                                     May   10,    1990


Honorable   John Whitmire                        Opinion    No. ~~-1173
Chairman
Health And Human Services                        -Re: Authority  of the Spencer
  Committee                                      Road public Utility   District
P.   0.    Box   12068                           to buy land for a public park
Texas State Senate                                (RQ-1814)
Austin, Texas   78711

Dear      Senator    Whitmire:

          You have       asked   us to address      the    following   question:

             May a municipal    utility district,     operating
             under chapter    54 of   the Texas   Water    Code
             contract  for the purchase   of real property    t;
             be used as a public park within the       district
             by making   payments under    the contract     from
             taxes where voters in     the district have     ap-
             proved the same?

      Municipal utility    districts   are  created    under   and
subject to the  authority,   conditions,   and  restrictions     of
article XVI, section 59,    of the Texas Constitution.       Water
Code 5 54.011.

      A municipal    utility district can exercise no        authority
that has    not   been    clearly    granted    by  the   legislature.
 J c
QU'          C                            'r:s, 602 S.W.Zd 262     (Tex.
1980).   The legislature     can only grant such a district         such
powers and     rights that     come   within the    contemplation     of
article XVI,     section 59     (the Conservation     Amendment),     or
other applicable     provisions   of the constitution.      Deason    v.
Oranae Countv Water Control         & Imnrovement   Dist. No. 1,     244
S.W.2d 981 (Tex. 1952).

      In 1980, the Austin     Court of Civil Appeals     considered
whether a municipal    utility district could provide park       and
recreational   facilities   (including a community   center, three
swimming pools, four tennis courts, and a club house)          under
the provisions   of Texas Water Code section 54.201(b)(7).         At
that time, section 54.201 read in its entirety:




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                (a) A district   shall have the    functions,
            powers, authority,   rights,   and duties    which
            will permit   accomplishment   of  purposes     for
            which it was created.

                (b) A district      is authorized     to purchase,
            construct,   acquire,     own, operate,      maintain,
            repair, improve, or       extend inside      and    out-
            side its boundaries       any and     all works,     im-
            provements,     facilities,      plants,    equipment,
            and appliances      p.ecessarv to     accomolish     the
            purooses    of   :its   creatipn      including      all
            works,    improvements,       facilities,       plants,
            equipment,   and appliances      incident,    helpful,
            or necessary    to:

                     (1)  supply water for municipal    uses,
               domestic   uses,   power,   and    commercial
               purposes  and all other beneficial   uses    or
               controls;

                     (2) collect,      transport,     process,
               dispose   of,   and   control   all   domestic,
               industrial,   or communal wastes whether      in
               fluid, solid, or composite     state;

                     (3) gather,   conduct,  divert,    and
               control local storm   water or other  local
               harmful excesses of water in a district;

                        (4)   irrigate    the   land   in a district:

                        (5) alter land elevation              in a     dis-
               trict     where it is needed:

                        (6) navigate    coastal             and      inland
               waters     of the district:   and

                     (7) provide oarks    and  recreational
               facilities   for     e inhabitants    in   the
               district.   (Emphaiis added.)

&g   Acts    1971,   62d Leg.,    ch. 84, at 775.

      Because of the language limiting the district's
authority   to that Qecessary       to accomplish   the purposes    of
its creation,"    and   notwithstanding    the statutory    provision
expressly   authorizing    districts    to  acquire all    facilities
necessary   to "provide parks and recreational       facilities"   for
the inhabitants    in the district,     the court said:




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            We have concluded     that the proposed     facili-
            ties, which include a community      center, three
            swimming pools,    four   tennis courts,     and    a
            clubhouse,    do  not   further    a purpose      of
            section    54.012  of   the   Water   Code   pr   of

            (Emphasis    added.)

