December 21, 1989
Honorable D.R. "Tom" Uher Opinion No. JM-1122
Chairman
Redistricting Committee Re: Authority of the Mata-
Texas House of Representatives gorda County-Palacios Sea-
P. 0. Box 2910 wall Commission to expend
Austin, Texas 78768-2910 funds to create a public
beach (RQ-1808)
Dear Mr. Uher:
You ask whether the Matagorda County-Palacios Seawall
Commission may legally expend funds '*for the purpose of
constructing or creating a public beach."
Section 421.021(a) of the Local Government Code pro-
vides:
The Commissioners Court of Matagorda
County and the governing body of a munici-
pality in the county may by resolution
establish a seawall commission to perform the
functions described by Article 6830, Revised
Statutes.
Section 421.023 of the Local Government Code provides
in subsections (a) and (b) for the imposition by the commis-
sion of a tax on real property within its jurisdiction.
Subsection (c) provides that "tax revenue may be used only
to finance functions of the commission." Subsection (f)
provides additionally that .Vhe commission may disburse
funds set aside by the municipality and the county for the
performance of its functions."
Subsection (g) of section 421.023, added in 1989, pro-
vides:
The commission may exercise any of the
authority granted to a county or municipality
under:
(1) Articles 6830, 6831, and 6832, Re-
vised Statutes:
p. 5895
;
Honorable D.R. "Tom" Uher - Page 2 (JM-1122)
(2) Article 6837, Revised Statutes:
and
(3) Sections 421.001(a) and (b).
Acts 1989, 71st Leg., ch. 329, § 3, eat 1296.
Article 6830, title 118, V.T.C.S., provides in relevant
part:
The county commissioners' court of all
counties, and the municipal authorities of
all cities, bordering on the coast of the
Gulf of Mexico, shall have the power and are
authorized from time to time to establish,
locate, erect, construct, extend, protect,
strengthen, maintain, and keep in repair and
otherwise improve any sea wall or breakwater,
levees, dikes, floodways and drainways, and
to improve, maintain and beautify any boule-
vard erected in connection with such sea wall
or breakwater, levees, dikes, floodways and
drainways, and to incur indebtedness there-
for . . . .
Article 6831 provides:
Said county commissioners' court, and munici-
pal authorities, shall have the power to
impose such additional uses and burdens upon
all streets, alleys, public highways and
other public grounds as they may deem
necessary for the location, erection,
construction and maintenance of seawalls,
breakwaters, levees, dikes, floodways and
drainways, and to license, regulate or grant
such additional uses of said seawalls,
breakwaters, levees, dikes, floodways or
drainways as will. not impair their effi-
ciency.
Article 6832 provides in relevant part:
Said counties and cities shall have the
power to take and appropriate such land and
other property as may be deemed necessary for
the establishment, location, construction and
maintenance of said seaways, breakwaters,
levees, dikes, floodways and drainways, and
to define the area of land needed, and to
P. 5896
Honorable D.R. "Tom" Uher - Page 3 (JM-1122)
acquire, take, hold and enjoy the same for
the ~purposes aforesaid, and to that end shall
have the right to exercise the right of
eminent domain and to condemn land for the
uses and purposes aforesaid . . . .
Article 6837 cedes to counties and cities acting under
title 118 (articles 6830~et sea.) the right to use state
owned land and sea bottom below high tide for purposes set
out in title 118.
We think that the evident purpose of title 118 and
chapter 421 is flood control. See Attorney General Opinion
M-50 (1967) (stating that seawalls "are constructed as an
aid in keeping inland lands from becoming inundated by sea
water"). Also, article 6830 includes authorization "to
improve, maintain and beautify any boulevard erected in
connection with such sea wall." See also Local Gov't Code
0 421.001(b) (authorizing contribution of funds to United
States in connection with federal projects relating to
"construction or maintenance of a seawall, boulevard, or
other project authorized under Title 118"). The purpose of
a public beach would be, we assume, to provide recreation.
Case law suggests that a court would strictly construe
the applicable statutes and constitutional provisions in
determining whether the commission is authorized to expend
funds to construct or create a public beach. See, e.a.,
Harris Countv Water Control & Imorovement Dist. No. 110 v.
Texas Water Rights Comm'n, 593 S.W.Zd 852 (Tex. Civ. App. -
Austin 1980. no writ) fconstruction of certain recreation
facilities by a municipal utility district not authorized by
section 54.012 of the Water Code and article XVI, section
59, of the Texas Constitution): cf. Attorney General
Opinion MW-313 (1981) (river authority authorized to
construct certain recreation facilities on reservoir).
Consequently, we think that the commission has no
authority to expend funds to construct a public beach unless
a particular public beach could somehow be accurately
characterized as a seawall, breakwater, levee, dike, fldod-
way, or drainway, or as a beautification measure for a
"boulevard" erected in connection with such flood control
pr0jects.l
1. Constitutional authority for the provisions of
(Footnote Continued)
* p. 5897
Honorable D.R. ltTom" Uher - Page.4 (JM-1122)
Unless, on the facts of a particular case,
qzEib;icabeach could be accurately character-
seawall, breakwater, levee, dike,
floodway, or drainway, or as a beautification
measure for a boulevard erected in connection
with such a flood control project, a seawall
commission operating under chapter 421 of the
Local Government Code and title 118,
V.T.C.S., such as the Matagorda County-Pa-
lacios Seawall Commission lacks authority to
expend funds for the beach's creation or
construction.
JIM MATTOX
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
LOU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by William Walker
Assistant Attorney General
(Footnote Continued)
title 118 and Local Government Code chapter 421 is found in
article
. XI, section 7, of the Texas Constitution, which
provides for the imposition of a tax "for construction of
sea walls, breakwaters, or sanitary purposes." Please note
that, as you do not specifically raise any such issue, we do
not here address the constitutionality of the provisions of
chapter 421 or title 118 that relate to improving,
maintaining, or beautifying boulevards.
P. 5898