                       The Attorney                General of Texas
                                             January        6,   1978
JOHN L. HILL
Attorney General


                   Honorable William W. Day                             Opinion No. H- 1111
                   Criminal District Attorney
                    of Calhoun County                                   Re: Source of payment of a
                   P. 0. Box 1001                                       judgment against Calhoun County
                   Port Lavaca, Texas ‘77979                            Drainage District No. ll.

                   Dear Mr. Day:

                        You have requested our opinion regarding the source of payment of a
                   judgment against Calhoun County Drainage District No. ll.

                          In    1961, the Legislature validated the District by special act, and
                   declared      it to be a validly existing and op?rating district under article 16,
                   section     59 of the Texas Constitution.    Acts 1961, 57th Leg., ch. 339, at 716.
                   The act     provides that the District is

                                  vested with, all of the rights, powers, privileges and
                                  duties conferred and imposed by the General Laws of
                                  the State of Texas now in force and hereafter enacted
                                  applicable to water control and improvement districts
                                  . ...

                   Sec. 1. In June, 1977, a plaintiff secured a judgment against the District for
                   damages to his property resulting from the District’s construction          of
                   improvements on Agua Dulce Creek. The Calhoun County Auditor, who also
                   serves as auditor for the District, has asked that you determine which of the
                   District’s statutory funds should be used to satisfy the judgment.

                         A water control and improvement district is required by the Water Code
                   to maintain at least two separate funds, a construction fund, section 51.351,
                   and a maintenance fund, section 51.352. The construction fund must be used

                                  to pay expenses, debts, and obligations necessarily
                                  incurred in the creation, establishment,    and main-
                                  tenance of the district and to pay the purchase price
                                  of property and construction     contracts,   including
                                  purchases for which the bonds were issued.

                   Water Code 5 51.351(b). We do not believe that the payment of a judgment for
                   damages may reasonably be said to be an obligation “necessarily incurred in
                   the creation, establishment and maintenance of the district.“.



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Honorable William W. Day    -   Page 2 (H-1111)



     The maintenance    fund must be used

           to pay all expenses of maintenance, repair, and operation of
           the district except the expenses of assessing and collecting
           taxes for the interest and sinking fund.       Expenses for
           collecting taxes for the interest and sinking fund shall be
           paid fro,m the interest and sinking fund.

Water Code S 51.352(b). Section 51.352(c) provides, however, that a district

           may pay from the maintenance fund other          expenses    for
           which payment is not provided in this chapter.

No specific provision is made in chapter 51 of the Water Code for the satisfaction
of a judgment against a water control and improvement district.    In our opinion,
such payment should be deemed to constitute “other expenses” and therefore,
payable out of the maintenance fund.

       The Supreme Court’s decision in Harris County Plood Control Dist. v.
Mihelich, 525 S.W.2d 506 (Tex. 1975) supports this view. In that case, the Court
mt         a water control and improvement district should use its maintenance fund
to satisfy a judgment for damages under the Texas Tort Claims Act. Id. at 510-R.
See also-Hrown County Water Improvement Dist. No. 1 v. Austin Mill annrain     Co.,
-2d          523 (Tex. 19401. Thus, it is our opinion that Calhoun County Drainage
District No. 11 should pay a judgment of damages rendered against it from its
maintenance fund.

                                   SUMMARY

           Calhoun County Drainage District No. 11 should pay a
           judgment of damages rendered against it from its main-
           tenance fund.




                                            Attorney General of Texas
APPROVED:



%JLlLL*
DAVID M. KENDALL, First Assistant




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Honorable William W. Day   -   Page 3 (H-1111)




Opinion Committee

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