E ATITORNES GENERAL 

UDP %-EXAS 

Rep. John Allen, Chairman 

Conservation and Reclamation 

Committee 

House of Representatives 

State Capitol 

Austin, Texas 78711 

Opinion No. M-346 

Re: Effect of H.B. No. 170, 

(vesting Texas Water 

Development Board with 

eminent domain powers), 

on existing water authoriDear Sir: ties or districts. 

Your opinion request states that the Conservation and 

Reclamation Committee, Rouse of Representatives, of the Texas 

Legislature, has before it House Bill No. 170, by Clayton, 

which reads aa follows: 

"A BILL TO BE ENTITLED 

AN ACT 

vesting the Texas Water Development Board 

with the powers of eminent domain; requiring the attorney general to represent the 

board In legal proceedings; amending Section 3, Chapter 425, Acts of the 55th 

Legislature, Regular Session, 1957, as 

amended (Article 8280-9, Vernon's Texas 

Civil Statutes); and declaring an emergency . 

BE IT ENACTED BY THE LEGISLATURE OF TRE STATE OF TEXAS: 

Section 1. Section 3, Chapter 425, Acts of the 55th Legislature, Regular Session, 1957, as amended by Section 2, Chapter 

297, Acts of the 59th Legislature, Regular Session, 1965 (Article 8280-9, Vernon's Texas Civil Statutes), .ls amended by adding a 

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Rep. John Allen, page 2(M-346) 

Subsection (e) to read as follows: 

"(e) The Texas Water Development Eoard may exercise the 

full powers of eminent domain. The powers are to be exercised in accordance with the provisions of Title 52, Revised 

Civil Statutes of Texas, 1925, as amended. The Attorney 

General of the State of Texas shall represent the board in 

court proceedings conducted purusant to the provisions of 

Title 52, Revised Civil Statutes of Texas, 1925, as amended." 

Sec. 2. The Importance of this legislation and the 

crowded condition of the calendars in both houses create an 

emergency and an imperative public necessity that the Constitutional Rule requiring bills to be read on three s,everal 

days In each house be suspended, and this Rule Is hereby suspended, and that this Act take effect and be in force from 

and after its passage, and it Is so enacted." 

Your Committee requests an opinion of the Attorney 

General as to "what effect this eminent domain portion of H.B. 

No. 170 would have on existing water authorities and/or districts." 

The proposed House Bill No. 170 would add a Subsection 

(e) to the present Article 8280- 

The structure of the other four 9 4) 

Vernon's Civil Statutes. 

Subsections of Article 

8280-9, V.C.S. is important. Subsection (a) defines the membership of the Texas Water Development Board. Subsection (b) 

describes the Roard's duties in formulating 'a comprehensive 

State Water Plan" which, when "formally adopted" by the Board 

"shall be a flexible guide to state policy for the development 

of water resources in this state". Subsection (c) commits 

planning duties to the Board. Subsection (d) transfers 

powers to the Roard. 

By adding the proposed Subsection (e) to Article 8280-9, 

Vernon's Civil Statutes, the Legislature would vest the Texas 

Water Development Board with the powers of eminent domain to 

Implement and carry out all of the broad powers granted In the 

present statute for the making and execution of the Texas 

Water Plan. 

Since eminent domain Is an attribute of sovereignty, 

neither a State agency nor its subdivisions can exercise such 

power unless the Legislature has conferred such right by 

statutory enactment. Rrazos River Conservation & Reclamation 

District v. Harmon, 17 e e . d 2 1, 

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Rep. John Allen, page 3 (M-346) 

ref. w.m.); Coastal States Qas Producing Co: v. Pate, 158 Tex. 

171, 809 S.W.2d 828 (1958). 

Court stated at page 831: 

In the Pate case, the Supreme 

"The language used by the Legislature 

may be accorded a full meaning that 

will carry out its manifest purpose 

and intention In enacting the statute, 

but the operation of the law will then 

be confined to cases which plainly 

fall within Its terms as well ads its 

spirit and purpose." 

Statutes providing for creation of water Improvement 

districts and water control and Improvement districts, by the 

Commissioners Court of a County or by the Texas Water Rights 

Commission, grant to all of such districts, the power of emlnent domain. Articles 7656, 7723, and 7880-126, V.C.S. Also, 

many districts specially created by the Legislature have the 

power to con&mnfor the purposes of the law. 

see Art. 8280-119, V.C.S.). 

(For example, 

None of these districts could 

exercise the power without express permission from the Legislature. Texas Law of Condemnation, by Madison Rayburn (1960), 

Chapter II-A, Sec. l3(2), pages 31-32. 

While there Is nothing on the face of House Bill No. 

170 which would repeal or destroy the right of a local dlstrict to exercise its powers of condemnation as granted by the 

Legislature, your attention is Invited to 22 Texas Jurisprudence 2d, Eminent Domain, Sec. 91-93, pages 151, et seq. Here 

the text discusses the extent condemnation powers may be exercised and emphasizes the fact that the Legislature can authorize condemnation of property that has already been taken for 

a DUblic use. It is not necessary that there be sDeclfic 

statutory authorization, but it may be implied from a general 

grant of the power of eminent domain. Ft. Worth & R.Q,R. Co. 

v. Southwestern Tel. & Tel. Co. 96 Tex. 160, 71 S W 270 (1903); 

22 Tex. Jur. 2d 152, Em. km.. Sec. 92. It would'appear then, 

that the provisions-conferring a general grant of power of 

eminent domain In House Bill No. 170, when fairly read within 

the four corners of the laws regulating Texas Water Development Board, would lmplledly empower that Board in Its acquisitions to implement the Texar qWater Plan to override local 

district condemnation powers, subject only to money appropriated by law or pursuant to certain funds created by the Constitution. It must be understood, however, that in the exercise 

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Rep. John Allen, page 4(M-346) 

of the power of eminent domain, the Texas Water Development 

Board cannot legally Impair contractural obligations of conservation districts without making adequate compensation to 

the affected districts. 

SUMMARY 

The enactment of House Bill No. 170 as 

proposed would, in fact, make local acquisitions by water improvement districts 

or water control and improvement districts 

in the exercise of eminent domain subordinate to those exercised by the State Water 

Development Board. 

V& truly yours, 

ey General of Texas 

Prepared by Roger Tyler 

Assistant Attorney oeneral 

APPROVED: 

OPINION COMMITTEE 

Kerns Taylor, Chairman 

George Kelton, Vice-Chairman 

John Grace 

Sally Phillips 

John Banks 

Charles Aycock 

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