IQ.rris Countv Water Control      h m m                   .       V.
3-n                         I    593 S.W.Zd   852, 855 (Tex.    Civ.
APP. - Austin 1980, no      writ); &    Attorney  General   Opinion
H-491 (1975) (recreational      use of waters and forests,     "once
developed   and conserved,"   may be within contemplation    of the
constitution).

      The following      year, in    1981,    this office     was    asked
whether the     construction      of certain     park   and   recreation
facilities   by the Upper      Guadalupe    River Authority,     "on   its
soon to be completed      reservoir,"    would be in furtherance        of
the purposes     for   which    the    district    was   created.      The
"facilities"    were reservoir     areas to be landscaped:       areas to
be made    suitable     for swimming,     parking,     restrooms,     boat
ramps, picnic tables,        lighting,   roads,    and fencing.       (The
resulting   opinion did     not explicitly       confirm that     payment
was to be made      from taxes, but, because         of the holding     of
the opinion, that consideration         is not relevant here.)

      Attorney       General     Opinion    MW-313   (1981)   observed   in that
connection:

                The   reservoir    in  this    case    is     being
            constructed    primarily   to control     and     store
            water on    the Guadalupe     River as    a    surface
            water supply for      the city    of Kerrville,       in
            compliance   with    the constitutional       purposes
            of the district     and the statutory     priorities
            of water    usage.    One  secondary    use    of   the
            reservoir   as enumerated   by the legislature        is
            recreation   and pleasure.

The   opinion   read    the   Rarris  Counts   Water              Control    and
IBID  Vement   District     case   as saying   that              "recreational
facZities    per se" are not prohibited,     but

            are limited by     the standard set      out by    the
            court to-wit:     '[t]he power to construct        re-
            creational   facilities    must be    exercised     to
            further a purpose of        section 54.012     [Texas
            Water Code]    to   be justified     and   constitu-
            tional.'   L      at 854.     The court    had   pre-
            viously stated that '[slection       54.012 of     the
            Texas Water    Code,    entitled   "Purposes    of   a



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Honorable     John   Whitmire   - Page   4   (JM-1173)




            District,"  parallels  the language of   article
            XVI, 5 59(a)(Texas    Constitution).*    &     at
                                           ae of the oww
                                            .   .
            betwee   the recreational   facilities  an d         the
            const iZuti nal nuroo se of the district.           (Em-
            phasis addzd.)

Attorney  General      Opinion MW-313 at 3.   The attorney    general
held construction       of the facilities permissible   because:

                The mrris      Countv W.C.I.D.      #llO    opinion
            prohibited     construction      of   a complex        of
            recreational    buildings     and facilities       which
            were unrelated    to the constitutional        purposes
            of the    district.      It is    our   understanding
            that the facilities      you propose to build         are
            related to a relatively       minor portion of       the
            total reservoir     project and serve to        promote
            the full use and       enjoyment    of the   reservoir
            by the public.      We feel that the improvements
            you propose are ordinary and necessary           to the
            proper control, management,         and regulation     of
            public    reservoirs     and   lakes,    and    are    in
            furtherance    of the constitutional       purposes    of
            'the   \t
                   co                                       Of   all
            natural .resources      0: this VState       including
            the control, storing,        preservatibn    and    dis-
            tribution   of . . . the waters        of its    rivers
            and streams,     for irrigation,       power and     u
                                                                art.


Id.   at 4.

      Taken together,    the   1980 Harris    Countv Water      Control
  d   Imorovement    District            and   the    1981     attorney
&eral's     opinion teach that%:      provision    of facilities     for
recreation   and   pleasure    is not   among   the     constitutional
purposes   for which    water districts   may   levy and expend        ad
valorem    taxes,   but   that   the  provision      of   recreational
facilities   may be considered    a proper secondary      activity   for
a district     if  furnishing   them  promotes     a    constitutional
purpose.

