                             @ffice       of the Eittornep             @eneral
                                            State of PCexa$
DAN MORALES
 .ATTORNEY
       GENERAL                                November 5, 1996

      The Honorable Mike Driscoll                           Opinion No. DM-420
      County Attorney
      Harris County                                         Re: Authority of the Harris County Flood
      1001 Preston, Suite 634                               Control District to provide for recreational
      Houston, Texas 77002-1891                             and environmental improvements under
                                                            Senate Bill 586, Act of May 21, 1993,73d
                                                            Leg., RS., ch. 409, 1993 Tex. Gen. Laws
                                                            1711, 1711 (RQ-798)

      Dear Mr. Driscoll:

               You ask about the authority of the Harris County Flood Control District (the
      “district” or “flood control district”) under a 1993 amendment’ to its 1937 special law to
      provide for recreational and environmental improvements. The district was created under
      the 1937 law to accomplish the purposes of section 59 of article XVI of the Texas
      Constitution2


             ‘SeeActofh4ay21,1993,73dLeg.,RS.,ch.409.1993Tex.               Gen.Laws 1711.1711.
             ZArticleXVI, section 59 provides in part:

                      (a) The conservation and development of all of the natural resources of this
                State, including the control, storing, preservation and distribution of its storm
                and flood waters. the waters of its riven and streams, for irrigation, power and
                all other useful purposes, the reclamation and irrigation of its arid, semi-arid and
                other lands needing irrigation, the reclamation and drainage of its overtlowed
                lands, and other lands needing drainage, the conservation and development of its
                forests, water and hydra-electric power, the navigation of its inland and coastal
                waters, and the preservation and conservation of all such natural resources of the
                State are each and all hereby declared public rights and duties; and the
                Legislatureshall pass all laws as may be appropriate thereto.
                     (b) There may be created within the State of Texas, or the State may be
                divided into, such number of conservation and reclamation districts as may be
                determined to be essential to the accomplishment of the purposes of this
                amendment to the constitution, which districts shall be governmental agencies
                and bodies politic and corporate with such powers of govemment and with the
                authority to exercise such rights, privileges and functions concerning the subject
                matter of this amendment as may be conferred by law.
                     (c) The Legislature shall authorize all such indebtedness as may be
                necessary to provide all improvements and the maintenance thereof requisite to
                the achievement of the purposes of this amendment, and all such indebtedness
                may be evidenced by bonds of such conservation and re&mation districts, to be
The Honorable Mike Driscoll - Page 2                 (DM-420)




            including the control, storing, preservation and distribution of the
            storm and flood waters, and the waters of the rivers and streams in
            Harris County and their tributaries, for domestic, municipal, flood
            control, irrigation and other useful purposes, the reclamation and
            drainage of the overflow land of Harris County, the conservation of
            forests, and to aid in the protection of navigation on the navigable
            waters by regulating the flood and storm waters that flow into said
            navigable streams.
Act of May 10, 1937, 45th Leg., R.S., ch. 360, 9 1, 1937 Tex. Gen. Laws 714, 714.
Under the 1937 law, the district, whose governing body is the Harris County
Commissioners Court, is authorized, with voter approval, to issue bonds and to collect
taxes to service them. Id. $5 1,3-7, at 714,716-18. A 1947 law authorized the district to
impose, with voter approval, a maintenance and operations tax as well. Act of
June 4,.1947, 50th Leg., R.S., ch. 407, 1947 Tex. Gen. Laws 952, 952.

