AUSTIN. ?pRCXAt+ 'BEb~ll 

September 20, 1973 

The Honorable Clayton T. Garrison 

Executive Director 

Texas Parks & Wildlife Department 

John H. Reagan Building 

Austin, Texas 78701 

Opinion No. H- 109 

Re: Authority of Parks and 

Wildlife Department to 

contract with utility or 

water districts for serDear Mr. Garrison: vices to state park 

You have requested an opinion as to whether the Parks and Wildlife 

Department (hereafter “the Department”) may contract with a utility district 

and water authority for utility service to a state park if the contract requires 

the Department to make initial service connection payments to defray costs 

incurred in providing the service. 

It is proposed that Pirates’ Cove Municipal Utility District would 

furnish sewage treatment facilities to the park. The so-called service 

connection payment would include the cost of a portion of the proposed sewage 

treatment plant, materials for additional ,line constru+ion, increased line 

size, and other, unspecified expenses involved in furnishing sewage treatment 

to the park for five years. The Department also proposes to provide half of 

the salary of an employee of the District over that period plus a monthly payment for actual sewage treatment. The.alternative to this arrangement would 

require the Department to build its own sewage treatment plant on park property and incur the full expense and responsibility for its maintenance, at a 

considerably greater initial capita,1 outlay. The difference in cost to the 

Department is less significant, however, over the entire period of five years. 

It is proposed that the Galveston County Water Authority would furnish 

water. Evidently it would prefer to construct a transmission line not only 

to service the state park but also other customers. The Department would 

bear solely that portion of construction expense which represents the park’s 

percentage of use. The alternative is for the Authority to provide a line only 

large enough to service the park. The cost to the Department would be the same. 

p. 522 
The Honorable Clayton T. Garrison, page 2 (H-109) 

The District and Authority must extend their water and sewage lines 

over six miles of private property before reaching the park’s boundary in 

order to furnish the above-described service. 

Galveston Island State Park, with which this request is connected, 

was created in 1970 under the auspices of Article 608lr, V. T. C. S. (See 

also, H. C.R. No. 72, 62nd Leg., p. 4012, eff. 1971). Section 2 of the 

statute empowers the Department “to develop, operate, and maintain outdoor areas and facilities of the state and to acquire land, waters, and 

interests in land and waters for such areas and facilities. ” 

Section 1 provides: 

“The Parks and Wildlife Department is hereby 

authorized and directed to cooperate with the proper 

departments of the Federa,l Government and with all 

other departments of the state and local governments 

including as part of a state plan water districts, river 

authorities, and special districts in outdoor recreation 

in the enforcement and administration of the provisions 

of the Federal Acts and any Amendments thereto . . . . 

It is the intent of the Legislature to add to the purposes, 

functions and duties of river authorities and water districts or other political subdivisions organized under 

Article III, Section 52, or Article XVI, Section 59, of 

the Constitution of Texas, and counties, to acquire lands 

for public recreation purposes, to construct thereon 

facilities for public use, to provide for the operation, 

maintenance and supervision of such public recreation 

areas, and to enter into agreements with other local, 

state or Federal Agencies for planning, construction, 

maintenance, and operation of such facilities, together 

with necessary access roads thereto, and to maintain 

adequate sanitary standards on the land and water areas 

as a part of and adjacent to such recreation areas. ” 

P_ 523 
The Honorab~le Clayton T. Garrison, page 3 (H-109) 

Galveston County Water Authority and Pirates’ Cove Municipal 

Utility District are organized under and pursuant to the provisions of 

5 59 of Article 16 as conservation and reclamation districts. Articles 

8280-318 and 8280-339, V. T. C.S. As such, they are deemed to be 

“government agencies and bodies politic and corporate with such powers 

of government and with the authority to exercise such rights, privileges 

and functions concerning the subject matter of this amendment as may be 

conferred by law.” Article 16 $ 59(b), Texas Constitution. 

Section 59(a) of Article 16 declares the enumerated functions of 

these districts to be “public rights and duties” which include “the control, 

storing, preservation and,distribution of (the State’s) storm and flood 

waters, the waters of its rivers and streams, for irrigation, power and 

all other useful purposes . . . .I’ 

Clearly, then, the statutory mandate to establish and maintain such 

places as Galveston Island State Park through interagency cooperation is 

a broad one, and districts such as the municipal utility district and water 

authority involved here are constitutionally authorized to contract with the 

Department to furnish the public functions which the Department desires to 

utilize. 

But any proposed contract between the Department and Pirates’, Cove 

Municipal Utility District or the Galveston County Water Authority must 

still be scrutinized, in the context of Article 3 § 51 of the Texas Constitution, 

which states: 

“The Legislature shall have no power to make 

any grant or authorize the making of any grant of public 

moneys to any individual, association of individuals, 

municipal or other corporations.whatsoever; . . . .‘I 

The prohibition requires a “quid pro quo ” for any agreement necessitating the expenditure of state funds. Byrd v. City of Dallas, 6 S. W. 2d 738 

(Tex. 1928); Friedman v. American Surety Co. of New York, (51 S. W. 2d 570 

(Tex. 1941); Barrington v. Cokinos, 338 S. W. 2d 133 (Tex. 1960). We are not 

p. 524 
The Honorable Clayton T. Garrison, page 4 (H-109) 

in a position to examine the financial desirability of the agreements in 

question, but, apparently, the Department conceives them to be the more 

desirable of the alternatives. 

The Department proposes to pay only that percentage of the cost 

which represents the increased burden on the Authority and Utility District 

as a result of the services contracted for, whether for pipeline, plant 

construction, or manpower, plus the monthly fee for actual services provided. We see no reason to doubt that this would result in a mutually 

satisfactory exchange of consideration. 

