Untitled Texas Attorney General Opinion ( 1973 )

AUSTIN. ?pRCXAt+ 'BEb~ll
September 20, 1973
The Honorable Clayton T. Garrison Opinion No. H- 109
Executive Director
Texas Parks & Wildlife Department Re: Authority of Parks and
John H. Reagan Building Wildlife Department to
Austin, Texas 78701 contract with utility or
water districts for ser-
Dear Mr. Garrison: vices to state park
You have requested an opinion as to whether the Parks and Wildlife
Department (hereafter “the Department”) may contract with a utility district
and water authority for utility service to a state park if the contract requires
the Department to make initial service connection payments to defray costs
incurred in providing the service.
It is proposed that Pirates’ Cove Municipal Utility District would
furnish sewage treatment facilities to the park. The so-called service
connection payment would include the cost of a portion of the proposed sewage
treatment plant, materials for additional ,line constru+ion, increased line
size, and other, unspecified expenses involved in furnishing sewage treatment
to the park for five years. The Department also proposes to provide half of
the salary of an employee of the District over that period plus a monthly pay-
ment for actual sewage treatment. The.alternative to this arrangement would
require the Department to build its own sewage treatment plant on park prop-
erty and incur the full expense and responsibility for its maintenance, at a
considerably greater initial capita,1 outlay. The difference in cost to the
Department is less significant, however, over the entire period of five years.
It is proposed that the Galveston County Water Authority would furnish
water. Evidently it would prefer to construct a transmission line not only
to service the state park but also other customers. The Department would
bear solely that portion of construction expense which represents the park’s
percentage of use. The alternative is for the Authority to provide a line only
large enough to service the park. The cost to the Department would be the same.
p. 522
The Honorable Clayton T. Garrison, page 2 (H-109)
The District and Authority must extend their water and sewage lines
over six miles of private property before reaching the park’s boundary in
order to furnish the above-described service.
Galveston Island State Park, with which this request is connected,
was created in 1970 under the auspices of Article 608lr, V. T. C. S. (See
also, H. C.R. No. 72, 62nd Leg., p. 4012, eff. 1971). Section 2 of the
statute empowers the Department “to develop, operate, and maintain out-
door areas and facilities of the state and to acquire land, waters, and
interests in land and waters for such areas and facilities. ”
Section 1 provides:
“The Parks and Wildlife Department is hereby
authorized and directed to cooperate with the proper
departments of the Federa,l Government and with all
other departments of the state and local governments
including as part of a state plan water districts, river
authorities, and special districts in outdoor recreation
in the enforcement and administration of the provisions
of the Federal Acts and any Amendments thereto . . . .
It is the intent of the Legislature to add to the purposes,
functions and duties of river authorities and water dis-
tricts or other political subdivisions organized under
Article III, Section 52, or Article XVI, Section 59, of
the Constitution of Texas, and counties, to acquire lands
for public recreation purposes, to construct thereon
facilities for public use, to provide for the operation,
maintenance and supervision of such public recreation
areas, and to enter into agreements with other local,
state or Federal Agencies for planning, construction,
maintenance, and operation of such facilities, together
with necessary access roads thereto, and to maintain
adequate sanitary standards on the land and water areas
as a part of and adjacent to such recreation areas. ”
P_ 523
The Honorab~le Clayton T. Garrison, page 3 (H-109)
Galveston County Water Authority and Pirates’ Cove Municipal
Utility District are organized under and pursuant to the provisions of
5 59 of Article 16 as conservation and reclamation districts. Articles
8280-318 and 8280-339, V. T. C.S. As such, they are deemed to be
“government agencies and bodies politic and corporate with such powers
of government and with the authority to exercise such rights, privileges
and functions concerning the subject matter of this amendment as may be
conferred by law.” Article 16 $ 59(b), Texas Constitution.
Section 59(a) of Article 16 declares the enumerated functions of
these districts to be “public rights and duties” which include “the control,
storing, preservation and,distribution of (the State’s) storm and flood
waters, the waters of its rivers and streams, for irrigation, power and
all other useful purposes . . . .I’
Clearly, then, the statutory mandate to establish and maintain such
places as Galveston Island State Park through interagency cooperation is
a broad one, and districts such as the municipal utility district and water
authority involved here are constitutionally authorized to contract with the
Department to furnish the public functions which the Department desires to
utilize.
But any proposed contract between the Department and Pirates’, Cove
Municipal Utility District or the Galveston County Water Authority must
still be scrutinized, in the context of Article 3 § 51 of the Texas Constitution,
which states:
“The Legislature shall have no power to make
any grant or authorize the making of any grant of public
moneys to any individual, association of individuals,
municipal or other corporations.whatsoever; . . . .‘I
The prohibition requires a “quid pro quo ” for any agreement necessi-
tating the expenditure of state funds. Byrd v. City of Dallas, 6 S.W.2d 738
(Tex. 1928); Friedman v. American Surety Co. of New York, (51 S.W.2d 570
(Tex. 1941); Barrington v. Cokinos, 338 S.W.2d 133 (Tex. 1960). We are not
p. 524
The Honorable Clayton T. Garrison, page 4 (H-109)
in a position to examine the financial desirability of the agreements in
question, but, apparently, the Department conceives them to be the more
desirable of the alternatives.
The Department proposes to pay only that percentage of the cost
which represents the increased burden on the Authority and Utility District
as a result of the services contracted for, whether for pipeline, plant
construction, or manpower, plus the monthly fee for actual services pro-
vided. We see no reason to doubt that this would result in a mutually
satisfactory exchange of consideration.
