R-636
THEA~~~~~EYGENEHAL
olw TEXAS
AUSTIN, TEXAS
PIUCE DANlEl. FAOAN DlCEE3ON
*-- CaFxuEmAL nppT-A?8x
August 26, 1947
Bon. Beauford H. Jester Opinion No. v-361
Governor of Texas
Austin, Texas Re: Rio Grande Com-
pact - Authority
of Compact Com-
mission to amend.
Dear Governor:
We have your letter of June 25, 1947, In
which you request our opinion on certain proposed
changes in the Rio Grande Compact. The problems
wNch arise in this connection are set out in an ao-
companying letter addressed to you by Hon. J. E. Quaid,
Texas Commissioner on the Rio Grande Compact Commission,
from which we quote as follows:
"I respectfullytake the liberty to
direct your attention to Title 128 for
the Revised Civil Statutes of Texas and
Article 7466-1,relating to the terms of
the Rio Grande Compact Commission. This
is found in the Pocket Parts of the Sta-
tute. Article XIII thereof.providesthat
at the expiration of every five years, the
Commission may review any provision tbere-
of, which is not substantivein character,
and which does not affect the basic prin-
clples upon which the Compact is founded.
"Last year the Hew Uexico Colmnissioner
made a request for a review with reference
to the deliveriesby New Mexico to Texas.
The matter was referred to the Rngineering
Advisors of the respective States, towit:
Texas, NW Mexico'and Colorado. They have
worked out a new schedule with reference to
gaging stations and measurements. They have
made a report back to the Commission,wNch
I heretith enclose. Each state is submitting
to its Attorney General, the question of whe-
ther or not, the suggested changes in the re-
Hon. Beauford H, Jester - Page 2 --V-361
pert are substantivein character,and
could be made wltheut amenangthe Cem-
pact threugh the three LegiaZaturesand
through &he Federti Qeverzsa#~t~The En-
gineering Adviiaersstate that the eb-
ligation8 ef the rbblpecttvestates for
the deliveries bf water are net ahanged
in amy mbrtantiraf$wumerb
"I aata&hag that this sattierbe
submzltted&e the Atterney Qeneml of
Ten8 and an ogdaien be given ou as te
t&et&es or'not this change colit
d be aade
without ri&aMng the said Artlale XIX1
ef the Gempaat, Zf the Segal.prepositien
$av~%vti is s@%mferedfavorable te the Re-
port, then 1110
nemt 8tep trillbe te advise
with the Water Bimtrj.ctebelow the EJ.ephant
%ttte Dam, who wetid be affected favorably
er unfamwab~y by the change* Bf coursei
the first question bs, can this ohsnge be
lega3ly made arithetit
amending the whe$e.
Compaot?"
We have also been furnishedwith a repert
by the Cemmissienwhiah describes its inwertigation
and the cencluoiensreaohed reoePnma* the ohames.
It is preposed te elimZnatt twe gaging stations1name-
'ly, San Acacia and San Marcia& San Narci~ is PM-
aehtly used as the kWe0 Index statlen fer the purpose
ef cemput%ngNew Eexiao*s ebllgatien te deliver #at&r.
It Is preposed that a gagtig station now existing be-
lew ELephent Butte Reservsir be substitutedas the
lower Index station in fiaae of San Narclafl, Because
of this substitution, the tabiklationcf relPtds?nship
betveen the upper index station (Otowi) and the lewer
Index statlen required to determlne the aeasure if
New Nexico's obligation to deliver water must be re-
drawn, In addition, the measure of New Mexico's ob-
ligatlen will, in Wcnre, be cemputed en the basis
of twelve menth@s fkw, rather than the present nine
month's flow. The months presently excluded are Jay,
August and September,,,By unanimous agreement, the
Gextsml.ssd.eners
find that the changes Indiaatedwill rt-
suit in substantiallythe same ob!ligatien and result
as now exists under present praotiee.
