                         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
