Eouoreblc John Owens                    opinion No.   St+654
Hendereon County Attorney
County Attorney’s    Officr             80: Validity of a conveysncc of
Athens, Texas     75751                 reel property by the Athens
                                        Municipal Wetcr Authority

Dcet l4x.Oueua:

     The Athens Muaieipel Water Authority is a conservation and
reclamation district creetad in 1957 pursuant to article XVI, section
59, of the Texas Constitution. Acts 1961. 57th Leg., ch. 157, at
286-88; Atts 1957, 55th Leg., ch. 142, et 311-19 (codified as article
8280-196. V.T.C.S., which has neither been repealed nor carried into
the Water Code). Pou provide us with the following information
regarding the authority:

             The Athens Municipal Water Authority owns Lake
          Athene. a 1.500 ecre lake,.crcated for the purpose
          of supplying voter to the city of Athens. The
          Athens Municipal Water Authority owns in fee
          simple all lend surrounding Athens lake up to the
          448 ft. mean sea level line. The 448 mean sea
          level line repressnts en elevation of a 'hundred
          year ' flood level. The actual water lina with
          respect to Lake Athens is 440 ft. mean sea level.

             On or about May 2, 1985. it was brought to the
          attention of the Athene Municipel ,Water Authority
          Board that [property ovncrs] had constructed their
          residence on a lot abutting the water authority's
          property, and so situated their house as to cross
          the 448 061 line. thereby cncroeching upon meter
          authority property. The total lncroacbmeat by the
          [property owner] amounts to 592.43 sq. ft.     The
          results of en on the ground survey made by a
          registered public surveyor are attached to this
          brief as Exhibit ‘A.’   and incorporated herein by
          reference.    Despite the fact that the total
          encroachment amounts to 592.42 sq. ft.,        the
          [property owner] exceeded the 448 msl by only 8
          inches vith respect  to elevation.



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honorable John Ovens - Page 2   (J&654)




You inform us that there are now several other property owners who
have erected structures that encroach upon the property of the
authority.   Accordingly, you ask three questions regarding the
authority of the water authority to convey to the property ovners
those parcels of the authority's real property upon which the property
oyIIersconstructed their homes.

     You first ask vhether the vater district has authority to convey
outright to the property owners the subject parcels. You suggest that
section 54.214 of the Water Code empowers the authority to convey any
property deemed surplus by the authority's governing board.         We
disagree. because the Athens Municipal Water Authority is not governed
by chapter 54 of the Water Code. Chapter 54. enacted in 1971, governs
municipal utility districts created under that chapter; the act
creating the Athens Municipal Water Authority, on the other hand,
specifically provides that the authority has those pavers conferred by

            the aforesaid constitutional provision [article
            XVI. eection 59. of the Texas Constitution1 as
            weli as those conferred by the General Law of
            the State relating to water control and improve-
            ment districts vh,erein not in CIonflict with the
            provisions of this act. (Emphasis added).

Acts  1957. 55th Leg., ch. 142. 51, at 311; see also Water Code
150.051. Accordingly~,we must turn to chapter 51 of the Water Code,
which governs water control and improvement districts, and chapter 50,
which sets forth provisions generally applicable to general lav
districts; as well as to the statutes creating the authority.

       The act creating the authority empovers it to do the following:

                Sec. 4. The Authority is hereby empovered (a)
            to develop, construct or purchase dams, re-
            servoirs, underground and other sources of water.
            The Authority is empowered to construct or
            purchase all works, plants, and other    facilities
            necessary or useful for the purpose of providing a
            source of water supply and storing, processing
            such vater and transporting and distributing it
            for municipal, domestic and industrial purposes.
            The Authority shall at all times have power to
            develop or purchase additional underground or
            other  sources of water and to improve, enlarge and
            extend its water system. The Authority is also
            authorized to make contracts for the purchase of
            water; (b) in order to preserve and protect the
            purity of the waters of the state and of the ~~-
            Authority and conserve and reclaim said vaters for
            beneficial use by the inhabitants of the Authority



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Ronorable John Ovens - Pege 3      (i-654




            to provide all plants, works, facilities and
            appliances incident to or helpful or necessary to
            the   collection,   transportation.   processing,
            disposal and control of all domestic, industrial
            or commune1 wastes. whether of fluids, solids or
            composites.

