Mr. Joe Carter

Executive Secretary Opinion No. WW-506
Texas Water Development Board 'Re:May the Texas Water DevelopAustin 1, Texas ment Board lawfully give financial,~assistance to a political subdivision for the constructionof a water filtrationor water treatment plant when such plant constitutes an integral part of the entire water Dear Sir: project?

You have requested the opinion of the AtiXXhey General on the matter of whether theYTexasWater Development Board may legally loan funds to a water.control ana improvementdistrict for the purpose of the construction of a water treatment plant

. . . "when such plant constitutes an integralpart of the entire project.*

We understand that,a district seeks a loan of State funds under applicable law so that it may construct a waterworks system designed to take rawwater from Lake Travis, render it potable by filtrationand aistribute':it to the consumers of the district.

No problem is involved relative to the authority of a water control and improvement!districtto do that which it seeks t0 do. Article 700048, V.C.S.

The voters of the State on November 5, 1957, authorized an Amendment to the Constitutionknown as Section 49-c of Article III. Briefly, the amendment authorizes the sale of State Bonds to provide an initial fund of $lOO,OOO,bOO.OOto be used to assist named public corporationsof the State in the conservation and development of the water resources of Texas.14r. Joe Carter, page 2 (WW-506)

The portion of the Amendment applicable to this opinion follows:"Such fund shallbe used only for the purpose of

aiding or making funds availableupon such,~terms and conditions as the Legislaturemay prescribe, to the various political-subdivisionsor bodies politic and corporate of the State of Texas including river authorities,~conservation~~andreclamation districts created or organized or authorized to be created or organized under Article XVI, Section 59, or Article III, Section 52, of this Constitution, interstatecompact commissions to which-the State of Texas is a party and municipal corporations,. ink..the conservation and develop- ,mentof the water resources of this State,, including the control, storing and preservation of its.storm and floodwaters and the waters of its rivers and streams, for all useful and lawful purposesby the acquieition, improvement, extension,~ 01~construction of dams, reservoirs'and.otherwater storage, projects, including~any system necessary for'the transportation.of;w&terfrom,storage to points of treatment and/or distribution, including facilities for transportingWaterstherefrom to wholesale pur**chasers,** or **for** any one or more of such>purposes or **methods.** I* Chapter 425, Acts 55th ,Legislature, R.S.,,,1957

(Article 8280-9,V.C.S.) is the enabling act for the Amendment. Therein the Legi.slature

defines the.word "project" as I

. . . any engineeringundertaking or work for the purpose of the,conservationand developmentof the surfacewater resources of the State of Texas, including the control, storing ana preservation of its storm and floodwaters and the waters of its rivers and streams for+,all useful and lawfulpurposes by the acquisition, improvement,~exteneion or constructionof dams,. reservoirs and other water etorageprojects, filtrationand water treatment plants including any system necessaryMr. Joe Carter, page 3 (WW-506)

for the.transportationpofwater'.from storage to points of 'distr~ibutiomo~ or from storage to filtration.and treatmantphnts~,..bncluaing facilities for.transporting~watartherefrom to~wholesale~purohasers, or fat any 0ne:or more of..such

purpos,e~s,:

or methods.u (Underscoring **ours,)** .'
The Legislature.deeme'd,thae Amendment broad enough to include the construetion,of;filtration.andwater'treatment plants as a par'tof a,systemtthatconserves and developssthe water res6urces of the State,'

The enablingsactwas.~‘anticipatory It was approvedby 'theLegislatureJune 6',.'1957. The proposed amendmentknown as ~,'H.J.R.

NO. 3~#

Acts 55th.Legislature,.ra.s.,..1957, was,approvedby the s'ame

Legislatur8'on~~June~~~6~,~l957~ The legal effect,of,.;t~e.lggBsBative interpretation is assayed in Collinqsworth, 120 Tex. 473, 40 S.W. 2a 13, 16:

*Contemporaneous-~legislative ,interpretation of a constitutional~,provisiowieuniversally held to be entitled'toweight D e aa In,Coreic~a~Co.tton.MilBo.~v, Sh=pard,/l23 Tex, 352, 71 S.W. 2d 247, 251, the Courticautions:, ..:"A legislative act Which iS in conflict **With** the Constitution is .stillbornand af no force or effect - impotent alike to confer rights or to afford protection," Consequently.we are.bound to,considerwhether there is conflict between the enabling.legislationand the organic law.

