article III, Section 49-c of the Constitution which could be construed as a negation of Article III, Section 50of the Constitution. It is quite evident from the wording of Article III, Section 49-c, that the electorate intended that there be created amaximumfund 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, weare 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 TheLegislature mayauthorize the Water Development Board to extend loans to political subdivisions fop conserving anddeveloping underground water. TheLegislature maynot authorize the Water Development Board to guarantee bond issues of political subdivisfons, the funds of which are to be used in developing andconserving underground waters. Yours very truly, WAGGONER

CARR Attorney General of Texas

1t Richardson AssiiZant MR”gm APPROVED: OPINIONCOMMITTEE W,V. Gepper%, Chairman Linward Shivers WayneRodgers Arthur Samilfn RoyJohnson APPROVRD

FORTREATTORNEY

GENERAL BY: Stanton Stone