Acts 1957, 55th Leg., ch. 142. 14. at 313.       The act further empowers
the authority to acquire property:

               Sec. 5. For the purpose of carrying out any
            paver or euthority conferred by this Act the
            Authority shall have the right to ecquire laud end
            easements, by condemnation is the manner provided
            by Title 52, Revised Civil Statutes, as amended,
            relating to eminent domain. The amount of and
            character of interest in land and easements thus
            to be acquired shell be determined by the Board of
            Directors. In the event    that the Authority, in
            the exercise of the power of eminent domain or
            power of relocation, or any other power granted
            hereunder, makes     necessary   the   relocation,
            raising, rerouting or changing the grade of,
            or altering the construction of eny highway.
            railroad, electric transmission line or. pipe-
            line or telephone or telegraph properties and
            facilities, all     such   necessary   relocation,
            raising,   rerouting,   changing   of   grade   or
            alteration of construction shall be accomplished
            at the sole expense of the Authority.

Acts  1957. 55th Leg., ch. 142. 15, at 313-14. Neither the act
creating the Authority nor the subsequent 1961 amendatory act empower
it to convey real property, but section 51.191 of the Water Code does.

       Section   51.191 of the Water Code provides that

            [t]he board may sell at a public or private sale
            any property or land ouned by the district which
            is not required to carry out the plans of the
            district.

The "plans" to which section 51.191 of the Water Code refers are the
"plans" for the operations of the district and for construction of
improvements that the governing board may adopt pursuant to sections
51.122 and 51.124 of the Water Code.

     We are required to interpret section 51.191 of the Water Code in
a way which




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Eonorable John Ovene - Page 4   (lW654)




         expresses only the will of the makers of the law,
         not forced nor strained, but simply such as the
         words of the law in their plain sense fairly
         sanction and will clearly sustain.

Railroad Commission of Texas v. Mller,     434 S.W.2d 670, 672   (Tex.
1968).

         The language [of the statute] appears to us to be
         plain end unambiguous and its meaning clear    and
         obvious.   We can only enforce the statute      as
         vritten end have no right to create or to find en
         ambiguity vhere none exists in order to call into
         play generally recognized rules which ore used es
         aids to the construction of ambiguous statutes.

Col-Tex Refining Co. v. Railroad Commission of Texas, 240 S.W.Zd 747,
750 (Tex. 1951). Section 51.191 of the Water Code clearly confers to
the authority the paver to sell, either by public or by private sale,
any property or land ovned by the district that is not required to
carry out the plans of the district. The question as to vhether any
given parcel is required to carry out any plan adopted by the board is
a matter of fact, the determination of vhich is inappropriate in the
opinion process.

     With your second question, you ask about the effect of permitting
e property owner ~to raise the current elevation on his property so
that the 448 foot sea level line is then shifted sufficiently lake-
verd to fali outside the boundary of his property.  You inform us that
real property located at or belov the 448 foot mean sea level line
falle vithin the loo-year flood plain. You further inform us that the
boundaries of the land that the district ovns surrounding the lake is
determined. not by reference to the elevation from mean sea level, but
by reference   to the more conventional legal description/metes and
bounds method. If the property ovner did in fact raise the llevetion
of the subject parcel, such an event would have no effect upon the
ovnership of the property; title would still remain vith the district.