To aocempliah these changes, the Cenn~Lssion
has proposed and recommendedin its repert that rines
Hon. Beatioti Ii.Jester - Page 3--v-361
(I) and (J) of Article II of the present compact be
deleted and ,tha-t
Article IV be rewritten. Ue deem it
necessmy to set out In full Article IV as it present-
ly exists and Article IV as proposed by the Commission:
Article IV (of the present Compact):
"The obligation of Bew Mexico to
deliver water in the Rio Grande at San
Rarclal, during'eachcalendar year, ex-
clusive of the months of July, August,
and September, shall be that quantity set
forth in the following tabulation of re-
lationship,which correspondsto the
quantity at the upper index station:
"Dischaqe of Rio Grande at Otowl
Bridge and at San Marcia1 exclusive of
July, August and Septeatber
Quantities in thousands of acre-feet
Otowi Index San Marcia1 pdex Supply (6)
100
200 65
300 141
400 219
2:: 33Ei
4669
E
900
1000
1100
1200
ZG
%:
1700
1800
1900
2000
2100
2200 2ilY
2300 2252
Eon. Beauford PI.Jester - Page 4 --v-361
"Intermediatequantities shall
be computed by proportionalparts.
“(5) The Ototi Index Supply is the
recorded flow of the Rio Grande at the
U.S.G.S. gaging station at Otowi Bridge
near San Lldefonso (formerlystation
near Buckman) during the calendar year,
exclusive of the flow during the months
of July, August, and September, corrected
for the operation of reservoirs construct-
ed after 1929 in the drainage basin of
the Rio Grande between Lobatos and Otowi
Bridge,
“(6) San Marcia1 Index Supply Is the
recorded'flowof the Rio Grande at the gag-
ing station at San Marcia1 during the cal-
endar year exclusive of the flow during the
months of July, August, and September.
"The applicationof this schedule
shall,be subject to the provisionsherein-
after set forth and appropriateadjustments
shall be made for (a) any change In location
of gaging stations; (b) depletion after 1929
in New Mexico at any time of the year of the
natural runoff at Otowi Bridge; (c) deple-
tion of the runoff during July, August, and
September of tributariesbetween Otowl Bridge
and San Martial, by works constructedafter
1937; and (d) any transmountaindiversions
into the Rio Grande between Lobatos and San
Marclal.
"Concurrentrecords shall be kept of
the flow of the Rio Grande at San Martial,
near San Acacia, and of the release from Ele-
phant Butte Reservoir, to the end that the
records of these three (3) stations may be
correlated."
Hon. Beauford H. Jester - Page 5--v-361
Article IV (as proposed):
"The obligationof Hew Mexico to
deliver water In the Rio Or&de into Ele-
phant Butte Reservoir during each calendar
year shall be measured by that quantity
set forth in the following tabulation of
relationshipwhich correspondsto the quan-
tity at the upper index station;
DISCRARGE OF RIO GRARDE AT OTOWI BBIDGE AND
RLEPRAHT BUTTB EFFECTIVE SUPPLY
Quantities in thousands of acre feet
Otowi Index Supply (5) Elephant Butte Effective
Index Supply (6)
100
200 1:i
300 171
400
500 %
600 345
700 406
800
900 ;ii
1000 621
1100
1200
5%
1500
1600
1 00
1;3
oo-
1900
2000
2100 1695
2200 1795
3:: 18%
1995
2500 2095
Hon. Beauford H. Jester - Page 6--v-361
2600 2195
2 00 2295
2zi
00
2900 22;;
3000 2595
Intermediatequantities shall be computed
by proportionalparts.
“(5) The Otowl Index Supply Is the
recorded flow of the Rio'Crande at the
U.S.G.S. gaging station at Otowl Bridge
near San Lldefonso (formerlystation near
Buckman) during the calendaryear, cor-
rected for the operation of reservoirs con-
structed after 1929 in the drainage basin
of the Rio Grande between Lobatos and Oto-
wi Bridge.
“(6) Elephant Butte Effective Index
Supply is the recorded flow of the Rlo-
Grande at theegaging station below Ele-
phant butte Dam during the calendar year
plus the net.gain in storage in Elephant
Butte Reservoir during the same year or
minus the net loss In storage in said re-
servoir, as the case may be.
