                                March   1, 1974


The Honorable    Fred Wendorf                          Opinion   No.   H-   251~
Chairman
Texas Antiquities    Committee                         Re:    Responsibilities    of Texas
Box 12276, Capitol Station                                    Water Development
Austin,  Texas 78711                                          Board under Texas
                                                              Antiquities    Code
Dear   Dr.   Wendorf:

       You have    requested   our opinion   on two questions:

               1)Does the Texas Antiquities     Code impose upon the
               Texas Water Development        Board a responsibility
               to study, investigate,   salvage   or otherwise    amelio-
               rate the destructive   impact reservoir     projects   it is
               funding will have on the archeological      and historic&l
               resources   they will inundate?

               2)Does the current General      Appropriations    Act
               permit the Water Development        Board to expend
               funds for the purpose of studying and investigating
               the archeological   and historical   sites in a particular
               reservoir   prior to their inundation    and destruction?

       Your questions  have been prompted    because archeological   and histo-
rical sites have been located in an area where a Large reservoir     is to be
constructed  by a local municipal   water authority with funds to be loaned it
by the Water Development     Board.   In connection with your questions   General
Counsel for the Board has asked a related question,     viz. :

               3)“Is a political   subdivision  which has been otherwise
               authorized    to construct   a dam required  as a condition
               of impoundment      to obtain a permit from the Texas Anti-
               quities   Committee    if the impoundment   will cover arch-
               eological   sites? ”




                                           p. 1162
The Honorable         Fred    Wendorf,     page   2   (H-250)




      We will first focus our attention     on this third question because our
answer to it will clarify the responsibilities     of the Water Development
Board about which you are primarily       concerned.

        The purpose of the Texas            Antiquities  Code, Article   6145-9, Vernon’s
Texas    Civil Statutes, is clearly          set out in $ 2 which provides:

                  “It is hereby declared         to be the public policy and in
                  the public interest      of the State of Texas to locate,
                  protect,     and preserve      all sites,  objects,   buildings,
                  pre-twentieth      century     shipwrecks,    and locations     of
                  historical,     archeological,      educational,    or scientific
                  interest    . . . in, on, or under any of the lands in
                  the State of Texas.        . . .I’

        Section     6 of the Antiquities       Code   provides:

                           “Sec.    6. All . , , sites,      objects,     buildings,
                  artifacts,     implements,       and locations    of historical,
                  archeological,       scientific,    or educational      interest
                  . . . that are located in, on or under the surface                  of
                  any lands belonging         to the State of Texas or by any
                  county,     city, or political     subdivision    of the state are
                  hereby declared        to be State Archeological          Landmarks
                  and are the sole property           of the State of Texas and all
                  such sites or items located on private               lands within the
                  State of Texas in areas that have been designated                   as a
                  ‘State Archeological         Landmark’     as hereinafter        provided,
                  may not be taken, altered,            damaged,      destroyed,      sal-
                  vaged,     or excavated      without a permit from,          or in vio-
                  lation of the terms of such permit of, the Antiquities
                  Committee.       I’ (emphasis      added)

        Section      LO provides:

                          “Sec.   10. The Antiquities    Committee   shall be
                  authorized    to issue permits    to other state agencies   or




                                                  p. 1163
The Honorable       Fred    Wendorf,     page    3   (H-250)




                institutions   and to qualified       private   institutions,
                companies,      or individuals      for the taking,       salvaging,
                excavating,     restoring,     or the conducting        of scien-
                tific or educational       studies at, in, or on State
                Archeological      Landmarks        as in the opinion of the
                Antiquities    Committee       would be in the best interest
                of the State of Texas.        . . . No person,         firm,     or
                corporation     shall conduct any such operations               on any
                State Archeological        Landmark       herein described        with-
                out first obtaining and having in his or its possession
                such permit at the site of such operation,                or conduct
                 such operations     in violation     of the provisions        of such
                permit.    ” (emphasis       added)

      Section     17 provides:

                        “Sec.  17. Any person violating     any of the pro-
                visions   of this Act shall be guilty of a misdemeanor,
                and upon conviction      shall be punished by a fine of not
                less than Fifty Dollars       ($50.00) and not more than One
                Thousand Dollars       ($l,OOO.OO) or by confinement   in jail
                for not more than thirty (30) days, or by both such fine
                and confinement.     ”

       While the syntax used in 5 6 of the Antiquities                 Code    is somewhat
unclear,   we think it makes sense if read as follows:

                         “All . . . sites,     objects,     buildings,     artifacts,
                implements,        and locations     of historical,     archeological,
                scientific,     or educational     interest    . . . that are located
                in, on or under the surface           of any lands [owned by] the
                State of Texas or by any county,             city, or political        sub-
                division     of the state are hereby declared            to be State
                Archeological        Landmarks      and are the sole property
                of the State of Texas and [no] such sites or items [in-
                cluding those] located on private            lands. . . as here-
                after provided,        may . . .    be  taken,    altered,     damaged,
                 destroyed,      salvaged,   or excavated       without a permit
                from,     or i,n violation   of the terms of such permit              of,
                the Antiquities       Committee.     ”