The Texas courts have consistently held that the stricture of Article 3 

§ 51 against gratuitous grants is satisfied when money is appropriated for a 

valid pub,lic purpose. Bullock v. Calvert, 480 S. W. 2d 367 (Tex. 1972); 

State v. City of Austin, 331 S. W. 2d 737 (Tex. 1960); Barrington v. Cokinos, 

338 S. W. 2d 133 (Tex. 1960); Jefferson County v. Board of Co~unty. and District 

Road Indebtedness, 182 S. W. 2d 908 (Tex. 1944); Road Dist No. 4, Shelby 

County v. Allred,. 68 S. W. 2d ,164 (Tex. 1934). 

The agreements in question would undoubtedly serve to accomplish the 

public purpose delineated by the Legislature in 5 1 of Article 608lr, V. T. C. S. , 

in creating a cooperative effort between the Department and local districts 

for the maintenance of an outdoor recreational facility. And, in so doing, the 

Water Authority and Municipal Utility District would be performing functions 

allocated to themby Article 16 5 59 of the Texas Constitution. 

They become, in effect, agents of the State to provide services which it 

is the duty of the State to provide. Any incidental benefit which accrues to a 

corp,orate body does not render the State’s expenditure invalid if the primary 

purpose of the appropriation is a public one. State v. City of Austin, supra; 

Barrington v. Cokinos, supra; Jefferson County v. Board of County and District 

Road Indebtedness, supra; City of Aransas Pass v. Keelin& 247 S. W. 818 (Tex. 

1923). 

Still, the problem of ownershipand control remains. By the proposed 

arrangements, the State will expend funds for the construction of a plant and 

pipeline it will not own and for the employment of personnel it will not control. 

p. 525 
The Honorable Clayton T. Garrison, page 5 (H-109) 

Legislative appropriations of funds for employees have been upheld if the 

funds are deemed “wages” or compensation rather than gratuities, and a 

public purpose is being served. Direct control of these employees by the 

State does not appear to be constitutionally relevant. Friedman v. American 

Surety Company of New York, 151 S. W. 2d 570 (Tex. 1941); Byrd v. City of 

Dallas, 6 S. W. 2d 738 (Tex. 1928). 

Attorney General Opinion No. C-511 (1965) dea~lt with a similar question 

involving a legislative authorization for a grant of funds by the Texas Aeronautics Commission to a city for the purpose of construction, repair or 

improvement of its airport. It was determined that the prohibitions of Article 

3 5 51 would not apply if the city, rather than a private citizen, acquired 

ownership in the airstrip to be renovated, given the valid public purpose of 

the grant. 

The proposed improvements of Galveston Island State Park would always 

be owned and controlled by the Water Authority and Utility District which are 

recipients of state funds not un.like the city in Opinion C-511. Thus, the public 

is continually being served. 

Attorney General Opinion No. M-32 (1967) states that a grant of state 

funds to a municipality or interstate agency for the construction of waste 

collection, treatment and disposal facilities for water quality control purposes, 

through the Texas Water Quality Board, would not be in violation of Article 3 

5 51. The above facilities wou,ld, no doubt, be owned and managed by the individual agency or municipality rather than the State and incidentally benefit the 

local area involved. The furtherance of a statewide recreational program 

through interagency cooperation via Article 6081r, V. T. C. S., is analogous. 

Legislative control would be maintained over these districts. Their 

administrators are either appointed or elected, insuring that public rather 

than private interests will be served, in accordance with the thrust of Article 3 . 

5 51. Texas Pharmaceutical Association v. Dooley. 90 S. W. 2d 328 (Tex. Civ. 

App+, Austin, 1936, no writ); Articles 8280-318 and 8280-339, V. T. C.S. 

The authorities we have cited deal with the constitutionality of outright 

grants rather than agreements based upon mutual consideration. Moreover, 

districts created under Artic,le 16 !j 59 have been deemed to be “political subdivisions” distinct from municipal corporations in that they perform “work 

denominated public rights and duties defined by the Constitution. ” Willacy 

County Water Control and Improvement District No. 1 v. Abendroth, 177 S. W. 

p. 526 
. . _ 

The Honorable Clayton T. Garrison, page 6 (H-109) 

2d 936 (Tex. 1944); Banker v. Jefferson County Water Control and Improvement District No. 1, 277 S. W. 2d 130 (Tex. Civ.App., Beaumont, 1955, ref’d, 

n. r. e.); Harris County Water Control and Improvement District NC. 58 v. 

City of Houston, 357 S. W. 2d 789 (Tex. Civ.App., Houston, 1962, ref’d., 

n.r.e.). 

It appears doubtful, therefore, that any incidental benefit derived by 

the districts in question, relating to services provided to facilities other than 

the state park, wou,ld be sufficient to place these agreements in violation of 

Article 3 $ 51. 

In view, then, of the mutual exchange of consideration involved, the 

clearly authorized public purpose of and benefit from the agreements, the 

sanction for local agencies to perform public duties, and the special, public 

nature of services rendered by districts created under Article 16 $ 59, the 

Parks and Wildlife Department has the authority to enter into the contracts 

in question. 

SUMMARY 

The Parks and Wild,life Department may contract 

with districts created under $ 59 of Article 16 of the 

Constitution for the furnishing of water and sewage services and may pay a proportionate share of the cost ,of 

new faciCities without violating 5 51 of Article 3 of the 

Constitution. 

ry truly yours, 

Attorney General of Texas 

DAVID M. KENDALL, Chairman 

Opinion Committee 

P. 527