"The fundamentalpurpose in construing a constitu,tional

provision~is to ascertain aa give effect to the intent,of,the framers and of the people **who** adopted it,? ~ollfngsworth County v. Allred, 120 Tg~.,473~,.4O S-W, 262

13,~15.Mr. Joe Carter, page 4 (WW-506)

*Generally it may be raid that in determining the meaning, intent,:aAapurpose of a law or constitutionalproviaion,..,the history of the timee out of which ,it~ grew,,"and

to which it

.may be rationally eupp+red tobear taome direct relationship, 

### the .evile

### intendedtobe remedied, and the good to be~~accompliehed, are proper oubjecte of inquiry.~~'~ Travelere"Inr. Co. v. Warshall, 124 Tex. 45, 76 8.W. 28 1007, 1012; 96 ALRo2. The hisQorica1 background enveloping the framing aAd enactment of the AmendmeAt~is,a.:harsh.one reflecting as it doee the longest drouth in the.recordedhistory of the State. Deginning in 1951 ana continuing ,intoApril -'Way,.1957 the year8 of drouth were dieartrous,.;bitter alike to rural and metropolitan areas. They were year8 

### of physical and economic stresswell calculated to implant iA:tbe~miAdof those exposed to its rigoAs that water aAd the water.reaourceeof the Statewere asset6 to be **COAseNed** aAd developed. It was **in.** the finalyear of **drouth** that the electore 

### of the ,State:Votedthe AmendmAt into the ConstitutioA.

The question irr wheth&r.a filtrationplant coAotitutiAg *an integralpart of the entirewater project* ie within the spirit tttta

scope **of** the AmendmeAt?
When the'AmeAdmentwaSdrafted and at the time it wae voted upon, there exiated Texa8',law on the treatment of water **aAd** the purity thereof. Tho8e .whodrafted the Amendment were bound 

### tohave 

### had cognicance:'thereof;~thoee who voted it into law are chargeablewith knowledge thereof.

Article 4477-1,uv.c.s.,,.provide8t

". "Section 12(a). Dveryperron, firm, corporation,

public,or private, contemplating the eEtablif#hmeAt of any drinkingwater!aupply.y~.
. **for** public use shall, previous to the construction thereof, submit completed plans Ma rpecificationstherefor to the’ ,StateDepartment of 

### HealthaAd the gala Department, shall approve 8amelprovided maid plans conform to. ...

or. Joe Carter, page 5 (WW-506)

the water safety
. . . laws of this State. The said water supply
. . . system shall be establishedonly after approval+hasbeeA givenby the State DepartmeAt of Health.* Article 44186, V.C.S.,* confers certain rule making powers **on** the Commie8ioAer of.Health. Section C 4.00 of the *Rules and RegulationsCovering the Preparation, Submission and Approval **of** Plans and Specifications **for** Water Supply Systems and Acceptable Operating **Practices,** Texas State Department of Health* providear

"Allwater Secured **from** surface source8 of supply shall

### be given complete treatment at ;I a plaAt which provide8 faCilitie8 for COAtinuous coagulatioA,~aedimentatioA,filtration through acceptablemedia, covered clear well storage.aAdcontinuous disinfectionof the water with chlorine gas or suitable chlorine compounds.* Article 4477-1, Section 13 (f) gives the above rule the teeth of law in that:

"Nowater from~any~aurfacepublic drinking water supply shallbe made accessible or delivered to any consumer for drinkiAg purposes unless it hae first received treatment essential to rendering it safe forhuman COAsumption. **All** treatmentplants IAClUdiAg aeration, coagulation,mixing, settling filtration, and chlorinatingunits shallbe of such size and type as may be prescribedby good public health engineeringpractices.* Article 7471,V.C.S., contains a declarationof policy relative'the appropriationof the public waters of the State. The number one **aAd** highest priority granted is for YIomestic and MUAiCipal uses, IAClUdiAg **Water** for **8UStaining** human life and the life of domestic animals.*. .

w. Joe Carter, page 6 (WW-506)

'ThXtfact is that surfacewater, as available in Nature, may be so colored, turbid,hard or contaminated as to be unfit for either **domestic or**  industrialuse. See "WaterworksHandbook* by Flinn,Weston and: Pogert,:and~"WaterWorks Practice," a manual issuedby the American Water Works Association.

By a series of processes:genericallydesignated as water treatment the raw water may be;restored to a,conditionof usefulness. Filtration is one,such process. See authoritiesnwt above. Here, for convenience,z,iwe will paraphrase Section 49-c of Article III, Constitution,.of T-as: The fund may be used only for the purpose of aiding in a designatedmanner~the named public corporations in the~conservationand,development of the State's.waterresourceswhich shall include the control, storing and preservation of waters derived from storms, floods,.,rivers and streamsby the acquisition, improvement, extension, or constructionof aams,,,reservoirs and other waterst6rage:projects *Bincludinq any systemnecessarv-forthe transportationof water from storage tonoints of treatment and/ or distribution,~.including~facilities for transporting water,therefrom towholesale purchasers, or 