"The applicationof this schedule
shall be subject to the provisions herein-
after set forth and appropriateadjustments
shall be made for (a) any change in loca-
tion of gagi-hgstations; (b) depletion after
1929 in Rew Rexlco of the natural runoff at
Otowi Bridge; and (c) any trans-mountaindi-
versions into the Rio Grande between Lobatos
and Elephant Butte Reservoird"
The Compact is shown in full as Article @66e-1,
Vernon*8 Citil Statutes. The solution to the question Pre-
sented depends upon interpretationand constructionof
Articles V and XIII of the Compact, whhichwe now copy in
full1
ARTICLE V -
"If at any t-e it should be the unani-
mous finding and detemtion of the Com-
Hon. Beauford H. Jester - Page 7--v-361
mission that because of changed physical
conditions,or for any other reason, re-
liable records are not obtainable,or can-
not be obtadned, at any of the stream gaging
stations herein referred to, such stations ;
may, with the unanimous approval of the Corn+
mission, be abandoned, and with such ap- /
proval another station, or other stations, :
shall be establishedand new measurements
shall be substitutedwhich, In the unanimous
opinion of the Commission,will result in
substantiallythe same results, so far as
the rights and obligationsto deliver water
are concerned,as would have existed if such
substitutionof stations and measurements
had not been so made."
ARTICLE XIII -
"At the expiration of every five-year
period after the effective date of this Com-
pact, the Commissionmay, by unanimous con-
sent, review any provisions hereof which are
not substantivein character and which do not
affect the basic principles upon which the
Compact is founded, and shalI meet for the
considerationof such questions on the re-
quest of any member of the Commission;prOVi-
ded, however, that the provisions hereof shall
remain in full force ana effect until changed
and amended WIthin the intent of the Compact
by unanimous action of the commissioners,and
until any changes In this Compact are rati-
fied by the Legislaturesof the respective
States and consented to by the Congress, in
the same msnner as this Compact is required to
be ratifiedto become effective."
In our opinion, under Article XIII of the Corn-~
pact, no change in the nature of an amendment affecting
the verbiage and physically changing or revri?lting
any of
the provisions of the Compact can be made without ratifi-
cation by the Legislatures of the three states and con-
sented to by the Congress,whether the change be substan-
tivein character or not. Article XIII clearly covers
changes in this regard which are not substantive. A sub-
stantive change would necessarilyrequire ratification.
This prohibitionrelates to all provisions of the Compact,
Hon. Beauford H. Jester - Page 8--V-361
includingArticles II, IV and V, It appears from the
CommissIonIsReport that it proposes to amend the Com-
pact by substitutingmew provisions to take the place
of provisions as now wrzttten. The first two paragraphs
of CosmdssionerQuaidls letter to you indicate that the
Commissionhas proceeded in the matter of amendment un-
der and in accordancewith Article XIII, In our opinion,
the Commissionmay not proceed under Article XIII and ..
delete any provision of the Compact and substitutein
lieu thereof a new provision unless it secures ratifica-
tion as required by such article.
.
This does not mean that the changes which the
Commission recommends and the result which It seeks to
obtain by its amendment cannot be accomplishedwithout
ratification.
Article V specificallyanticipatesand covers
the procedural changes which the Commission seeks, It
permits accomplishmentby the actual doing of those things
the Conmdssion seems to feel can be done only by amend-
ment and actual change in the verbiage of the Compact, The
Commission expresses concern over whether or not the chan-
ges are substantive. So long as the change is permitted
by Article V, it is Wnaterlal whether the change is sub-
stantive or not, since the substantivecriteria is not a
part of Article V but relates only to Article XIII. In
our opinion, and so long as the Commission complieswith
the requirementsof Article V, It can effect the result
which it seeks by unsnlmous consent and the affirmative
doing of the thing desired and to reach this result, we see
no need to amend the Compact.
