                                         The Attorney          General of Texas
                                                         December 31, 1982
MARK WHITE
Attorney General

                                        Mr. John W. Millican                  Opinion No. w-593
Supreme      Court Building
                                        Acting Executive Director
P. 0. BOX 12546
Austin.    TX. 76711- 2546
                                        Texas State Soil and Water            Re: Whether a soil and water
512,4752501                                Conservation Board                 conservation    district    has
T&x      9101674-1367                   P. 0. Box 658                         authority under chapter 201 of
Telecmier      5121475-0266             Temple, Texas   76503                 the Agriculture Code to serve
                                                                              as a central distribution point
1607 Main St.. Suite 1400
                                                                              for landowners to purchase
Dallas. TX. 75201.4709                                                        fish to stock fish ponds
2141742-6944
                                        Dear Mr. Millican:
4624 Alberta       Ave., Suite    160
El Paso. TX.       799052793
                                             You have requested our opinion as to whether a soil and water
915/533-3464                            conservation district is authorized to serve as a central distribution
                                        point for landowners to purchase fish and, in addition, whether a
                                        district may charge a fee therefor.
1220 Dallas Ave., Suite          202
Hous,~,    TX. 77002.6966
7131650-0666
                                             Soil and water conservation districts are created by chapter 201
                                        of the Texas Agriculture Code. With regard to such districts, the
                                        legislature has said, in section 201.001:
606 Broadway,        Suite 312
Lubbock,  TX.       79401.3479
                                                     (c) In order to conserve soil resources and
606,747.5236
                                                 control and prevent soil erosion, it is necessary
                                                 that land-use practices contributing to soil waste
4309 N. Tenth, Suite S                           and    soil  erosion may    be   discouraged and
McAlten,     TX. 76501-1665                      discontinued, and appropriate soil-conserving
5121662.4547
                                                 land-use practices be adopted and carried out.
                                                 Among the procedures necessary for widespread
200 Main Plaza, Suite 400                        adoption are engineering operations such as the
San Antonio,  TX. 76205.2797                     construction of terraces, terrace outlets, check
512/225-4191                                     dams, dikes, ponds, ditches, and the like; the
                                                 utilization of strip-cropping, lister furrowing,
An Equal       Opportunity/                      contour cultivating, and contour furrowing; land
Affirmative      Action     Employer             irrigation; seeding and planting of waste,
                                                 sloping,    abandoned,   or   eroded    lands   to
                                                 water-conserving and erosion-preventing plants,
                                                 trees, and grasses; forestation and reforestation;
                                                 rotation of crops, soil stablization with trees,
                                                 grasses, legumes, and other thick-growing, soil-
                                                 holding crops, retardation of runoff by increasing
                                                 absorption of rainfall; and retirement from
                                                 cultivation of steep, highly erosive areas and
                                                 areas now badly gullied or otherwise eroded.



                                                               p.    2204
Mr. John W. Millican - Page 2   (Mw-593)




            (d) It is the policy of the legislature to
         provide for the conservation of soil and soil
         resources of this state and for the control and
         prevention of soil erosion, and thereby to
         preserve natural resources, control floods,
         prevent impairment of dams and reservoirs, assist
         in maintaining the navigability of rivers and
         harbors, preserve wildlife, protect the tax base,
         protect public lands, and protect and promote the
         health, safety, and general welfare of the people
         of this state, and thus to carry out the mandate
         expressed in Article XVI, section 59a, of the
         Texas Constitution. It is further declared as a
         matter of legislative intent and determination of
         policy   that   the   agencies   created,   powers
         conferred, and activities contemplated in this
         chapter for the conservation of soil and water
         resources and for the reduction of public damage
         resulting from failure to conserve those natural
         resources are supplementary and complementary to
         the work of various river and other authorities in
         this state and to other state officers, agencies,
         and districts engaged in closely related projects,
         and shall not duplicate or conflict with that
         work.

     You indicate that a number of districts have recently begun
programs to encourage landowners to properly manage and stock farm
ponds. You state:

         The basic approach is for soil and water conserva-
         tion districts to consolidate pondowners' requests
         for fish and arrange for a licensed fish producer
         to deliver needed fish to the pondowners at a
         central location.    In no case are the fish
         produced or held by the districts. In some cases
         the soil and water conservation districts may add
         a handling fee to cover their expenses associated
         with the program.

Basically, the district acts to "collect orders and serve as a central
distribution point for landowners to purchase fish from fish producers
licensed by the State of Texas for stocking their individual farm
ponds."

     Section 201.102 of the Agriculture Code provides:

            A   conservation district  may  lXlrl?y out
         preventive and control tlteasllreswithin its
         boundaries, including engineering operations,
         methods of cultivation, growing of vegetation,



                                 p. 2205
Mr. John W. Millican - Page 3      (Mw-593)




          changes in the use of land, and measures listed in
          Section 201.001(c) of this code. The conservation
          district may carry out the measures on any land
          that is owned by the state or a state agency with
          the cooperation of the agency administering and
          having jurisdiction of the land. If the land is
          owned by another person, the conservation district
          m=Y carry out the measures on obtaining the
          consent of the owner or occupier or the necessary
          rights or interests in the land.

An administrative or political subdivision of course has only those
powers expressly granted to it by statute or necessarily implied
therefrom. Stauffer v. City of San Antonio, 344 S.W.2d 158 (Tex.
1961); Attorney General Opinions H-897 (1976); M-1131 (1972).
Nevertheless, we believe that, if a district's board of directors
determines that the fish stocking program is a necessary "preventive
and control measure" under section 201.102, it is authorized to
implement the program as you have described it. Constructing a farm
pond and stocking it with fish certainly constitutes a "change in the
use of land" authorized by that provision.

     As to the imposition of a handling fee by a district, it is well
established that, unless a fee is provided by law, none may lawfully
be charged. Attorney General Opinions H-796 (1976): H-669 (1975):
n-443 (i974); V-1426. (1952). See Nueces County v."Currington. 162
S.W.2d 687 (Tex. 1942); McCallarCity    of Rockdale, 246 S.W. 654, 655
(Tex. 1922). We conclude that under the facts presented a soil and
water conservation district may not impose a handling fee for serving
as a central distribution point for the purchase of fish to stock farm
ponds. cf. Agric. Code §201.105.

                             SUMMARY

            If the board of directors of a soil and water
         conservation district determines that a fish
         stocking program is a necessary "preventive and
         control measure" under section 201.102 of the
         Agriculture Code, it may implement such a program
         as described. A district is not authorized to
         impose a handling fee therefor.




                                         MARK      WHITE
                                         Attorney General of Texas

JOHN W. FAINTER, JR.
First Assistant Attorney General



                                   p. 2206
Mr. John W. Millican - Page 4   (?.lW-593)




RICHARD E. GRAY III
Executive Assistant Attorney General

Prepared by Rick Gilpin
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Steve Martin
Jim Moellinger
Bruce Youngblood




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