                                                 p. 1164
The Honorable     Fred   Wendorf,    page   4 (H-250)




       Section 7 of the Antiquities    Code permits    the designation    of “State
Archeological    Landmarks”     on private   land, if the recordable,     written
consent of the owner has been obtained.         Section 5 of the Antiquities
Code declares    that all sunken or abandoned pre-twentieth         century ships
and wrecks    of sea and all contents    thereof and treasure    imbedded      in the
earth “located   in, on or under the surface of lands belonging         to the
State of Texas,    including its tidelands,    submerged   lands and the beds
of its rivers  and the sea within the jurisdiction     of the State of Texas . . .
are the sole property   of the State of Texas and may not be taken, altered,
damaged,    destroyed,  salvaged   or excavated   without a contract or permit
of the Antiquities   Committee.  ” (emphasis    added)

        The peculiar    wording    of $6 of the Antiquities     Code has suggested
to some that its “taken,      altered,   damaged, ” etc.,      clause applies    only
to those archeological      landmarks     found on private    lands.     Support for
this proposition    is claimed    from the legislative    failure    to include “agency”
within the 5 10 command       that “No person,     firm,   or corporation      shall con-
duct any such operations.        . . without first obtaining.      . . such permit
. . . . ” But we believe      the Legislature    intended to guard and protect
archeological    landmarks     found on publicly owned property          with the same
vigor as those found on private        land and that it intended to forbid unper-
mitted destruction     or alteration    of such landmarks       by government     employ-
ees or officers,     as well as by private     persons.

        The Antiquities    Committee    is specifically    authorized     by $10 of the
Antiquities     Code to issue permits    to state agencies.        Section 19 of the Code
authorizes     and directs  the chief administrative      officers    of all state agen-
cies to “cooperate      and assist”  in carrying     out the intent of the Act. Such
language,     in this case, imports    a mandatory      duty.   See 53 Tex. Jur. 2d
Statutes    5 18.   Compare   Attorney    General   Opinions M-851 (1971), M-840
 (1971), M-688 (1970), M-394 (1969) and V-293 (1947).

       It is clear from the 5 5 provisions     regarding   shipwrecks     and treasure
found on public lands that the “taken,     altered,    damaged”    prohibitory    lan-
guage in 5 6 was not meant to apply solely to landmarks          found on private
property.    We do not think the Legislature      intended to prohibit     the destruc-
tion of archeological   landmarks  found in riverbeds,       but exclude from such




                                            p. 1165
The Honorable       Fred   Wendorf,     page   5   (H-250)




a prohibition     those found on other public property,            particularly    when it
specifically    claimed   them both as State property.

         In our opinion,    then, 5 6 of the Antiquities       Code requires        that the
permission       of the Antiquities    Committee      be obtained in the form of a
permit     before any site of historical      or archeological       interest    located
on public lands can be altered,          damaged,      destroyed,     etc.    When a local
political    subdivision   plans to construct     a reservoir       which possibly      will
have a destructive       impact on archeological         and historical     sites in the
area to be inundated,        it is required   by 5 6 to obtain a permit before it
proceeds.       We need not now review        the. standards      to be followed      by the
Antiquities     Committee      when exercising     its permit power.

        Turning now to the responsibility         of the Water Development               Board,
we note that it is in a position quite different          from that of a local subdivi-
sion constructing       a reservoir.     The Water Development           Board was created
by Article    3, s49c, of the Texas Constitution           and is authorized         to sell bonds
to establish    the Texas Water Development           Fund which “shall be used only
for the purpose of aiding or making funds available                upon such terms and
conditions    as the Legislature       may prescribe,       to the various      political    sub-
divisions    or bodies politicand      corporate    of the State of Texas . . . .I’
Statutory    provisions     dealing with the duties and powers of the Board are
found in,6 5 11.00 et seq. of the Water Code, V. T. C. S. Under these pro-
visions   the Board’s      primary    duty is to investigate      the feasibility      of water
projects   proposed      by local political   subdivisions      and, if it approves        them,
to loan the subdivision        the funds necessary     for the project      out of the Texas
Water Development          Fund.

        The Water Development       Board does not itself engage in the actual
construction   of water projects.      Since the Board itself is not engaged in
any construction,    it would not be required     by 8 6 of the Antiquities Code to
obtain a permit when a project       it intends to fund might have an impact on
archeological    or historical  sites.    Instead the permit would have to be
obtained by the local political     unit actually  doing the construction.




