Eouoreblc John Owens opinion No. St+654
Hendereon County Attorney
County Attorney’s Officr 80: Validity of a conveysncc of
Athens, Texas 75751 reel property by the Athens
Municipal Wetcr Authority
Dcet l4x.Oueua:
The Athens Muaieipel Water Authority is a conservation and
reclamation district creetad in 1957 pursuant to article XVI, section
59, of the Texas Constitution. Acts 1961. 57th Leg., ch. 157, at
286-88; Atts 1957, 55th Leg., ch. 142, et 311-19 (codified as article
8280-196. V.T.C.S., which has neither been repealed nor carried into
the Water Code). Pou provide us with the following information
regarding the authority:
The Athens Municipal Water Authority owns Lake
Athene. a 1.500 ecre lake,.crcated for the purpose
of supplying voter to the city of Athens. The
Athens Municipal Water Authority owns in fee
simple all lend surrounding Athens lake up to the
448 ft. mean sea level line. The 448 mean sea
level line repressnts en elevation of a 'hundred
year ' flood level. The actual water lina with
respect to Lake Athens is 440 ft. mean sea level.
On or about May 2, 1985. it was brought to the
attention of the Athene Municipel ,Water Authority
Board that [property ovncrs] had constructed their
residence on a lot abutting the water authority's
property, and so situated their house as to cross
the 448 061 line. thereby cncroeching upon meter
authority property. The total lncroacbmeat by the
[property owner] amounts to 592.43 sq. ft. The
results of en on the ground survey made by a
registered public surveyor are attached to this
brief as Exhibit ‘A.’ and incorporated herein by
reference. Despite the fact that the total
encroachment amounts to 592.42 sq. ft., the
[property owner] exceeded the 448 msl by only 8
inches vith respect to elevation.
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honorable John Ovens - Page 2 (J&654)
You inform us that there are now several other property owners who
have erected structures that encroach upon the property of the
authority. Accordingly, you ask three questions regarding the
authority of the water authority to convey to the property ovners
those parcels of the authority's real property upon which the property
oyIIersconstructed their homes.
You first ask vhether the vater district has authority to convey
outright to the property owners the subject parcels. You suggest that
section 54.214 of the Water Code empowers the authority to convey any
property deemed surplus by the authority's governing board. We
disagree. because the Athens Municipal Water Authority is not governed
by chapter 54 of the Water Code. Chapter 54. enacted in 1971, governs
municipal utility districts created under that chapter; the act
creating the Athens Municipal Water Authority, on the other hand,
specifically provides that the authority has those pavers conferred by
the aforesaid constitutional provision [article
XVI. eection 59. of the Texas Constitution1 as
weli as those conferred by the General Law of
the State relating to water control and improve-
ment districts vh,erein not in CIonflict with the
provisions of this act. (Emphasis added).
Acts 1957. 55th Leg., ch. 142. 51, at 311; see also Water Code
150.051. Accordingly~,we must turn to chapter 51 of the Water Code,
which governs water control and improvement districts, and chapter 50,
which sets forth provisions generally applicable to general lav
districts; as well as to the statutes creating the authority.
The act creating the authority empovers it to do the following:
Sec. 4. The Authority is hereby empovered (a)
to develop, construct or purchase dams, re-
servoirs, underground and other sources of water.
The Authority is empowered to construct or
purchase all works, plants, and other facilities
necessary or useful for the purpose of providing a
source of water supply and storing, processing
such vater and transporting and distributing it
for municipal, domestic and industrial purposes.
The Authority shall at all times have power to
develop or purchase additional underground or
other sources of water and to improve, enlarge and
extend its water system. The Authority is also
authorized to make contracts for the purchase of
water; (b) in order to preserve and protect the
purity of the waters of the state and of the ~~-
Authority and conserve and reclaim said vaters for
beneficial use by the inhabitants of the Authority
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Ronorable John Ovens - Pege 3 (i-654
to provide all plants, works, facilities and
appliances incident to or helpful or necessary to
the collection, transportation. processing,
disposal and control of all domestic, industrial
or commune1 wastes. whether of fluids, solids or
composites.
Acts 1957, 55th Leg., ch. 142. 14. at 313. The act further empowers
the authority to acquire property:
Sec. 5. For the purpose of carrying out any
paver or euthority conferred by this Act the
Authority shall have the right to ecquire laud end
easements, by condemnation is the manner provided
by Title 52, Revised Civil Statutes, as amended,
relating to eminent domain. The amount of and
character of interest in land and easements thus
to be acquired shell be determined by the Board of
Directors. In the event that the Authority, in
the exercise of the power of eminent domain or
power of relocation, or any other power granted
hereunder, makes necessary the relocation,
raising, rerouting or changing the grade of,
or altering the construction of eny highway.
railroad, electric transmission line or. pipe-
line or telephone or telegraph properties and
facilities, all such necessary relocation,
raising, rerouting, changing of grade or
alteration of construction shall be accomplished
at the sole expense of the Authority.
Acts 1957. 55th Leg., ch. 142. 15, at 313-14. Neither the act
creating the Authority nor the subsequent 1961 amendatory act empower
it to convey real property, but section 51.191 of the Water Code does.
Section 51.191 of the Water Code provides that
[t]he board may sell at a public or private sale
any property or land ouned by the district which
is not required to carry out the plans of the
district.
The "plans" to which section 51.191 of the Water Code refers are the
"plans" for the operations of the district and for construction of
improvements that the governing board may adopt pursuant to sections
51.122 and 51.124 of the Water Code.