The distinctionwe have made between Articles V
and XIII may seem contradictory, If there is contradiction,
then we are unable to reconcile these two articles which,
otherwise,would be in hopeless conflict as concerns the
matter of ratification. It is stated in Ar';icleXIII that
the Ite. e provisionshereof shall remain In full force and
effect. o . until any changes in this Compact are ratified. O *'
If it is intended that "changes" shall refer to the physical
aspects of the provisions of the Compact, rather thanto the
purposes which these same provisions intend, and this, in our
opinion, is what is meant, then there is still room within
which Article V can effectivelyoperate, since Article V ob-
viously relates to change in method, approach, or procedure
within certain applicableprovisions,namely, Articles II, III
t
.
Hon. Beauford H. Jester - Page g-V-361
and IV. If, on the other hand, changes as used in
Article XIII mean every change of result or proce-
dure within any of the Compact provisions, then it
takes away what has already been clearly authorized
by Article V,
Assume for the purpose of this opinion
that there is hopeless conflict between these Articles.
In that event, under well establishedrules of ~statu-
tory construction,which we believe are applicable to
the Compact involved here, it is our opinion that Arti-
cle V being specific and relating clear1 to the matters
which it covers (ArticlesII, III and IV7 would over-
rule and prevail over the more general purposes of
Article XIII. See 39 Tex. Jur. 212, 59 C. J. 1000, 50
z.RJy 2”. We consider the following language from
. . ., pages 1010 and 1011, applicablehere:
1, Where there is, in the same
stat&.td,'ageneral prohibition of a thing
and a special permissive recognitionof
the existence of the same thing under re-
gulation, the particular specified,intent
on the part of the legislatureoverrules
the general intent incompatiblewith the
specific one. Additional words of quallfi-
cation needed .toharmonize a general and a
prior special provision in the same statute
should be added to the general provision,
rather than to the special one.
‘1
. . . It has been said that, in case
of conflict between the provisions of the
same statute, those susceptibleof but one
meaning will control those susceptibleof
two, if the act can thereby be rendered
harmonious. When one section of a statute
treats specially and solely of a matter,
that section prevails in reference to that
matter over other sections in which only
incidentalreference Is made thereto: not '.
because one section has more force as a legis-
lative enactment than another, but because the
legislativemind, having been in the one sec-
tion directed to the particular matter, must
be presumed to have there expressed its in-
tention thereon rather than In other sections
Hon. Beauford H,,Jester - Page 10--v&361
where Us attention was turned to other
things. . . ."
In our opinion, all of the proposed changes
are within the permissiveprovisions of Article V. How-
ever, It has been with some difficulty that we have
reached this conclusionregarding inclusion of th,eJuly,
August and September flow in computingNew Eiexlcotsobli-
gation to deliver water: The Commissionmay substitutenew
measurements "which, in the unanimous opinion of the Com-
mission, will result in substantiallythe same results. . .'
and since the Comm?sslonershave all agreed that inclusion
of July, August and September flow in arriving at the new
measurementswill produce substantiallythe same result as
now obtains, we accordinglyhave concluded that such change
Is permissiveunder Art%cle V.
In conclusion,.youare advised that, under either
of the theories advanced above, and 80 long as the COm-
mission keeps within Article V, it may accomplish the re-
sult which It seeks. The Coarmission may not change the
physical aspects of the Compact as it seeks to do by amend-
ment without ratification.
The Rio Grande Compact Commission is
authorizedby Article V of the Compact (Art-
icle 7466e-1, V. C. S. ), with the unanimous
approval of the Commission, to discontinue
certain gaging stationsand substitutea new
station, or stations,new periods of flow, .'
and new tabulationsfor the purpose of measur-
ing BlewMexicots obligation to deliver water
into the Rio ffrande. The results achieved
through the change must be, in the unanimous
opinion of the Commission,substantiallythe
same as those.whichobtain under the Compact.
Article XIII of the Compact has no applica-
Hon. Beauford H. Jester - Page U--V-361
tion so long as the change is contem-
plated by Article V.
Yours verytruly
ATTOFfEEXGEKEFiAL
OF TEXAS
m -kXSZ-M&
H. D. Pruett, Jc.
Assistant
EDP:bt
APPROVED
ASSISTAFT ATTORNEY GElQERAL