                                            p. 1166
The Honorable      Fred   Wendorf,    page   6 (H-250)




       While the Water Development       Board       is not subject to the 5 6 permit
requirement,    it is not without responsibility         in this regard.  Although
primary   responsibility   for accomplishment          of the Antiquities  Code’s pur-
pose is given to the Antiquities    Committee,          5 19 does state:

                     “The chief administrative     officers    of all state
              agencies   are authorized   and directed     to cooperate
              and assist the Antiquities    Committee     and the Attorney
              General in carrying    out the intent of this Act. ”

The intent of the Act is expressly    stated in 5 2 to be the location,  preser-
vation,   and protection of all sites or objects  of historical  or archeological
significance   in, on, or under any of the lands in Texas.

        Thus, the Antiquities     Code imposes    on all state agencies      a mandatory
obligation   to assist the Antiquities   Committee     in locating,    protecting,    and
preserving     Texas’  historical  and archeological     resources.      But nowhere     in
it does it specify the nature and degree       of assistance     necessary     in order to
satisfy this obligation.

        The effect of the Code’s   silence   on this matter is to vest considerable
discretion  in the chief administrative      officer   of each state agency as to the
extent of assistance    which will be offered      the Antiquities  Committee.     And
of course each agency chief’s      exercise    of this discretion   is strictly limited
by the terms of the legislation     creating    his agency and by the provisions      of
the bills appropriating    funds for its use.

         As a state agency,       the Water Development         Board does have a respon-
sibility   to assist the Antiquities         Committee    in locating,   protecting,    and
preserving     archeological      and historical     resources     that might be destroyed
by the reservoir       projects    it funds.    But it is allowed     considerable    discretion
in determining       how to fulfill    its responsibility    to cooperate    and assist,    and,
in exercising      this discretion,       it may neither exceed the authority        granted in
its enabling    statute nor spend its funds for purposes             other than that for which




                                           p. 1167
The Honorable      Fred   Wendorf,     page   7     (H-250)




they were appropriated.     Whether any particular  act of assistance   can
be undertaken   by the Board without abusing its discretion   or overrunning
its authority will have to be determined  on a case-by-case    basis.   See
Article  5421q, V. T. C. S.

        For example,     5 11.062 of the Water Code, Vernon’s            Texas Codes
Annotated,    authorizes    the Board’s     staff to study and investigate     the state’s
water resources      in order to determine.       the most suitable locations      for
future water facilities     including   reservoir.sites      and to make estimates       of
the cost of such facilities.       Item 26 of the Board’s       appropriations    for fis-
cal 1974 and 1975 (General       Appropriations       Act, Acts 1973, 63rd Leg., ch.
 659, p. 1786, 2043) makes funds available             for “Topographic     mapping,
water studies and investigations.        ” A rider attached to this provision
 explains  that:

                        “Those   funds allocated   the Water Development
               Board under the appropriation         for topographic    map-
               ping, water studies and investigations          shall be used
               for. . . other studies and investigations         by the State
              ‘or in cooperation      or by contract    with other govern-
               mental agencies,       institutions  or non-governmental
               entities.    . . . ‘I (p. 2046)

          These statutory      provisions      give the Water Development          Board both
the authority     and wherewithal         to assist the Antiquities       Committee    in locating
and investigating       historical     objects,    archeological     sites,  etc.,  which might
be destroyed      by the reservoirs         it is funding.     The expense incidental      to
avoiding     destruction     of such artifacts      is actually   a part of the cost of con-
structing     a reservoir,      and the Board should be aware of the total cost of the
facilities    for the construction        of which it provides      funds.

                                      SUMMARY

                     Section 6 of the Antiquities   Code requires     a
               permit from the Antiquities     Committee   to be obtained
               before any historical  or archeological   resources      located
               on public lands can be altered,    damaged,    destroyed,    etc.




                                                  p. 1168
The Honorable              Fred   Wendorf,         page    8 (H-2-50)




                        While a local political     subdivision   planning to
                construct    a reservoir    which will affect historical     or
                archeological     resources     must comply with the permit
                requirement,      the Water Development         Board need not
                since it only loans money for the project           and does
                not engage in the actual construction.           The Board
                does have a responsibility        to assist the Antiquities
                Committee      in locating,   protecting   and preserving
                historical    and archeological     resources,     but it has a
                wide degree of discretion        in determining     how to meet
                    this    respohsibility.

                              The Board         has been provided            with funds which
                    can be used to study the antiquities    which will ,be
                    affected by a reservoir project    it is funding, but it
                    may not engage in salvaging   operations.

                                                          Very   truly    yours,




                                                          Attorney       General   of Texas


APPR         VED:
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                                                                 7
T.Arb&Y\F.          Y&K.          First    Assistant




DAVID M. KENDALL,                         Chairman
Opinion Committee




                                                           p. 1169
