               HE    .6%lTORNEY           GENERAL
                           OF   %%XAS




Honorable Jimmy Morris                  Opinion No. WW-595
County Attorney
Navarro County                          Re:   Whether Navarro County can
Corsicana, Texas                              spend tax money to maintain
                                              dams constructed in Navarro
                                              County by the Navarro-Hill
                                              Soil Conservation District.

Dear Mr. Morris:

          Your request for an opinion from this office and subsequent corres-
pondence presented facts which are essentially as follows:

              The Navarro-Hill Soil Conservation District has se-
         cured easements upon land in Navarro County owned by
         private individuals. These easements authorize the
         District to install, operate, maintain, and control dams
         and other reservoir works and measures thereunder. Each
         easement states that it is secured in a program of
         "planning and installing works and measures for water-
         shed protection, flood prevention, and agricultural
         phases of the conservation, development, utilization and
         disposal of water". The District has constructed several
         dams in Navarro County and has asked Navarro County to
         assume the maintenance of thetiedams and all other dams
         which may be constructed in the future. The estimated
         average cost of maintaining each dam is $100.00 per year.
         Navarro County has no special fund set up for such main-
         tenance and has held no election to provide such,a fund.
         The holders of the title to the land on which water is
         contained by these dams are selling to other persons
         fishing rights and the water.

         Your request for an opinion is substantially a&follows:

              Can Navarro County spend tax money to maintain the
         dams constructed in Navarro County by the Navarro-Rill
         Soil Conservation District?

          Certain Constitutional and statutory pro$isions, which otherwise
might be related to the consideration of this question as authorization.for
certain acts, are inapplicable under the facts presented. Among such provi-
sions are Section 52 of Article III and Section 59 of Article XVI of the
Texas Constitution and Articles 7808 and 7800-1, Vernon's Annotated Texas
                                                                         -     ,




Honorable Jimmy Morris, Page 2.    (ww-595)



Statutes.

          The Constitutional and statutory provisions which may authorize
Navarro County to engage in flood control projects, including the financing
of such projects, are codified as Section la of Article VIII of the Texas
Constitution and Articles 7048a, 7048b, and 1581e, Vernon's Annotated Texas
Statutes.

          Section la of Article VIII terminated the levying of a state ad
valorem tax for general revenue purposes subject to certain exceptions and
authorized counties to levy ad valorem taxes for certain county purposes,
including flood control.

          Article 7048a was adopted by the Legislature as an enabling act to
authorize the levying, assessing, and collecting of taxes by counties under
Section la of Article VIII. Section 7 of Article 7048a required approval of
bounty ad valorem taxes in an electian before the county could exercise such
authority. Since no election has been held on this question in Navarro
County, this county ad valorem tax cannot be levied.

          However, Article 7048a also contains provisions for the continued
levying, assessing, and collecting of the state ad valorem tax in those count-
ies and political subdivisions from which tax donations have been granted for
a period of time which has not terminated. As amended in 1951, Section
10(a)(4) of Article 7048a provides that, of such money collected, any excess
after existing legal obligations are discharged shall be paid to the county
and used for either the construction and maintenance of farm-to-market roads
or for flood control.

            Further, Article 704813,as amended in 1955, provides in part as fol-
lows:

                 "The Commissioners Court of any county in the State
            may enter into contracts for the accomplishment of plans
            and programs for flood control and soil conservation with
            . . . State Soil Conservation Districts . . . as provided
            in Section 5 of Cha ter 464 of the Acts of the Fifty-first
            Legislature, 1949 PArticle 704857, and the responsibility
            for carrying out such plans and the expenditure of funds
            of the county and such . . . districts . . . may by such
            agreement be divided between the parties or delegated to
            either the county or to one or more of said . . . dis-
            tricts . . .W.

