Mr. Joe Carter Opinion No. WW-506
Executive Secretary
Texas Water Development Board 'Re: May the Texas Water Develop-
Austin 1, Texas ment Board lawfully give
financial,~assistanceto a
political subdivision for
the construction of a water
filtration or water treat-
ment plant when such plant
constitutes an integral
part of the entire water
Dear Sir: project?
You have requested the opinion of the AtiXXhey General
on the matter of whether theYTexas Water Development Board may
legally loan funds to a water.control ana improvement district
for the purpose of the construction of a water treatment plant
. . . "when such plant constitutes an integral part of the en-
tire project.*
We understand that,a district seeks a loan of State
funds under applicable law so that it may construct a waterworks
system designed to take rawwater from Lake Travis, render it
potable by filtrationand aistribute':itto the consumers of the
district.
No problem is involved relative to the authority of a
water control and improvement!district to do that which it seeks
t0 do. Article 700048, V.C.S.
The voters of the State on November 5, 1957, authorized
an Amendment to the Constitution known as Section 49-c of Article
III. Briefly, the amendment authorizes the sale of State Bonds
to provide an initial fund of $lOO,OOO,bOO.OO to be used to as-
sist named public corporations of the State in the conservation
and development of the water resources of Texas.
14r.Joe Carter, page 2 (WW-506)
The portion of the Amendment applicable to this opinion
follows:
"Such fund shall be used only for the purpose of
aiding or making funds available upon such,~terms
and conditions as the Legislature may prescribe,
to the various political-subdivisions or bodies
politic and corporate of the State of Texas in-
cluding river authorities, ~conservation~~andrec-
lamation districts created or organized or autho-
rized to be created or organized under Article
XVI, Section 59, or Article III, Section 52, of
this Constitution, interstatecompact commissions
to which-the State of Texas is a party and munici-
pal corporations,.ink..theconservation and develop-
,mentof the water resources of this State,,including
the control, storing and preservation of its.storm
and flood waters and the waters of its rivers and
streams, for all useful and lawful purposes by the
acquieition, improvement, extension,~01~construc-
tion of dams, reservoirs'and.other water storage,
projects, including~any system necessary for'the
transportation.of;w&ter from,storage to points of
treatment and/or distribution, including facilities
for transporting Waterstherefrom to wholesale pur-
chasers, or for any one or more of such>purposes
or methods. I*
Chapter 425, Acts 55th ,Legislature,R.S.,,,1957
(Article
8280-9, V.C.S.) is the enabling act for the Amendment. Therein
the Legi.slaturedefines the.word "project" as
I . . . any engineering undertaking or work for the
purpose of the,conservation and development of the
surface water resources of the State of Texas, in-
cluding the control, storing ana preservation of
its storm and flood waters and the waters of its
rivers and streams for+,alluseful and lawful pur-
poses by the acquisition, improvement,~exteneion
or construction of dams,.reservoirs and other
water etorage projects, filtration and water
treatment plants including any system necessary
Mr. Joe Carter, page 3 (WW-506)
for the.transportationpof water'.fromstorage
to points of 'distr~ibutiomo~
or from storage to
filtration.and treatmant phnts~,..bncluaing
facilities for.transporting~watar therefrom
to ~wholesale~purohasers,or fat any 0ne:or
more of..suchpurpos,e~s,:
or methods.u (Under-
scoring ours,) .'
The Legislature.deeme'd,thae
Amendment broad enough to
include the construetion,of;filtration.and water'treatment
plants as a par'tof a,systemtthat conserves and developssthe
water res6urces of the State,'
The enablingsact was.~‘anticipatory It was approved by
'the Legislature June 6',.'1957.The proposed amendment known as
~,'H.J.R.NO. 3~#Acts 55th.Legislature,.ra.s.,..1957,
was,approved by
the s'ameLegislatur8'on~~June~~~6~,~l957~
The legal effect,of,.;t~e.lggBsBative
interpretation is
assayed in Collinqsworth, 120 Tex. 473, 40 S.W.
2a 13, 16:
*Contemporaneous-~legislative,interpretation
of a constitutional~,provisiowie universally
held to be entitled'to weight D e aa
In,Coreic~a~Co.tton.MilBo.~v,Sh=pard,/l23 Tex, 352, 71
S.W. 2d 247, 251, the Courticautions:,
..:
"A legislative act Which iS in conflict With
the Constitution is .stillborn and af no force
or effect - impotent alike to confer rights
or to afford protection,"
Consequently. we are.bound to,consider whether there is
conflict between the enabling.legislation and the organic law.
"The fundamental purpose in construing a con-
stitu,tionalprovision~is to ascertain aa give
effect to the intent,of,the framers and of the
people who adopted it,? ~ollfngsworth County v.
Allred, 120 Tg~.,473~,.4OS-W, 26213,~15.