### for anyyone~:or **morer,~of**such+purposesor methods.- (Emphasis:aaaea) The underscoredportionfirst~above~might'be construed to mean that the fund,could'be,,used toassist in,the construction of a system to convey~water‘~;from,~storage.~ a point of treatment, ana, therefrom to ,wholesale.:purchasers. That construction of the Amendmentwould+preclude.;theuse of the fUAd to assist in any manner withthe:construction of a treatment ,,' plant.

to meet purpose The purpose promptingrthe~iamendment was a bold attempt the water problems **of** the State aAd that legitimate should not be defeated,ihinderedor frittered away by narrow or technical construction.,,,.Aransas County v. ColemanFulton Pasture Co., 108 Tex.,~223,:191 S.W. 5530 Imperial~Irrigation Co. v. Jayne, 104 Te%,.395,,;138 S.W. 575..-:.

Mr. Joe Carter, page 7 (WW-506)

It is our opinion~that a fair interpretationof the language, spirit and intent of,the Amendment would be that the construction of a treatmentplant was included. Certainly it can be said that if it was the intent of the framer8 to expressly exclude.,such plants. much ha8 been left to chance. Matter8 of.such importance should not be.read out of the obviouslybroad.scope of the Amendment on the Strength Of SUCh a AebUlOUS iAdiCatiOAOf negative intent.

*It is a proper inquiry.
. . in ascertainingwhether 'a,certaininterpretation shouldbe given to the language of the Constitution, to considerwhether its framers aAd the voters,by whom'it was adopted intended the consequenceswhich must follow such interpretatioAlm KOY.V. Schneider, 110 Tex. 369, 218 S.W. 479, 481.
Some practical VonsequencesH **of** the exclusion of treatmentplants are these. The State 00uia assist,a city or town in developing a water.eource~but: could notaid it in rendering such water fit foruse by treating it in compliance with the laws sponsoredand enforced.by the assisting sovereignty. Also, the aeeistance~ is in the nature of loans that must be repaid. If the water can.not be use&it can not-be Sold and thereby earn~the~~income necessary to repay the loan from the State. Further,,,a city **or** town with an existinq treatment plant could avail itselfiof the benefits of the Amendment; whereas, a muAicipality thathad no plant and could not finance the constructionof one without SUCh~~aSSiStaACe as is contemplated by the Amendment;.wouldbe,,as,a practical matter, denied the benefit of stored water because it lacked treatment facilities. We do not believe that,such inequitiesbetween municipalities similarly situatedwere intendedby either,the framers of the Amendment or those who voted it **into** being.

*When a statute is plainand unambiguous inits terms and not susceptibleof mre than one construction, courte'iare not,,coAcerned

with the consequences that may result therefrom,but must enforce the law as they find it. But when a statute is ambiguous in Ifs terms **o.r** susceptible-5

fir. Joe Carter, page 8 (WW-506)

of two constructions, then the evil results and hardships which may follow one constructionmay be properly consideredby the.oourt, and it is right that the court shallcplaceuponthe statute that interpretationof which it is faftly susceptible,which will ,attainthe just solution of the questions:involvedand protect the rights of all parties." Oriental Hotel Co. v. Griffiths, 88 Tex. 574, 33,S.W. 652, 53 Am. St. Rep. 790, 30 LRA 765. Generally speaking, rules of~statutory construction are equally applicable to~,the.~.construction~of a Constitution. Badger v. Hoidale 1C.C.A.,,88th,, 88 F. (2d);208,109 ALR 798,ii Am. Jur., Sec. 49, pa 658.

Therefore,.because,ofthe reasonsheretofore set out it is the opinion of the Attorney General that the Texas Water Development Board may.,lawfully grant financial assistance to a political subdivision,otherwise qualifying,~,for the purpose of constructing a water filtration ,plant.whensuch project constitutes an integralpart of the entire~waterproject.

However, it is not,.our,~intent, ~nordo we hold, that under the provisions of Section 49-c,.~Article III,.Constitution of Texas, the fund may be used,inithe.constructionof water treatmentplants alone,,not a necessary part of a system,but as an independentor exclusive~undertaking.
SUMMARY The Texas Water Development Roard may lawfully grant financial nssistance to a.;politicalsubdivision, otherwise qualifying, for the purpose of constructing a water filtrationplant when such project constitutes an integralpart of the entirewater project.

,p...
.Mr. Joe Carter, page 9 (WW-506)

Yours very truly,

GW-e

APPROVED8
OPINION COMMITTEE
Geo. **P.** Blackburn, Chabman L. P. Lollar c. **K,** Richards J. C. Davis, Jr, Arthur Sandlin
REVIEWED FOR THE ATTORNEY GENERAL =8 W. V. Geppert