          These Constitutional and statutory provisions would authorize
Navarro County to contract with the Navarro-Hill Soil Conservation District
in a flood control program if funds are available to Navarro County under
Section 10(a)(4) of Article 7048a and the particular agreement is not other-
wise prohibited.
Honorable Jimmy Morris, Page 3. (W-595)



          Similar authorization to contract with other governmental units
is included in Article 1581e, which declares that counties shall have the
right of eminent domain to condemn and acquire real property and easements
and right-of-ways for flood control purposes.

          In San Antonio River Authority vs. Sheppard, 299 S.W.2d 920, a
flood control program contract executed between Bexar County and another
governmental unit was attacked on the ground, among others, that the contract
violated Section 52 of Article III which prohibits a county lending its
credit or granting money in aid of or to any individual, association, or
corporation. The Supreme Court denied this contention dnd held~the contract
involved valid, saying in part:

               "In the instant case the San Antonio River Authority
          has contracted to construct according to agreed plans
          specific flood control facilities and Bexar County has
          agreed to pay therefor. No loan of credit or grant of
          public moneys is involved. Both parties are obligated in
          a quid pro quo contract. Articles 7048a and 7048b ;.
          authorize ths Commissioners Court of Bexar County to
          contract with the District, and not to grant money to the
          District. Such contract does not constitute an un-
          constitutional pledge of credit or grant of public money
          by Bexar County".

          The fact situationon which this opinion is based seems to be suf-
ficiently similar for the same rule to be applied. A contract is defined
in Texas Jurisprudence, Vol. 10-A, Section 3, as a deliberate or voluntary
engagement between competent parties, upon a legal consideration, to do or
not to do some act. The consideration flowing from the District inthis
instance is a flood control program, including dams and related works and
the easements under which such were constructed and are held. The consider-
ation flowing from the County is the maintaining each of these flood control
works at an estimated cost of $100 per year. Therefore, the holding of
the Supreme Court would seem to be equally applicable to this situation.

          With regard to the actions of the land owners in selling water
and fishing rights to others, these actions are not determinative of the
public or private nature of the use of funds under the contemplated contract.
Each of the Constitutional and statutory provisions cited in this opinion as
authorization for the contemplated contract has flood control as an objective,
as does the program in which easements are secured and dams constructed by
the District. The use of public funds for a flood control program is ac-
cepted as permissible and proper, and this would be true of such use in this
situation.

          If the dams involved are constructed across either navigable or
non-navigable streams and are not designed merely to impound dif%sed surface
water, the actions of the land owners in felling water, except when based
              ,,
Eonorable Jimmy Morris, Page 4.    (ww-595)



upon permits or certified filings, and fishing rights, except those dealing
with access across the vendor's land, would not be authorized under the laws
of this State. See Attorney General's Opinion No. WW-97, a copy of which is
enclosed, which contains a discussion concerning rights in particular water,
and see Diversion Lake Club v. Heath, 126 Tex. 129, 86 S.W.2d 441, which
contains holdings concerning fishing rights similar to those involved in this
fact situation.

          Thus, in answer to your question and based on the facts presented,
Navarro County can spend tax money to maintain dams constructed in Navarro
County by the Navarro-Hill Soil Conservation District if such money is avail-
able to Navarro County under Section 10(a)(4) of Article 7048a.

                                     SUMMARY

                         Navarro County can spend tax money to
                         maintain dams constructed in Navarro
                         County by the Navarro-Hill Soil Con-
                         servation District under certain pro-
                         visions of Articles 7048a and 7048b
                         if such money is available to Navarro
                         County under Section 10(a)(4) of
                         Article 7048a.

                                                 Very truly yours,

                                                 WILL WIISON
                                                 Attorney General of Texas



                                                 BY:
                                                       Charles D. Cabaniss
                                                       Assistant
CDC:aw

APPROVED:

OPINION COMMITTEE

Geo. P. Blackburn, Chairman

Jot Hodges, Jr.
Thomas Burrus
Houghton Brownlee, Jr.
Lawrence Jones

RN-       FOR THE ATTORNEY GENERAL
BY:
      W. V. Gqppert