         The 1993 legislation you ask about, Senate Bill 586, provides in pertinent part:

            Recreational and Environmental Improvements

                 (a) The Harris County Flood Control District, in connection
            with flood control facilities and projects, may provide for or
            participate in the development, operation, or maintenance of:
                      (1) linear parks along drainage courses mainmined and
                  operated by the district;

                       (2) hike and bike trails;
                      (3) nonenclosed recreational facilities, including game fields
                  and playgrounds; and




            issued under such regulations as may be prescrii by law and shall also,
            authorizethe levy and collectionwithin such districtsof all such taxes,equitably
            distriiuted, ss may be rmsary for the paymentof the interestand the creation
            of a sinking tint6 for the paymentof such bends;and also for the maintenanceof
            such districts and hnprovetnents,and such indebtednessshall be a hen upon the
            property assessedfor the payment thereofi provided the L..egislatnreshall net
            authorizethe issnanceof any bonds or providefor any indebtednessagainst any
            reclantation district unless such proposition shall first be submitted tc the
            qnaliftedpropertytax-payingvotersof suchdistrictand the propositionadopted.
          A new subsection (f) was added to article XVI, s&ion 59 in 1978 to specitically provide that
districts may engage in fire-fighting activities and issue bonds for such purposes. See H.R.J. Res. 42, 5 2,
65th Leg., RS., 1977 Tex. Gen. Laws 3374 (1978).




                                                     p.   2336
The Honorable Mike Driscoll - Page 3           W-420)




                   (4) other environmental improvements, including public or
              private nature reserves or wildlife habitat restoration and
              improvement projects.

               (b) In order to carry out the purposes of Subsection (a) of this
          section, the district may execute contracts or enter into cooperative
          agreements with:

                  (1) the federal government, a federal agency, or a federally
              sponsored organization;
                   (2) the state, a state agency, a political subdivision of the
              state, or any unit of local government;
                   (3) a nonprofit corporation or foundation;
                   (4) a private individual or corporation; or

                  (5) a public       service    organization    or   neighborhood
              organization.

              (c) The district may use property, rights-of-way, easements, or
         other land owned or managed by or otherwise available to the district
         for purposes of Subsection (a) of this section.

              (d) The use by the district of any property owned or managed
         by or otherwise available to the district for the purposes of
         Subsection (a) of this section is determined to be consistent with the
         use of that property for flood control purposes if the improvements
         do not significantly impede the flow of floodwaters or reduce the
         carrying capacity of the drainage facilities of the district.

               .

               (f~ The district may spend its own Cmds for the purposes of this
         section. The capital cost to the district of parks, trails, facilities, and
         improvements under this section may not exceed five percent of the
         total cost of the flood control facilities and projects with which the
         improvements are associated.         This section does not limit the
         expenditure of tinds from sources other than taxes collected by the
         district.
Act ofMay 21, 1993,73d Leg., RS., ch. 409, § 1, 1993 Tex. Gen. Laws 1711, 1711-12.




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The Honorable Mike Driscoll - Page 4         (DM-420)




L    The District’s Authority to Use Tax and Tax Bond Funds to Make
     Recreational Improvements.
       You ask frrst:

          Does Harris County Flood Control District have the authority, by
          virtue of Senate Bill 586, to use tax and bond revenues for
          development and maintenance of recreational improvements
          described in the statute without an election approving expenditures
          for such purposes?

       A. Judicial and Attorney General Opinions.

        We begin our analysis with a review of relevant judicial and attorney general
opinions. A 1952 Texas Supreme Court opinion, Deason v. Orange County Wuter
Control & Improvement District No. I, 244 S.W.2d 981 (Tex. 1952), ruled that despite
specific authorization in the applicable general law statutes a water control and
improvement district did not have the authority to expend bond funds for fire-fighting
equipment since the constitutional authorization for the district -- article III, section 52
and article XVI, section 59 -- did not refer to, and the voters in adopting the amendments’
language would not have contemplated, the district owning and operating such equipment:

          Both constitutional amendments specify the circumstances and
          purposes for which water control and improvement districts may be
          organized and the Legislature is without power to add to or
          withdraw from the circumstances and purposes specified.
Deason, 244 S.W.2d at 984,

        Two years later the statute at issue in Deason was again before the supreme court
in Parker v. San Jacinto County Water Control and Improvement District No. I, 273
S.W.2d 586 (Tex. 1954). The plaintiffs in Parker sought to enjoin the district from
spending tax bond funds to install a sanitary and storm sewer disposal system as
specifically authorized by a statute. They argued, citing Deuson, that the sewage system
was not within the constitutional authorization for the district. The court disagreed:

               Plaintiffs’ attack upon the statute fails because the power to
          erect a sewerage disposal plant is clearly within Sec. 59a, Art. 16,
          Texas Constitution. The water brought into the area 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 the State is a public right and duty under the Conservation
          Amendment.        .