     We understand you then to ask vhather section 51.191 of the Water
Code empowers the authority to convey property that does not fall
within the loo-year flood plain. Again. the issue as to whether any
given parcel of real property may properly be required by the district
to carry out its plans is a matter of fact, the determination of which
is inappropriate in the opinion process. We cannot say as a matter of
law vhether. in this particular situation, parcels of land that are
ovned by the district end that do not fall vithin the loo-year flood
plain, are required by the authority to carry out plans adopted by the
board. We only note .that the Water. Code~.in.stE~_io~_Sl,~?~__conf_e_rs__
power to the authority’s board to convey property that is not required




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Aonorable John Ovens - Page 5   (m-654)




for  the cerrying out of the board's plans. You do not ask and
accordingly we do not address any issues regarding potential lisbility
for constructlou in flood hazard areas nor any possible effect of the
National Flood Insurance Act of 1968. 42 U.S.C. 554001 through 4128
(1982). We discuss only the powers conferred by Texas statutes to the
authority's governing board.

     With your third question, you ask whether the district vay enter
into e long-term lease of the property at issue with the affected
property owners. Section 51.182 of the Water Code sets forth the
folloviug:

             (a) A district may lease to any person, firm.
          or corporation which is a bona fide water customer
          of the district any of its river pump stations.
          conveyance canals, off-channel reservoirs, re-
          servoir pump stations, water mains. water treat-
          ment plants, or other facilities used in connec-
          tion vith them. The lease may include any of the
          district's land which is appropriate to the
          utilisation of the leased facilities, including
          but not limited to land acrquired by eminent
          domain.

              (b) The board and the lessee shall agree on
          the form of the lease end its terms, conditions.
          provisions, and stipulations: hovever, the dura-
          tion of the lease shall not be longer than the
          duration of the water contract        between the
          district and the lessee under the primary term of
          the voter contract and any renewal or extension of
          it.

            (c) After a lease to a water customer is
         authorized by the board, the lease shall be
         executed by the president or vice president of the
         board and attested by the secretary. The lease is
         valid and effective without any other requirement
         or  prerequisite by the district.        (Emphasis
         added).

     It is clear from an even cursory reading of section 51.182 of the
Water Code that the term “facilities” described in subsection (a) does
not refer to the sorts of small parcels of real property that are the
subject matters of this request. It is clear that the authority may
lease only the land that is “appropriate to the utilisation of leased
facilities.” On the basis of the information that you have submitted
to us, we conclude that section 151.182 of the Water Code does not
empower the authority to lease the small parcels of real property to
the affected property ovners.



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Roaorable John Ovens - Page 6     (JM-654)




     Accordingly, we conclude that section 51.191 of the Water Code
empovers the Athens Municipal Water Authority to sell et a public or
private sale any property or land ovned by the authority chat is not
required for the carrying out of the plans of the district. Whether
the parcels of real property at issue are so required is a matter of
fact, the resolution of which would be inappropriate in the opinion
process. We further conclude. ou the basis of the infomation sub-
mitted to us, that section 51.182 of the Water Code does not ercpover
the authority to lease to the affected property ovners the parcels of
real property that are the subject of this request.

                                SUMMARY

               Section 51.191 of the Water Code evpovers the
          Athens l4unicipal Water Authority to sell at a
          public or private sale any property or land ovned
          by the authority that is not required for the
          carrying out of the plans of the district.
          Whether the percels of real property that are the
          subject matter of this request are so required is
          a matter of fact vhose resolution in the opiuion
          process would be inappropriate. Under the facts
          presented, section 51.182 of the Water Code does
          not empowerthe authority to lease to the affected
          property owners the parcels of real property owned
          by the authority upon which the property ovuers
          constructed improvements.




                                           JIM        MATTOX
                                           Attorney    General of Texas

JACX HIGHTOWER
First Assistant Attorney   General

MARYRlILLgR
Executive Assistant Attorney General

RICK GILPIN
Chairman, Opinion Cosmittea

Prepared by Jim Moellinger
Assistant Attorney General




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