The Texas courts have consistently held that the stricture of Article 3
§ 51 against gratuitous grants is satisfied when money is appropriated for a
valid pub,lic purpose. Bullock v. Calvert, 480 S.W.2d 367 (Tex. 1972);
State v. City of Austin, 331 S.W.2d 737 (Tex. 1960); Barrington v. Cokinos,
338 S.W.2d 133 (Tex. 1960); Jefferson County v. Board of Co~unty. and District
Road Indebtedness, 182 S.W.2d 908 (Tex. 1944); Road Dist No. 4, Shelby
County v. Allred,. 68 S. W. 2d ,164 (Tex. 1934).
The agreements in question would undoubtedly serve to accomplish the
public purpose delineated by the Legislature in 5 1 of Article 608lr, V. T. C. S. ,
in creating a cooperative effort between the Department and local districts
for the maintenance of an outdoor recreational facility. And, in so doing, the
Water Authority and Municipal Utility District would be performing functions
allocated to themby Article 16 5 59 of the Texas Constitution.
They become, in effect, agents of the State to provide services which it
is the duty of the State to provide. Any incidental benefit which accrues to a
corp,orate body does not render the State’s expenditure invalid if the primary
purpose of the appropriation is a public one. State v. City of Austin, supra;
Barrington v. Cokinos, supra; Jefferson County v. Board of County and District
Road Indebtedness, supra; City of Aransas Pass v. Keelin& 247 S.W. 818 (Tex.
1923).
Still, the problem of ownershipand control remains. By the proposed
arrangements, the State will expend funds for the construction of a plant and
pipeline it will not own and for the employment of personnel it will not control.
p. 525
The Honorable Clayton T. Garrison, page 5 (H-109)
Legislative appropriations of funds for employees have been upheld if the
funds are deemed “wages” or compensation rather than gratuities, and a
public purpose is being served. Direct control of these employees by the
State does not appear to be constitutionally relevant. Friedman v. American
Surety Company of New York, 151 S.W.2d 570 (Tex. 1941); Byrd v. City of
Dallas, 6 S.W.2d 738 (Tex. 1928).
Attorney General Opinion No. C-511 (1965) dea~lt with a similar question
involving a legislative authorization for a grant of funds by the Texas Aero-
nautics Commission to a city for the purpose of construction, repair or
improvement of its airport. It was determined that the prohibitions of Article
3 5 51 would not apply if the city, rather than a private citizen, acquired
ownership in the airstrip to be renovated, given the valid public purpose of
the grant.
The proposed improvements of Galveston Island State Park would always
be owned and controlled by the Water Authority and Utility District which are
recipients of state funds not un.like the city in Opinion C-511. Thus, the public
is continually being served.
Attorney General Opinion No. M-32 (1967) states that a grant of state
funds to a municipality or interstate agency for the construction of waste
collection, treatment and disposal facilities for water quality control purposes,
through the Texas Water Quality Board, would not be in violation of Article 3
5 51. The above facilities wou,ld, no doubt, be owned and managed by the indi-
vidual agency or municipality rather than the State and incidentally benefit the
local area involved. The furtherance of a statewide recreational program
through interagency cooperation via Article 6081r, V. T. C. S., is analogous.
Legislative control would be maintained over these districts. Their
administrators are either appointed or elected, insuring that public rather
than private interests will be served, in accordance with the thrust of Article 3 .
5 51. Texas Pharmaceutical Association v. Dooley. 90 S.W.2d 328 (Tex. Civ.
App+, Austin, 1936, no writ); Articles 8280-318 and 8280-339, V. T. C.S.
The authorities we have cited deal with the constitutionality of outright
grants rather than agreements based upon mutual consideration. Moreover,
districts created under Artic,le 16 !j 59 have been deemed to be “political sub-
divisions” distinct from municipal corporations in that they perform “work
denominated public rights and duties defined by the Constitution. ” Willacy
County Water Control and Improvement District No. 1 v. Abendroth, 177 S. W.
p. 526
.. _
The Honorable Clayton T. Garrison, page 6 (H-109)
2d 936 (Tex. 1944); Banker v. Jefferson County Water Control and Improve-
ment District No. 1, 277 S.W.2d 130 (Tex. Civ.App., Beaumont, 1955, ref’d,
n. r. e.); Harris County Water Control and Improvement District NC. 58 v.
City of Houston, 357 S.W.2d 789 (Tex. Civ.App., Houston, 1962, ref’d.,
n.r.e.).
It appears doubtful, therefore, that any incidental benefit derived by
the districts in question, relating to services provided to facilities other than
the state park, wou,ld be sufficient to place these agreements in violation of
Article 3 $ 51.
In view, then, of the mutual exchange of consideration involved, the
clearly authorized public purpose of and benefit from the agreements, the
sanction for local agencies to perform public duties, and the special, public
nature of services rendered by districts created under Article 16 $ 59, the
Parks and Wildlife Department has the authority to enter into the contracts
in question.
SUMMARY
The Parks and Wild,life Department may contract
with districts created under $ 59 of Article 16 of the
Constitution for the furnishing of water and sewage ser-
vices and may pay a proportionate share of the cost ,of
new faciCities without violating 5 51 of Article 3 of the
Constitution.
ry truly yours,
Attorney General of Texas
DAVID M. KENDALL, Chairman
Opinion Committee
P. 527