Parker, 273 S.W.2d at 586.



                                             p.   2338
The Honorable Mike Driscoll - Page 5          (DM-420~)




        Specifically with regard to a district’s authority to provide recreational facilities,
Attorney General Opinion H-491 addressed the constitutionality of provisions in section
54.201 of the Water Code:
              (a) A district shall have the functions, powers, authority, rights,
          and duties which will permit accomplishment of the purposes for
          which it was created.
               (b) A district is authorized to purchase, construct, acquire, own,
          operate, maintain, repair, improve, or extend inside and outside its
          boundaries any and all works, improvements, facilities, plants,
          equipment, and appliances necessary to accomplish the purposes of
          its creation, including all works, improvements, facilities, plants,
          equipment, and appliances necessary to accomplish the purposes of
          its creation, including all works, improvements, facilities, plants,
          equipment, and appliances incident, helpfil, or necessary to:

                 .

                    (7) provide parks and recreation facilities for the inhabitants
               of the district.

Noting the supreme court’s holdings in Deuson and Purker, and citing Attorney General
Opinion C-436, which had found that recreational purposes would “undoubtedly” be
included in the authority granted by article XVI, section 59, the opinion concluded:

               Where, as here, it is the stated purpose of the constitutional
          amendment to provide among other things for the conservation and
          development of natural resources including the development of
          forests and storing of the waters of the State’s rivers and streams for
          all useful purposes, we do not believe that we can say, as a matter of
          law, that the use of these resources such as waters and forests, once
          developed and conserved, for recreational purposes was not within
          the contemplation of the people who adopted the amendment.

Attorney General Opinion H-491 (1975) at 4.

         Subsequently, a 1980 court of appeals opinion specifically found that provision of
recreational facilities under section 54.201, at least the ones at issue -- a community
center, swimming pools, tennis courts and a clubhouse - did not further a purpose of
article XVI, section 59. Harris County Water Control and Improvement Dist. No. 110 v.
Texas Water Rights Comm’n, 593 S.W.2d 852 (Tex. Civ. App.--Austin, 1980 no writ)
(hereinafter ‘Harris County WCID #IlO”). Although the court stated that the “sole
question is whether the proposed recreational facilities are permissible pursuant to acts of
the Legislature, and not whether an act of the Legislature is valid,” id. at 855, it concluded




                                               p.   2339
The Honorable Mike Driscoll - Page 6         @I-420)




that the proposed facilities “do not fiuther a purpose of Section 54.012 of the Water Code
or of Article XVI, § 59 of the Texas Constitution.” Id.

         Soon thereafter, in Attorney General Opinion MW-313, this office, addressing
whether a river authority could provide park and recreational facilities, noted that the
Harris Counfy WCID #110 decision had “apparently created doubts as to whether the
river authorities of this state can construct recreational facilities on reservoirs.” Attorney
General Opinion MW-313 (1981) at 2. It distinguished Hurt-is County WCZD #I10 as
follows:

           The Harris County W.C.I.D. #l 10 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 ltntherance of the
           constitutional purposes of “the conservation and development of all
           natural resources of this State, including the control, storing
           preservation, and distribution of.      the water of its rivers and
           streams for irrigation, power and all other useful purposes.” Tex.
           Const. art. XVI, 9 59(a).

Id. at 4. Attorney General Opinion MW-3 13 did not refer to Deason.