Mr. Joe Carter, page 4 (WW-506)
*Generally it may be raid that in determining
the meaning, intent,:aAa purpose of a law or
constitutional proviaion,..,thehistory of the
timee out of which ,it~grew,,"andto which it
. may be rationally eupp+red tobear taomedirect
relationship, the .evile intended to be remedied,
and the good to be~~accompliehed,are proper oub-
jecte of inquiry.~~'~
Travelere"Inr. Co. v. War-
shall, 124 Tex. 45, 76 8.W. 28 1007, 1012; 96
ALRo2.
The hisQorica1 background enveloping the framing aAd
enactment of the AmendmeAt~is,a.:harsh.onereflecting as it doee
the longest drouth in the.recorded history of the State. De-
ginning in 1951 ana continuing ,intoApril -'Way,.1957 the year8
of drouth were dieartrous,.;bitteralike to rural and metropoli-
tan areas. They were year8 of physical and economic stress well
calculated to implant iA:tbe~miAd of those exposed to its rigoAs
that water aAd the water.reaourcee of the State were asset6 to
be COAseNed aAd developed. It was in. the final year of drouth
that the electore of the ,State:Votedthe AmendmAt into the
ConstitutioA.
The question irrwheth&r.a filtration plant coAotitutiAg
*an integral part of the entire water project* ie within the
scope of the AmendmeAt?
spirit tttta
When the'AmeAdment waSdrafted and at the time it wae
voted upon, there exiated Texa8',lawon the treatment of water
aAd the purity thereof. Tho8e .whodrafted the Amendment were
bound to have had cognicance:'thereof;~thoeewho voted it into
law are chargeable with knowledge thereof.
Article 4477-1,uv.c.s.,,.provide8t
"Section 12(a). Dveryperron, firm, corporation,
public,or private, contemplating the eEtablif#hmeAt
of any drinking water!aupply.y~.. . for public use
". shall, previous to the construction thereof, submit
completed plans Ma rpecifications therefor to the’
,State Department of Health aAd the gala Department,
shall approve 8amel provided maid plans conform to
. .. .
or. Joe Carter, page 5 (WW-506)
the water safety . . . laws of this State.
The said water supply . . . system shall
be established only after approval+has beeA
given by the State DepartmeAt of Health.*
Article 44186, V.C.S.,*confers certain rule making
powers on the Commie8ioAer of.Health. Section C 4.00 of the
*Rules and Regulations Covering the Preparation, Submission
and Approval of Plans and Specifications for Water Supply
Systems and Acceptable Operating Practices, Texas State Depart-
ment of Health* providear
"All water Secured from surface source8 of
supply shall be given complete treatment at ;I
a plaAt which provide8 faCilitie8 for COA-
tinuous coagulatioA,~aedimentatioA, filtra-
tion through acceptable media, covered clear
well storage.aAd continuous disinfection of
the water with chlorine gas or suitable chlo-
rine compounds.*
Article 4477-1, Section 13 (f) gives the above rule the
teeth of law in that:
"No water from~any~aurface public drinking
water supply shall be made accessible or
delivered to any consumer for drinkiAg pur-
poses unless it hae first received treatment
essential to rendering it safe for human COA-
sumption. All treatment plants IAClUdiAg
aeration, coagulation, mixing, settling fil-
tration, and chlorinating units shall be of
such size and type as may be prescribed by
good public health engineering practices.*
Article 7471, V.C.S., contains a declaration of policy
relative'the appropriation of the public waters of the State.
The number one aAd highest priority granted is for YIomestic
and MUAiCipal uses, IAClUdiAg Water for 8UStaining human life
and the life of domestic animals.*
. .
w. Joe Carter, page 6 (WW-506)
'ThXtfact is that surface water, as available in Nature,
may be so colored, turbid, hard or contaminated as to be unfit
for either domestic or industrial use. See "Waterworks Hand-
book* by Flinn, Weston and:Pogert,:and~"Water Works Practice,"
a manual issued by the American Water Works Association.
By a series of processes:generically designated as water
treatment the raw water may be;restored to a,condition of use-
fulness. Filtration is one,such process. See authorities nwt
above.
Here, for convenience,z,iwe
will paraphrase Section 49-c
of Article III, Constitution,.ofT-as:
The fund may be used only for the purpose of
aiding in a designated manner~the named public
corporations in the~conservation and,develop-
ment of the State's.water resources which shall
include the control, storing and preservation
of waters derived from storms, floods,.,rivers
and streams by the acquisition, improvement,
extension, or constructionof aams,,,reservoirs
and other waterst6rage:projects *Bincludinq
any system necessarv-forthe transportation of
water from storage tonoints of treatment and/
or distribution,~.including~facilitiesfor trans-
porting water,therefrom towholesale purchasers,
or for anyyone~:ormorer,~of such+purposes or meth-
ods.- (Emphasis:aaaea)
The underscored portionfirst~above~might'be construed
to mean that the fund,could'be,,usedtoassist in,the construc-
tion of a system to convey~water‘~;from,~storage.~
a point of
treatment, ana, therefrom to ,wholesale.:purchasers.That con-
struction of the Amendmentwould+preclude.;the use of the fUAd
to assist in any manner withthe:construction of a treatment ,,'
plant.
