Untitled Texas Attorney General Opinion

Mr. A. C. Spencer, Executive Director, Texas State Soil ConservationBoard, 1012 First National Bank BulldIng, Temple, Texas Opinion No. WW-423. Re: Is It legai for a Soil ConservationDistrict, created under provisions cf House Bill 444, Acts, 47th Legislature,1941, Chapter 308, page 491,.to accept conditioned ease- ments for flood prevention structures, In which a Soil ConservationDistrict assqes financial responsi- bility for damage to utility Ones and other Installations; Dear Mr. Spencer: and related questions. We have received yo;lrr?q~est, dr5ed Rarch 31, in which yea ask cur cn;(nlosconcerning a Soil Conservation Dlstr5cf, created under rrovisiocs of souse Bill 444, Acts, 47th Leglslaflre, 1941, Cfia>ter399, page 491. You state the Distr:z% is no furnish, wi';hcz;. cost tc the federal gcvernmert,al; easements 235 rLghts of way necessary for a proposed flood Drevent'ci!struc%re. The AinericanTele- &one and Telegraph Ccmsany has cffsred tne District an easement to Impound water ever t!!eirright of way contaln- ing the Holdenville-Dallas"A" azd "Brcbur:ed comnunlcatlon =ables, conditioned,however, ;;p~nS-heDistr:cs assuming flnacclal responsibilityfor any-dazape to the cables, re- sulting from constrac5ioncr maZnten&nce of the structure, or occasioned by Its employees, contractors, land-owners or others. You have reTJested o'Jropinion on four questions, substantiallgas follows: or. A. C. Spencer, Page 2 @W-423). 1. Is It legal for a Soli Conservation District, created under provlslons of House Bill No. 444, Acts, 47th Legislature,to accept conditioned easementsfor flood prevention structuresIn which the Soil Conservation District assumes flnanc:al responslbllltyfor damage to utility lines and other Installations? 2. If a Soil ConservationDistrict should assume financial responslbllltyfor damage tc utility lines and In the constructionprocess damage occurs, could fznds appropriatedfor use of the Soil ConservationDistrict by the Texas Legislaturebe used to pay such damsges? 3. Could funds earned from the use of State appropriatedfunds be used to pay such damages? 4. What personal flnanclai llablllty fcr damages to utility lines could be attached to Individual Soli ConservationDlstrlct Supervisors, If such a conditionedeasemect is accepted? A Soil ConservationDistrict Is a governmental subdivisionof this State, and a public body corporateand politic, which exercises public powers in acccrd2rcewith, and for the purposes set forth is the State Scli Ccnserva- tlon Law. House Xii 444, Acts, 47th Leglsiakre, Sections 1, 3 and 7.~ Such Dlstrlcts have the expressed go&e?: "(Sec. 7-(3)) Tc obtain oDt1or.aupon ard to acquire, by purchase, exchange, lease, gift, grant, bequest, devise or otherwise, an-ypr;l;- erty, real or personal, or rights or interests therein; to maintain, iidmlnlster,and lqrove n+qes acquired, . . . any propeAu- "{Sec. ?-(51) To construct., lm;-rcve,and maintain such structuresas may be necessary or convenient for the performanceof any of the operations authorizedIn this Act; "(Sec. 7-(7)) . . . ~tc manage, as agent of the United States or any of its agencies, or cf this State or any of Its agencies, any soil con- servation, erosion control, or erosion prevention project within Its boundaries; . . .I' . or. A. C. Spencer, Page 3 @W-423). The "conditionedeasement" you mentioned Is, In reality, an easementwhich would give the District a right to flow and Impound water over the Company'sright of way; coupled with the District's covenant to Indemnify the Com- pany for all possible damage to the Company'sproperty. The statute (Sectlon,,3)empowers the District to acquire, by means specified, . . . any property, real or personal, or rights or Interests therein; . . .I'. Clearly, the Dls- trlct 1s authorizedto secure easements,but a question presents Itself as tc whether the District may make cove- nants of the nature In question. A soil