      In 1985, chapter 54       of the Water     Code was amended      to
add subchapter    I.    At the same     time, section      54.201(b)(7)
was changed by adding the words, lUsubject to subchapter             I of
this chapter"    to the     provision   that    authorized     municipal
utility   districts      to   provide     parks    and     recreational
facilities.     Section     54.501    was   amended    to   delete    any
legislative   authority     for   municipal   utility     districts    to



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     Honorable-John        Whitmire      - Page    5 (JM-1173.).




.-   issue bonds for the purpose   of providing                 parks   and    recrea-
     tional facilities.  m     Acts 1985, 69th                  Leg.,   ch.   100,   at
     538.

           Section 54.771(a)(2)     of the new subchapter     I provisions
     declares   it to be the policy of the state "to encourage          the
     people in municipal    utility    districts   to provide parks      and
     recreational   facilities    for their    use and    benefit.n     1zf,
     Parks & Wild. Code Of 25.001 et sea.         Section 54.773     states
     that in addition to the other purposes        for which a district
     is created,    a district      is  created    for   the   purpose    of
     developing   and maintaining    recreational   facilities.     It also
     states that    a district    is "authorized     to accomplish     this
     purpose as provided    in this subchapter."

           In apparent anticipation    of constitutional     challenge,
     subsections   (a)(3), (a)(4), (a)(5),    and subsection    (b),  of
     section 54.771, subchapter    I, assert:

                   (a)         The   legislature    finds   that:

                   .   .   .    .

                       (3) within constitutional    limitations,
                   the power   to  enact laws   vested    in  the
                   legislature  by Article III, Section 1,      of
                   the Texas Constitution  is supreme:

                       (4)  there is    no constitutional      inhi-
                   bition that would prohibit the legislature
                   from authorizing     municipal    utility    dis-
                   tricts   to   acguire,    own,   develop,    con-
                   StNCt,    improve,. manage,      operate,      and
                   maintain  parks    and   recreational     facili-
                   ties; and

                       (5) the general   legislative   power   is
                   adequate to support the enactment    of   this
                   subchapter
                     . .       without ref rence   to anv    sne-
                   cific constitutional  a%horizatioq.

                  (b) This     subchapter     is   cumulative      of
              other laws governing       municipal   utility     dis-
              tricts and is not      limited by a provision        of
              any   other   law.     This    subchapter     provides
              complete authority      to   a municipal       utility
              district   to develop and maintain       recreational
              facilities.     (Emphasis added.)

           The    legislature   cannot    overturn    by   declaration    or
     enactment    a construction     of   the   constitution     previously
     pronounced    by the supreme    court.    Milam Countv v.     Bateman,




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Honorable     John   Whitmire   - Page    6   (JM-1173).




54 Tex. 153 (1880); gee also                  ae er v. u         76 S.W.2d
1025 (Tex. 1934); 67 Tex. Jur. %               STatutes  8 156'at 789.

      Prior to the enactment        of   the subchapter     I "parks     and
recreation"    provisions     respecting      municipal     utility     dis-
tricts, the Texas Supreme Court delineated             the authority       of
the legislature      to delegate       power to    a municipal      utility
district   created pursuant       to article      XVI, section      59,    of
the Texas Constitution.          In Deason v.      Oranae Countv       Water
Control & Imor      ement Dist.               the Texas Supreme        Court
had before it ~vlegislative'e%%nt               declaring    that    "water
control and improvement       districts     now existing,    or hereafter
to be created, may include          in their purposes      and plans     all
works, facilities,      plants, equipment,      and appliances      in   any
and all manner      incident to,       helpful or     necessary    . . . to
purchase,    own,    and    operate     fire-fighting      equipment     and
appliances."     In another case, Parker v. San Jacinto              Countv
Water Control      h Imnrovement       Dist,    273 S.W.2d      586    (Tex.
1954), the statute at issue delegat;d           to a water control and
improvement    district     the power      to install     a sanitary     and
storm sewer disposal      system.