          Some years later, this office dealt with the question whether a chapter 54 municipal
utility district could purchase real property in the district with district tax money for use as
a public park pursuant to 1985 amendments to chapter 54 of the Water Code in Attorney
General Opinion JM-1173. The amendments, “in apparent anticipation of constitutional
challenge,” Attorney General Opinion Jh4-1173 (1990) at 5, state that they provide
“complete authority to a municipal utility district to develop and maintain recreational
facilities,” that no constitutional inhibition prohibits the legislature from authorizing such
district to develop and operate such facilities, and that the “legislative power is adequate
to support the enactment of this subchapter without reference to any specific
constitutional authorization.” Water Code 5 54.771. Quoting the language set out above
from Attorney General Opinion MW-3 13, Attorney General Opinion JM-1173 stated:

                Taken together, the 1980 Harris County Wuter Control and
           Improvement District case and the 1981 attorney general’s opinion
           teach that the 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




                                                  p.   2340
The Honorable Mike Driscoll - Page 7         (DM 420)




           facilities may be considered as a proper secondary activity for a
           district iffbrnishing them promotes a constitutional purpose.
Attorney General Opinion M-1 173 (1990) at 6. Stating that “the fundamental purpose in
construing a constitutional provision is to ascertain and give effect to the intent of the
framers,” id. at 7 (citing Deuson, 244 S.W.2d at 981), this office went on to opine that
“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.” Id. The opinion concluded that the
municipal utility district could “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 given article XVI, section 59, of the Texas Constitution by
the Supreme Court of Texas.” Id. at 7-8.

         A few months later, Attorney General Opinion Ih4-1259 responded to a request
for clarification of Attorney General Opinion IM-1173 regarding whether “a municipal
utility district created pursuant to Article XVI, section 59  and operating under chapter
54 of the Texas Water Code” could “use revenue notes to finance the acquisition of park
land and park facilities.” Attorney General Opinion JIvI-1259 (1990) at 1. Attorney
General Opinion Jh4-1259 characterized Attorney General Opinion JM-1173 as “confIned
to the use of tax monies” for the recreational facilities in question there, id. at 3, and
reafErmed the opinion as thus construed. It then spoke of the Deuson holding as follows:

          [G]iven the context of the narrow question before the court in
          Deason, i.e., the authority of a district to issue its bonds, we think it
          a more reasonable reading of the court’s teaching that the legislature
          may only grant to a district the authority to tax and incur
          indebtedness as specified by section 59(c) of article XVI when such
          authority will be used in Furtherance of a constitutionally enumerated
          purpose.
Id. at 4. Reading Deacon as standing for the proposition that the legislature could not
extend the purposes for which taxes and tax bonds could be used beyond those set out in
article XVI, section 59, Attorney General Opinion JM-1259 concluded that the district
could use, as distinct from tax or tax bond timds, revenue notes payable with fees charged
pursuant to specific statutory authorization in Water Code section 54.774 to acquire
recreational facilities. Id. at 10-l 1.

       B. Application of Precedent to Query.

       Deason and Hark County WCID #IlO, as construed in Attorney General
Opinions TM-1173 and Jh&1259, restrict the flood control district from expending district



                                             p.   2341
The Honorable Mike Driscoll - Page 8         (DM-420)




tax or tax bond fbnds for Senate Bill 586 recreational purposes. Although Deuson did not
deal with recreational facilities, it did, as construed by these attorney general opinions,
hold that an article XVI, section 59 district was without authority to spend tax or tax bond
timds for purposes not authorized by that constitutional provision. See Deuson, 244
S.W.2d at 984; Attorney General Opinions JIM-1259 (1990) at 4-5, Jlvl-1173 (1990) at 1,
7. Harris County WCZD# I10 in turn stated, although it was perhaps not necessary to the
ratio decididendi otherwise announced there, that recreational purposes -- at least the
community center, three swimming pools, four tennis courts, and clubhouse at issue --
were not among the purposes of a district created pursuant to article XVI, section 59.
Harris Cmmty WCZD #I10 and Deason thus suggest that such recreational purposes are
not included in the article XVI, section 59 authorization on which the district could
expend tax or tax bond funds. As the objection to such expenditures under these cases is
constitutionally based -- the absence of constitutional authorization for such uses of tax
and tax bond finds -- the restrictions cannot be overcome by a statute, such as Senate Bill
586, purporting to authorize such expenditures. Nor would an election to approve such
expenditures overcome this constitutional impediment.