We are required to interpret section 51.191 of the Water Code in
a way which
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Eonorable John Ovene - Page 4 (lW654)
expresses only the will of the makers of the law,
not forced nor strained, but simply such as the
words of the law in their plain sense fairly
sanction and will clearly sustain.
Railroad Commission of Texas v. Mller, 434 S.W.2d 670, 672 (Tex.
1968).
The language [of the statute] appears to us to be
plain end unambiguous and its meaning clear and
obvious. We can only enforce the statute as
vritten end have no right to create or to find en
ambiguity vhere none exists in order to call into
play generally recognized rules which ore used es
aids to the construction of ambiguous statutes.
Col-Tex Refining Co. v. Railroad Commission of Texas, 240 S.W.Zd 747,
750 (Tex. 1951). Section 51.191 of the Water Code clearly confers to
the authority the paver to sell, either by public or by private sale,
any property or land ovned by the district that is not required to
carry out the plans of the district. The question as to vhether any
given parcel is required to carry out any plan adopted by the board is
a matter of fact, the determination of vhich is inappropriate in the
opinion process.
With your second question, you ask about the effect of permitting
e property owner ~to raise the current elevation on his property so
that the 448 foot sea level line is then shifted sufficiently lake-
verd to fali outside the boundary of his property. You inform us that
real property located at or belov the 448 foot mean sea level line
falle vithin the loo-year flood plain. You further inform us that the
boundaries of the land that the district ovns surrounding the lake is
determined. not by reference to the elevation from mean sea level, but
by reference to the more conventional legal description/metes and
bounds method. If the property ovner did in fact raise the llevetion
of the subject parcel, such an event would have no effect upon the
ovnership of the property; title would still remain vith the district.
We understand you then to ask vhather section 51.191 of the Water
Code empowers the authority to convey property that does not fall
within the loo-year flood plain. Again. the issue as to whether any
given parcel of real property may properly be required by the district
to carry out its plans is a matter of fact, the determination of which
is inappropriate in the opinion process. We cannot say as a matter of
law vhether. in this particular situation, parcels of land that are
ovned by the district end that do not fall vithin the loo-year flood
plain, are required by the authority to carry out plans adopted by the
board. We only note .that the Water. Code~.in.stE~_io~_Sl,~?~__conf_e_rs__
power to the authority’s board to convey property that is not required
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Aonorable John Ovens - Page 5 (m-654)
for the cerrying out of the board's plans. You do not ask and
accordingly we do not address any issues regarding potential lisbility
for constructlou in flood hazard areas nor any possible effect of the
National Flood Insurance Act of 1968. 42 U.S.C. 554001 through 4128
(1982). We discuss only the powers conferred by Texas statutes to the
authority's governing board.
With your third question, you ask whether the district vay enter
into e long-term lease of the property at issue with the affected
property owners. Section 51.182 of the Water Code sets forth the
folloviug:
(a) A district may lease to any person, firm.
or corporation which is a bona fide water customer
of the district any of its river pump stations.
conveyance canals, off-channel reservoirs, re-
servoir pump stations, water mains. water treat-
ment plants, or other facilities used in connec-
tion vith them. The lease may include any of the
district's land which is appropriate to the
utilisation of the leased facilities, including
but not limited to land acrquired by eminent
domain.
(b) The board and the lessee shall agree on
the form of the lease end its terms, conditions.
provisions, and stipulations: hovever, the dura-
tion of the lease shall not be longer than the
duration of the water contract between the
district and the lessee under the primary term of
the voter contract and any renewal or extension of
it.
(c) After a lease to a water customer is
authorized by the board, the lease shall be
executed by the president or vice president of the
board and attested by the secretary. The lease is
valid and effective without any other requirement
or prerequisite by the district. (Emphasis
added).
It is clear from an even cursory reading of section 51.182 of the
Water Code that the term “facilities” described in subsection (a) does
not refer to the sorts of small parcels of real property that are the
subject matters of this request. It is clear that the authority may
lease only the land that is “appropriate to the utilisation of leased
facilities.” On the basis of the information that you have submitted
to us, we conclude that section 151.182 of the Water Code does not
empower the authority to lease the small parcels of real property to
the affected property ovners.
p. 2981
Roaorable John Ovens - Page 6 (JM-654)
Accordingly, we conclude that section 51.191 of the Water Code
empovers the Athens Municipal Water Authority to sell et a public or
private sale any property or land ovned by the authority chat is not
required for the carrying out of the plans of the district. Whether
the parcels of real property at issue are so required is a matter of
fact, the resolution of which would be inappropriate in the opinion
process. We further conclude. ou the basis of the infomation sub-
mitted to us, that section 51.182 of the Water Code does not ercpover
the authority to lease to the affected property ovners the parcels of
real property that are the subject of this request.
SUMMARY
Section 51.191 of the Water Code evpovers the
Athens l4unicipal Water Authority to sell at a
public or private sale any property or land ovned
by the authority that is not required for the
carrying out of the plans of the district.
Whether the percels of real property that are the
subject matter of this request are so required is
a matter of fact vhose resolution in the opiuion
process would be inappropriate. Under the facts
presented, section 51.182 of the Water Code does
not empowerthe authority to lease to the affected
property owners the parcels of real property owned
by the authority upon which the property ovuers
constructed improvements.
JIM MATTOX
Attorney General of Texas
JACX HIGHTOWER
First Assistant Attorney General
MARYRlILLgR
Executive Assistant Attorney General
RICK GILPIN
Chairman, Opinion Cosmittea
Prepared by Jim Moellinger
Assistant Attorney General
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