409 

AUSTIS 3x1. ?rexA& 

June 13, 1951 

Hon. H. A. Beckwith, Chairman 

Board of Water Engineers 

Austin, Texas Opinion No.V-1189 

Re: Authority of Interstate 

Compact Commissioner to 

compact with respect to 

Dear Sir: use of water. 

Your request for an opinion reads as follows: 

"We respectfully request an opinion 

as to the meaning of the word 'use' as 

same appears in the Canadian, Red and Sablne Rivers Compact Authorization Act 

(Acts of the 51st Legislature, 1949, Chapter 380, Page 716). Section 1 of the Act 

reads as follows: 

"'Section 1. The Governor of 

this State shall, with the advice 

and consent of the Senate, appoint 

some qualified person Interstate 

Compact Commissioner to represent 

the State of Texas in Conferences 

with duly appointed Compact CommIsslone& for other affected States, 

and a representative of the government of the United States appointed 

by the President for such purpose, 

"The same language 'use, control and 

disposition1 1s contained In the authorlzatlon act creating a Compact Commlssloner for 

Texas as to the Pecos River Compact. (See 

Acts 49th Legjslature, 1945, Chapter 159, 

Pages 206-207~) 
41.0 , 

Hon. H. A. Be&with - Page 2 -v-1189 

“We desire to know whether a Compact Commissloner can lawfully compact 

so as to place limitations upon the lnternal beneficial use of waters apportioned to Texas, or whether his authority la limited to obtaining the 

equitable share of phxslcal amount of 

the waters due Texas. 

Standing alone, the language of the Act 

in question la broad enough to authorize negotiation 

and agreement by the Interstate Compact Commissioner 

respecting Internal use of water. It must be presumed, however, that the Legislature intended to grant 

authority only to the extent which It could legally 

do so, - in short, that the authority conferred extended only to constitutional means of accomplishment. 

Compacts between States do not become blndlng until adopted by the Legislatures of the States 

with the consent of Congress. U.S. Const., Art. I, 

Sec. 10, par.3. Since a compact to become effective 

must be enacted into law, It would seem that the language of the act appointing a compact commissioner Is 

relatively unimportant since hls acts have no force 

until ratified by the Legislature, in which event any 

excess of authority is cured by ratification. This 

practical aapect,of the problem is persuasive of the 

fact that the Legislature will qrdlnarily Intend to 

confer upon compact commissioners the same authority 

whfch it would have to make agreement6 covering the 

same subject matter. Unless a contrary intent clearly appears, the act should be so construed. In our 

opinion, the language of the Acts in question must 

be construed as granting to the Commlaeionera authority to make agreements to the same extent as the 

Legislature could respecting the use, control, and 

disposition of the waters of the Pecos, Canadian, Red, 

and Sabine Rivers. But in no event do the Acts grant 

authority in excess of leglelatlve authority, and in 

all events the.negotlatlons and agreements of the Commissioners are of no effect until and unless approved 

by the Legislature. 

Just as In the case of any legislative act, 

the only reatrlctlon with respect to legislative authority to enact compacts must be found In the State 

and Federal Constitutions. State ex rel. Baird v. 
Hon. H. A. Be&with - Page 3 - V-1189 

Joslin, 227 Pac.543 (Kan. Sup.1924); La Plats River 

& Cherry Ditch Co. v. Hlnderlider, 25 P.2d 187 (cola. 

Sup. 19331 iState ex rel.Dyer v.Slms,71 s.ct.557 (1951). 

Your question has been generally stated 

without reference to any particular llmltatlon upon use. Therefore, our reply must likewise be general. Insofar as a compact may place unconstltuMona1 llmltatlona upon the Internal beneficial use 

of water. It must fall. Each llmitatlon must be 

separately construed~wlth this In mind. A llmltatlon In Itself 1~ not Invalid. Hlnderllder v. 

La Plata River & Cherry Creek Ditch Co., 304 U.S. 

92 (1938), reversing 70 P.2d 849 (Colo. Sup.1937). 

It may be stated as a general proposition 

In settling controversies between States, whether 

through compact or by decision of the United States 

Suoreme Court. that the orfmarv ob.lect is to secure 

an equitable apportlonmeht of kater between the 

States. Kansas v. Colorado, 206 U.S.46 (1907); 

Hlnderllder v. La Plata River (k Cherry Greek Ditch 

In arriving at this apportionment, It 

~~tb~%?~id by Justice Holmes In New Jersey 

New York, 283 U.S.336, 343 (1931), that "the dliferent 

traditions and practices In different parts of the 

country may leah to varying results but the effort always is to secure an equitable apportionment without 

quibbling over formulas." To arrive at equitable apportionment, If It Is necessary or desirable to compact with reference to Internal beneficial use of 

water, such an agreement would be permissible so long 

as no constitutional provisions are violated. For example, If equitable apportionment la arrived at under 

a formula placing restrictions upon storage capacity, 

a provision which fixes the amount of allowable storage 

within a state by restricting storage to certain uses 

would be a means of arriving at equitable apportlonment under the formula and would be valid If within 

constitutional limits. 

SUMMARY 

The Texas Compact Commissioner 

has authority to compact with respect 

to Internal beneficial use of water 
412 

Hon. H. A. Be&with - Page 4 - V-1189 

so long as his agreements are wlthin constitutional limits. HIS agreements are not binding In any event 

unless and until approved by the 

Legislature. 

Yours very truly 

PRICE DANIEL 

Attorney General 

APPROVED: 

Jesse P. Luton, Jr. 

Reviewing Assistant 

Charles D. Mathews 

First Assistant 

HDP:bt