         On the other hand, the Parker case suggests that environmental measures
authorized by Senate Bill 586 would be more likely to be found within the purposes
authorized by article XVI, section 59 such that the district would be constitutionally
authorized to expend district tax and tax bond funds. We note, however, such
environmental purposes as are authorized by the constitution would most likely be found
to have already been within the district’s authority under its statute prior to Senate Bill
586, given the broad purpose clause of section 1 of the special act quoted above. In that
case the voters would most likely, we think, be deemed to have been on notice under the
existing provisions, at the time they approved district taxes and tax bonds, that the
proceeds might be used for such environmental purposes. In that case, there is no need
for a new election to authorize the use of such fimds for these purposes now. However,
such environmental measures as are not within the contemplation of article XVI, section
59 may not now, under Deuson and the other authorities cited above, be paid for with
district tax and tax bond Curds, even ifthe district purports to hold an election authorizing
such expenditures, given the constitutional impediient to such use of the funds.

         In any case, it is our opinion that while ultimate determination of whether the
district is authorized to pursue a particular recreational or environmental project under
Senate Bill 586 would depend on whether the particular project was within the
constitutional purposes of a district under article XVI, section 59, recreational purposes
under the statute would as a general matter be less likely and environmental purposes
more likely to be found within such constitutional authority. Attorney General Opinions
MW-3 13 and JM- 1173 indicate that the test as to whether a particular project is within the
constitutional authorization is whether it is independent of the purposes of the
conservation amendment or, in contrast, a secondary activity which promotes a
constitutional purpose. A project that is contrary to the purposes of the conservation
amendment or is solely recreational in purpose would not be a permissible use of tax or




                                              p.   2342
The Honorable Mike Driscoll - Page 9          (DM-420)




tax bond funds. The governing body of the district, the Harris County Commissioners
Court, should make the requisite factual determinations, at least in the first instance, in
accordance with this opinion.

IL   The District’s Authority to Use Easements for Recreational and Environmental
     Purposes.

        You also ask “Does Harris County Flood Control District have the power, by
virtue of Senate Bill 586, to use eaSeme& granted for flood control and drainageprior to
the effective date of the statute for the purposes set out in the statute?” (emphasis added)
and “Does Harris County Flood Control District have the power, by virtue of Senate Bill
586, to use easements granted for flood control, drainage, and recreational purposes uf?er
the effective date of the statute for the purposes set out in the statute?” (Emphasis
added).

         We note at the outset that, in part because extraneous factual evidence. as to the
understanding of the parties could be relevant in their construction, this office regains
from attempting to construe contractual instruments such as those granting casements in
attorney general opinions. The test whether an easement acquired by a public body may
be burdened with particular uses, such as the recreational uses provided for in Senate Bill
586, is whether the grantor could have reasonably contemplated such uses as within the
easement at the time he granted it. City of Sweetwater v. McEntyre, 232 S.W.2d 434
(Tex. Civ. App.--Eastland 1950, writ refd n.r.e.); Milam Count v. Akers, 181 S.W.2d
719 (Tex. Civ. App.-Austin 1944, writ ref d w.o.m.). In addition, easements and other
contracts are presumed to refer to the law in force at the time of execution. 14 TFX. JUR.
3D Contracts 3 222 (1981). Rights conferred thereunder may not be altered, substantively
at least, by subsequent amendments to the law. Id. 5 222 at 388 (citing authorities).

