Senator Jim Wallace Opinion No. H-, 491
Chairman, Intergovernmental
Relations Committee Re: Constitutionality of
Texas State Senate section 54.201(b)(7),
State Capitol Building Texas Water Code,
Austin, Texas having to do with
creation of park and
Dear Senator Wallace: recreation facilities.
You have asked whether there is constitutional authority for sub-
section (b)(7) of article 54. 201, Texas Water Code, conferring upon a
municipal utility district authority to provide parks and recreational
facilities for the inhabitants of the district.
Section 54.201(b)(7), Texas Water Code provides:
A district [referring to municipal utility districts]
is authorized to purchase, construct, acquire, own,
operate., maintain, repair, improve, or extend inside
or outside its boundaries any and all works, improve-
ments, facilities, plants, equipment, and appliances
necessary to accomplish the purposes of its creation,
including all works, improvements, facilities, plants,
equipment, and appliances~incident, helpful or neces-
sary to:
(7) provide parks and recreational facilities for the
inhabitants in the district.
The authority for the creation of municipal utility districts is derived
from article 16, section 59 of the Texas Constitution, an amendment adopted
in 1917. That section calls for the organization of conservation and reclama-
tion districts as determined to be essential to the accomplishment of the
purposes of the amendment, such districts to be clothed with powers of
p. 2218
Senator Jim Wallace, page 2 (H-491)
government and with the authority to exercise such rights, privileges
and functions as might be conferred by law. The purposes of the amend-
ment, stated in subsection (a) are:
The conservation and development of all of
the natural resources of this State, including the
control, storing, preservation and distribution of
its storm and flood waters, the waters of its
rivers and streams, for irrigation, power and all
other useful purposes, the reclamation and irrigation
of its arid, semi-arid and other lands needing irri-
gation, the reclamation and drainage of its over-
flowed lands, and other lands needing drainage, the
conservation and development of its forests, water
and hydro-electric power, the navigation of its
inland and coastal waters, and the preservation and
conservation of all such natural resources of the
State are each and all hereby declared public rights
and duties: and the Legislature shall pass all such
laws as may be appropriate thereto.
Thus, the issue presented is whether the development of parks and
recreational facilities by a municipal utility district is within the consti-
tutionally stated purposes of conservation districts.
Provisions of the Constitution are to be given a liberal construction to
achieve the apparent purposes of those who have adopted the provision.
Brown County Water Improvement District No. 1 v. Austin Mill & Grain
co., 138 S. W. 2d 523 (Tex. Sup. 1940). The view that the “conservation and
development of all of the natural resources of this state . . . for all other
useful purposes” includes recreational uses is certainly not an unreasonable
interpretation. S&e Attorney General Opinion C-436 (1965) which concluded:
While a right to develop natural resources for
recreational purposes is not specifically men-
tioned in section 59a of Article XVI of the Texas
Constitution, such right would undoubtedly be
included in the language.
p. 2219
Senator Jim Wallace, page 3 (H-491)
However, in Deason v. Orange County Water Control and Improvement
District No. One, 244 S. W. 2d 981 (Tex. Sup. 1952). the Supreme Court
held that article 16, section 59(a) did not authorize the district to purchase
and construct fire control and prevention equipment.
The Court noted that section 59(a)
. . . contains no language which would support a
holding that the people in enacting the amendment
contemplated that a’water control .and improve-
ment district created for the purpose of conserving
and developing the natural resources of the district
would have the power to provide fire-fighting equip-
ment and appliances for a town within said district.
244 S. W. 2d at 984.
See also Attorney General Opinion H-28 (1973).
But article 7880-3a, V. T. C. S., the same statute whose constitutionality
was before the court in Deason was subsequently before the Supreme Court
in Parker v. San Jacinto County Water Control and Improvement District
No. 1, 273 S. W. 2d 586 (Tex.Sup. 1954) insofar as the statute delegated to
a water control and improvement district, organized under section 59 of
article 16, the power to install a sanitary and storm sewer disposal system.
Rejecting the attack the Supreme Court said:
Plaintiffs’ attack upon the statute fails
because the power to erect and operate a sewerage
disposal plant is clearly within Sec. 59a, Art. 16,
Texas Constitution. The water brought into the
area by the district is not destroyed by use but
must be returned to the hyrdological cycle. The
Conservation Amendment to our State Constitution
would certainly permit the purification of water
before it returns to the groundwater table and
the river system. The protection of the purity of
the waters of this State is a public right and duty
under the Conservation Amendment . . . .
273 S. W. 2d at 586.
p. 2220
Senator Jim Wallace, page 4 (H-491)
Where, as here, it is the stated purpose of the constitutional
amendment to provide among other things for the conservation and
development of natural resources including the development of forests
and storing of the waters of the State’s rivers and streams for all
useful purposes, we do not believe that we can say, as a matter of law,
that the use of these resources such as waters and forests, once developed
and conserved, for recreational purposes was not within the contemplation
of the people who adopted the amendment.
It is therefore our opinion that section 54.201(b) (7) of the Water
Code is constitutional.
SUMMARY
The development of parks and recreational facilities
by municipal utility districts created under section 59
of article 16 of the Texas Constitution in the district’s
program of developing and conserving the natural
resources of the State is a constitutionally permissible
activity.
Very truly yours,
v Attorney General of Texas
APPROVED:
, First Assistant
C. ROBERT HEATH, Chairman
Opinion Committee
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