      Both cases concerned    the issuance of tax bonds, and      in
both   cases   the  statutory    provisions    were    attacked   as
unconstitutional.     In   the   Deason   case,    concerning   fire
fighting equipment,   the court held:

            Section    59(a) . . . contAns          no    language
            which would support a holding that the people
            in enacting the amendment       contemplated     that a
            water   control      and     improvement      district
            created for     the   purpose of      conserving     and
            developing    the    natural    resources     of     the
            district would      have   the    power    to  provide
            fire-fighting    equipment    and appliances     for   a
            town within said district.

Deason   at 984.      In the Parker      case,   the   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 hydrological     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




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     Honorable     John   Whitmire     - Page    7   (JM-1173)




                 public right    and duty       under   the   Conservation
                 Amendment.

     Parker   at 586.

           The difference     in the results     of the two cases is        ex-
     plained by    the observation       of the    peason court      that   the
     fundamental   purpose in construing       a constitutional      provision
     is to ascertain     and give effect to the intent of the framers
     of   the   constitution.       Although    the    incidental     use     of
     already-owned    property     belonging    to a water       control    and
     improvement   district    for park and recreational        purposes    may
     be condoned when it aids        the accomplishment       of a Conserva-
     tion   Amendment     purpose,      the   constitution      contains      no
     language which would support a holding that the people,                  in
     enacting    article     XVI,   section    59,    contemplated     that    a
     municipal    utility     district    created     for   the   purpose     of
     conserving   and    developing     the   natural     resources    of   the
     district would have the power to use taxes to provide                parks
     and recreation     facilities   unrelated    to the conservation       and
     development     of   natural    resources.      Har 's
                                                     e
     Control and Imorovement       District,   sunra.

           Information   accompanying     your request      for an   opinion
     indicates   that   the   request    is prompted     by   the   wish   of
,-
     Spencer Road Public      Utilit    District,     a municipal    utility
     district   in Harris   County, 1 "to acquire       some six acres     of
     land within its boundaries       to develop and maintain      a park."
     You have also supplied      information    indicating   that the    park
     would include playgrounds,      volleyball     and basketball   courts,
     picnic tables and grills, and a jogging trail.            In light    of
     that information,    we need     not consider whether a municipal
     utility district    could    use taxes     to acquire    land for the
     limited purpose     of conservation        and   development    of   the
     natural resources    contained    therein.

           We are constrained   to advise you that, in our      opinion,
     a municipal  utility district,    operating  under chapter 54     of
     the Texas   Water Code    may not   use taxes    to purchase    real
     property  for the independent   purpose of having it used as        a
     public park and    developed  recreational   area,   and that    the
     language of subchapter    I of chapter 54 is not to be given        a
     reading that would contradict      or overrule the    construction




           1. The   Spencer           Road   Public      Utility  District   was
     created by Acts 1971,           62d Leg., ch.      699, at 2285.




                                            p. 6189
Honorable John Whitmire - Page 8    (JM-1173)




given article XVI, section 59, of the Texas Constitution     by
the Supreme Court of Texas.2




                         SUMMARX
             A municipal   utility district    operating
          under chapter 54 of the Texas Water Code may
          not purchase real property for the indepen-
          dent purpose of having it used as a public
          park.   The language of subchapter      I   of
          chapter  54 is    to be    given a     reading
          consistent with the purposes of article XVI,
          section 59 of the Texas Constitution.

                                     Very ItNly   y



                                     TIM      MATTOX
                                      Attorney General of Texas

MARYKKLLER
First Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

XENEL   -hW?GS
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by BNCe  Youngblood
Assistant Attorney General




     2. Following the supreme court's holding     in peason
that the constitution did not permit the legislature     to
delegate to municipal utility districts the power to use
taxes to provide    fire fighting facilities within     the
district, article XVI, section 59 of the constitution   was
amended by the people to allow it. m        H.J.R. 42, Acts
1977, 65th Leg., at 3374: Acts 1979, 65th Leg., Table 2,
Votes on Amendments to Constitution, at 3267. That avenue
is also open, of course, with respect to parks.




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