        We think it clear that Senate Bill 586 recreutional uses of an easement would
impose substantial additional burdens on a servient estate granted for flood control
purposes -- that is, on use of the property by the general public. Nevertheless, while we
generally agree that easements granted for district purposes before the adoption of Senate
Bill 586 would not include the right to use the property for Senate Bill 586 recreational
purposes, we cannot say as a matter of law that an easement granted the district prior to
Senate Bill 586 could not under any circumstances be construed to include the right to use
the property for such recreational purposes. For example, an easement might expressly
grant to the district the right to use property for all present and tbture lawlid purposes of
the district. Also, as suggested above, some recreational uses might be found to be within
the district’s constitutional authority as well as its statutory authority prior to the adoption
of Senate Bill 586, in which case easement grantors prior to Senate Bill 586 could be
found, on given easement language, to have been on notice that the easement would
include the district’s use of the property for such purposes.




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The Honorable Mike Driscoll - Page 10             (DM-420)




         Similarly, we cannot say as a matter of law that easements granted after the
adoption of Senate Bill 586 necessarily include the right to use the property for Senate Bill
586 recreational purposes. Clearly, the terms of such easements could be expressly limited
to purposes which do not include recreational activities, even where Senate Bill 586 was
in force at the time of the grant. Thus, although easements granted for purposes of the
district generally or even for flood control purposes after the adoption of Senate Bill 586
would, we believe, be more likely to be construed as contemplating use for Senate Bill 586
recreational purposes, ultimate determination of the scope of the easement granted would
require construction of the particular easement and ascertainment of the intent of the
parties, which we cannot undertake in the opinion process. Of course, in light of our
discussion in response to your tirst question, if the particular recreational purpose in
question is not one authorized by article XVI, section 59, an easement acquired with tax
or tax bond t%tds could not, in any case, be used for such purpose.

         With regard to environmental uses of an easement under Senate Bill 586, we again
believe that ultimate determination whether an easement includes the district’s right of use
for such purposes would require construction of the particular easement. In accordance
with our discussion in regard to your Srst question, however, we think it more likely in the
case of environmental measures that such purposes would be found to be within the
district’s pre-existing authority under the constitution and statutes, and thus within the
contemplation of the easement grantor, even where the easement was granted prior to the
adoption of Senate Bill 586. Again, however, if particular environmental measures are
found not to be within the authorization given by article XVI, section 59, an easement
acquired with tax or tax bond funds could not in any case be used for such purpose.




                                             p.   2344
The Honorable Mike Driscoll - Page 11         (DM-420)




                               SUMMARY

               The Harris County Flood Control District may not use tax or tax
          bond funds for recreational and environmental measures described in
          Senate Bill 586, Act of May 21, 1993, 73d Leg., R.S., ch. 409, 5 1,
           1993 Tex. Gen. Laws 1711, 171 l-12, if the measures are not within
          the purposes of such a district as set out in article XVI, section 59 of
          the Texas Constitution, even if the district has an election purporting
          to authorize such expenditures. Recreational purposes under Senate
          Bill 586 are less likely to be found within the constitutionrd purpose
          of the district while environmental measures under the bill are more
          likely to be so found. A measure that is contrary to the purposes of
          the article XVI, section 59 or is solely recreational in purpose is not a
          permissible use of tax or tax bond funds. The Harris County
          Commissioners Court, the governing body of the district, should
          make the requisite factual determinations at least in the first instance.

               Whether an easement held by the district may be used for Senate
          Bill 586 purposes depends ultimately on the contemplation of the
          parties at the time of granting. Easements acquired with tax or tax
          bond funds may not, however, be used for recreational or
          environmental purposes not within the constitutional authorization
          for the district in article XVI, section 59.




                                                      DAN MORALES
                                                      Attorney General of Texas

JORGE VEGA
Fist Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee




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