conservationdistrict, like other districts created under Section 592 of Article )tEtof the Constitution of Texas, and s,tatutesenacted t'nereundercarrying out the purposes of such constltutlonaiprovisions,is the political subdivisionof the State, performing governmentalfunctions, and standing upo political subdlv County Water ImprovementDistrict No. 1, 153 Tex. 599, 272 ‘S.W.2d 498, and authorities therein cited. The proposed covenant, whereby the Soil Conservation District wouid obligate Itself C,L r indemnify the company for 'any damage to~the cables resulting from ccnst,ructlon~ or maintenanceof the structure, or occasionedby its (the Ms- trlctls) employees,contractors,la?d cwners cr others" would contravene the well estabitshed ---lie ;iat such political sub- divisions may not become an irdem?i5or. 3 this effect, see Gal-Test:? ??.& S.A.Ry. Co. v. Zraide County, 167 S.W. 2d 305, [wr-lr. rsfzsei,want of merit), In which the following statements are made: "We conclude there was T;Serror in Yze Cour:'s action In dismissing the cause, because the claimed contract was ultra vlres and the county had no authority to enter ia3 the alleged csntract of lndemni,*j.. . . I, . . . It 1s a contract whereby the County of Uvalde agrees to Indemnify the Railrcad Companies against all loss they may sustain by reason of a dipping vat being placed In the shlaplngpens of the Railroad Companies, regardless of how such damage may arise and regardless of whose negligencemay have caused the damage, and regardless cf how'great the loss may have been ormay be In the future. Mr. A. C. Spencer, Page 4 (WW-423). "The County of Uvalde unquestionablyhad authority under the statutes to enter Into a contract with the Railroad Companies for the privilege of erecting a dipping vat wIthIn the stock pens owned by the Railroads,but such authoritywould not justl- fy a contract to Indemnify the Railroadsagainst all loss which might thereafterarise as a result of such vat being so located,regardless of how such loss might arise or whose negligencemight c2use such loss. . . . " . It Is argued that Uvaide Ccunty co'uldnot.h&i secured permIss?.on frcm the Raiircad Companies to constmrctsuch vat in their &IopIng pens If It had not entered l'nto2 contraztc? lndem- nlty with the RaIlroads. This may be true, but, If so, the county should have simply located the vat at some other place. It could not use ttiIsfact as an excuse'forpledging the credit of the county to cover an unlimited llabllltywhich might arise In the future and thereby subject the ccunQ to possiblefinancial' ruin." In answer to your first q':eet:on, It is our cplnlon, and you are so adVised, that a Soii Csnse-rvation Dlst;",ctmay not assume financialrespcnslbllityfor 'any damage to the cables resultingfrom construct:o~ of the etnuctme” as pro- posed. This :e PC+ t.2say Y&t;, under 5.5p54:p +A .ai--~i:rstagces, .d.._* such a District could not Incur lerty :ir,derthe pxvFei$rs cl' Section 17 cf Article I of .theCcnetitefIcnof Texas. ?he deter3Ic2tlveqxstim ttier5 w.cuidbe C~O~Lr~ll~db-ya particil- lar set of facts which may or msy no,';etist at home time In the f?ukre, upon which tk?isDepartme-', -Lagnet r;Tdpass. In view of cur answer to yccr quesc,ic-r! No. I, we deem it -mnec.essaryor,answer q~s%~cs Ros. 2, 3 and a. SL!Y A Soil ConservationDIstrlct, created under House Bill 444, Acts, &7th Legls- lature, 1941, Is a pciiticai s%bdivl&Icn of the State, standing on the same foot- ing as counties; It Is au';horizedto secure easements,but may not ass‘tie !Q. A. C. Spencer, Page 5 W-423). flnanclal responsibilityfor all damage to property which may result from its activity, for such would be a prohibited contract of Indemnity. Yours ve* truly, WILL WILSON Attoxey General of;Texas By JQvdkw* ?.:mI. McFarling Assis",ant TIM:pf APPROVED: OPINION COMMITTEE Geo. P. Biackburn, Cbalrman Riley Etagene Fletcher Harris Toler REVIEWEDFORTREAT?ORNEY GEKERAL By: W. V. Gqper:.