### 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 ofParks and

Wildlife Department to contract with utility or water districts for serDear Mr. Garrison: vices to state park
You have requested an opinion as towhether 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.
Itis 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 ofa portion ofthe 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 ofan employee oftheDistrict 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 onpark 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 offive years. Itis 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 butalso 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. 

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

The District and Authority must extend their water and sewage lines over six miles ofprivate 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 ofArticle 608lr, V. T. C.S. (See also, H. C.R. No. 72, 62nd Leg., p. 4012, eff. 1971). Section 2ofthe **statute** empowers the Department “to develop, operate, and maintain outdoor areas and facilities ofthe state and to acquire land, waters, and interests in land and waters for such areas and facilities. ”
Section 1provides:

“The Parks and Wildlife Department is hereby authorized and directed to cooperate with the proper departments ofthe Federa,l Government and with all other departments ofthe state and local governments including as part ofa state plan water districts, river authorities, and special districts in outdoor recreation in the enforcement and administration ofthe provisions ofthe Federal Acts and any Amendments thereto

. . .. Itis the intent ofthe Legislature to add tothe 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 tomaintain adequate sanitary standards onthe land and water areas as a part ofand adjacent to such recreation areas. ”

P_ 523The 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 559 ofArticle 16as 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) ofArticle 16declares 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 ofits 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 andwater 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 ofArticle 3 §51ofthe Texas Constitution, which states: “The Legislature shall have no power to make

any grant or authorize the making ofany grant of public moneys to any individual, association ofindividuals, 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, 6S.W. 2d 738 (Tex. 1928); Friedman v. American Surety Co. of New York, (51S.W. 2d570 (Tex. 1941); Barrington v. Cokinos, 338 S.W. 2d 133 (Tex. 1960). We are not

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

in a position to examine the financial desirability ofthe agreements in question, but, apparently, the Department conceives them to be the more desirable ofthe alternatives.
The Department proposes to pay only that percentage ofthe 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 amutually satisfactory exchange ofconsideration.
The Texas courts have consistently held that the stricture ofArticle 3 §51against 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 ofAustin, 331S.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, 182S.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 51ofArticle 608lr, V. T. C.S., in creating a cooperative effort between the Department and local districts for the maintenance ofan outdoor recreational facility. And, in so doing, the Water Authority and Municipal Utility District would be performing functions allocated tothemby Article 16559 ofthe Texas Constitution. They become, in effect, agents ofthe State to provide services which it is the duty ofthe State to provide. Any incidental benefit which accrues to a corp,orate body does not render theState’s expenditure invalid if the primary purpose ofthe appropriation is apublic one. State v. City ofAustin, supra; Barrington v. Cokinos, supra; Jefferson County v. Board of County and District Road Indebtedness, supra; City ofAransas 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 aplant and pipeline itwill not own and for the employment of personnel it will not control.

p. 525The Honorable Clayton T. Garrison, page 5 (H-109) Legislative appropriations offunds 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 ofthese employees by the State does not appear to be constitutionally relevant. Friedman v. American **Surety** Company of New York, 151S.W. 2d 570 (Tex. 1941); Byrd v. City of Dallas, 6S.W. 2d 738 (Tex. 1928). Attorney General Opinion No. C-511 (1965) dea~ltwith a similar question involving a legislative authorization for a grant offunds by the Texas Aeronautics Commission to a city for the purpose of construction, repair or improvement ofits airport. Itwas determined that the prohibitions ofArticle 3 551would not apply if the city, rather than a private citizen, acquired ownership inthe 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 whichare 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 ofwaste collection, treatment and disposal facilities for water quality control purposes, through the Texas Water Quality Board, would not bein violation ofArticle 3 551. 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 ofa 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 ofArticle 3

. 551. Texas Pharmaceutical Association v. Dooley. 90 S.W. 2d 328 (Tex. Civ. App+,Austin, 1936, nowrit); 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!j59 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. 1v. Abendroth, 177S.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. 58v. City of Houston, 357 S.W. 2d 789 (Tex. Civ.App., Houston, 1962, ref’d., n.r.e.).
Itappears doubtful, therefore, that any incidental benefit derived by the districts in question, relating to services provided to facilities other than the state park, wou,ldbe sufficient toplace these agreements in violation of Article 3 $51.
Inview, then, ofthe mutual exchange of consideration involved, the clearly authorized public purpose ofand 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 inquestion. SUMMARY
The Parks and Wild,life Department may contract with districts created under $59 ofArticle 16ofthe Constitution for the furnishing ofwater and sewage services and may pay a proportionate share ofthe cost ,of new faciCities without violating 551ofArticle 3ofthe Constitution.
ry truly yours,

Attorney General ofTexas

DAVID M. KENDALL, Chairman Opinion Committee

P. 527