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## ATITORNES GENERAL UDP %-EXAS

Rep. John Allen, Chairman Conservationand Reclamation Committee House of Representatives State Capitol Austin, Texas 78711 OpinionNo. M-346
Re: Effect of H.B. No. 170, (vestingTexasWater Development Board with eminent domain powers), on existingwater authoriDear Sir: ties or districts.

Your opinion request states that the Conservationand Reclamation Committee,Rouse of Representatives,of the Texas Legislature, has before it House Bill No. 170, by Clayton, which reads aa follows:
"ABILL TO BE ENTITLED

AN ACT vesting the TexasWater DevelopmentBoard 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 (Article8280-9,Vernon's Texas Civil Statutes); and declaring an emergency. BE IT ENACTED BY THE LEGISLATUREOF 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), .lsamended by adding a

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Subsection (e) to read as follows: "(e) The Texas Water Development Eoardmay exercise the full powers of eminent domain. The powers are to be exercised in accordancewith the provisionsof Title 52, Revised Civil Statutes of Texas, 1925, as amended. The Attorney General of the State of Texas shall represent the board in courtproceedings conductedpurusant to theprovisions of Title 52, Revised Civil Statutes of Texas, 1925, as amended." Sec. 2. The Importanceof this legislationand the crowded conditionof the calendars in both houses create an emergency and an imperativepublic necessity that the ConstitutionalRule requiringbills to be read on three s,everal days In each house be suspended,and this Rule Is hereby suspended, and that this Act take effectand 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 existingwater authoritiesand/or districts."

The proposedHouse Bill No. 170 would add a Subsection (e) to the present Article 8280- The structureof the other four 94) Vernon's Civil Statutes. Subsectionsof Article 8280-9,V.C.S. is important. Subsection (a)defines themembership of the Texas Water DevelopmentBoard. Subsection (b) describes the Roard's duties in formulating 'a comprehensive State Water Plan" which, when "formallyadopted" by the Board "shallbe a flexibleguide 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 DevelopmentBoard with the powers of eminent domain to Implement and carry out all of the broad powers granted In the present statute for themaking and executionof 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 Legislaturehas conferred such right by statutory enactment. Rrazos River Conservation& Reclamation District v. Harmon, 17e e .d 2 1,

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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 thePate case, the Supreme

"The languageused by the Legislature may be accorded a fullmeaning 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 termsas well adsits spirit and purpose."
Statutes providing for creationof water Improvement districts and water control and Improvementdistricts,by the CommissionersCourt 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 Legislaturehave 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 condemnationas 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 condemnationpowers may be exercised and emphasizes the fact that the Legislature can authorize condemnationof property that has already been taken for a DUblic use. It is not necessary that there be sDeclfic statutoryauthorization,but it may be implied from a general grant of the power of eminent domain. Ft. Worth & R.Q,R. Co. v. SouthwesternTel. & 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-conferringa general grant of power of eminent domain In House Bill No. 170, when fairly read within the four corners of the laws regulatingTexas Water Development Board, would lmplledly empower that Board in Its acquisitions to implement the Texar q Water Plan to override local district condemnationpowers, subject only tomoney 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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of the power of eminent domain, the Texas Water Development Board cannot legally Impair contracturalobligations of conservationdistrictswithoutmaking adequate compensation to the affected districts.
SUMMARY

The enactmentof House Bill No. 170 as proposedwould, in fact, make local acquisitions by water improvementdistricts or water control and improvementdistricts in the exercise of eminent domain subordinate to those exercisedby the State Water DevelopmentBoard.

V& truly yours,

ey General of Texas

Prepared by Roger Tyler AssistantAttorney oeneral
APPROVED: OPINION COMMITTEE
Kerns Taylor, Chairman George Kelton, Vice-Chairman John Grace Sally Phillips John Banks CharlesAycock

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