The purpose promptingrthe~iamendmentwas a bold attempt
to meet the water problems of the State aAd that legitimate
purpose should not be defeated,ihindered or frittered away by
narrow or technical construction.,,,.Aransas
County v. Coleman-
Fulton Pasture Co., 108 Tex.,~223,:191S.W. 5530 Imperial~Irri-
gation Co. v. Jayne, 104 Te%,.395,,;138S.W. 575.
.-:.
Mr. Joe Carter, page 7 (WW-506)
It is our opinion~that a fair interpretation of the
language, spirit and intent of,the Amendment would be that
the construction of a treatment plant was included. Cer-
tainly it can be said that if it was the intent of the
framer8 to expressly exclude.,suchplants. much ha8 been left
to chance. Matter8 of.such importance should not be.read
out of the obviously broad.scope of the Amendment on the
Strength Of SUCh a AebUlOUS iAdiCatiOA Of negative intent.
*It is a proper inquiry. . . in ascer-
taining whether 'a,certain interpretation
should be given to the language of the Con-
stitution, to consider whether its framers
aAd the voters,by whom'it was adopted intended
the consequences which must follow such inter-
pretatioAlm KOY.V. Schneider, 110 Tex. 369,
218 S.W. 479, 481.
Some practical VonsequencesH of the exclusion of
treatment plants are these. The State 00uia assist,a city or
town in developing a water.eource~but:could notaid it in ren-
dering such water fit foruse by treating it in compliance
with the laws sponsoredand enforced.by the assisting sover-
eignty. Also, the aeeistance~is in the nature of loans that
must be repaid. If the water can.not be use&it can not-be
Sold and thereby earn~the~~incomenecessary to repay the loan
from the State. Further,,,acity or town with an existinq treat-
ment plant could avail itselfiof the benefits of the Amendment;
whereas, a muAicipality thathad no plant and could not finance
the construction of one without SUCh~~aSSiStaACeas is contem-
plated by the Amendment;.would be,, as,a practical matter, denied
the benefit of stored water because it lacked treatment facili-
ties. We do not believe that,such inequities between munici-
palities similarly situated were intended by either,the framers
of the Amendment or those who voted it into being.
*When a statute is plainand unambiguous inits
terms and not susceptible of mre than one con-
struction, courte'iarenot,,coAcernedwith the
consequences that may result therefrom, but must
enforce the law as they find it. But when a
statute is ambiguous in Ifs terms o.r susceptible
-5
fir.Joe Carter, page 8 (WW-506)
of two constructions, then the evil results and
hardships which may follow one construction may
be properly considered by the.oourt, and it is
right that the court shall cplaceuponthe stat-
ute that interpretation of which it is faftly
susceptible, which will ,attain the just solution
of the questions:involved and protect the rights
of all parties." Oriental Hotel Co. v. Griffiths,
88 Tex. 574, 33,S.W. 652, 53 Am. St. Rep. 790, 30
LRA 765.
Generally speaking, rules of~statutory construction are
equally applicable to~,the.~.construction~of
a Constitution. Bad-
ger v. Hoidale 1C.C.A.,,88th,,88 F. (2d);208, 109 ALR 798, ii
Am. Jur., Sec. 49, pa 658.
Therefore,.because,of the reasonsheretofore set out
it is the opinion of the Attorney General that the Texas Water
Development Board may.,lawfullygrant financial assistance to a
political subdivision, otherwise qualifying,~,forthe purpose of
constructing a water filtration ,plant.whensuch project consti-
tutes an integral part of the entire ~water project.
However, it is not,.our,~intent,
~nor do we hold, that
under the provisions of Section 49-c,.~ArticleIII,.Constitution
of Texas, the fund may be used,inithe.construction of water
treatment plants alone,,not a necessary part of a system, but
as an independent or exclusive~undertaking.
SUMMARY
The Texas Water Development Roard may lawfully
grant financial nssistance to a.;politicalsub-
division, otherwise qualifying, for the pur-
pose of constructing a water filtration plant
when such project constitutes an integral part
of the entire water project.
,p... .
Mr. Joe Carter, page 9 (WW-506)
Yours very truly,
GW-e
APPROVED8
OPINION COMMITTEE
Geo. P. Blackburn, Chabman
L. P. Lollar
c. K, Richards
J. C. Davis, Jr,
Arthur Sandlin
REVIEWED FOR THE ATTORNEY GENERAL
=8 W. V. Geppert