Mr. Joe Carter                  Opinion No. WW-506
Executive Secretary
Texas Water Development Board   'Re: May the Texas Water Develop-
Austin 1, Texas                      ment Board lawfully give
                                     financial,~assistanceto a
                                     political subdivision for
                                     the construction of a water
                                     filtration or water treat-
                                     ment plant when such plant
                                     constitutes an integral
                                     part of the entire water
Dear Sir:                            project?


        You have requested the opinion of the AtiXXhey General
on the matter of whether theYTexas Water Development Board may
legally loan funds to a water.control ana improvement district
for the purpose of the construction of a water treatment plant
. . . "when such plant constitutes an integral part of the en-
tire project.*

        We understand that,a district seeks a loan of State
funds under applicable law so that it may construct a waterworks
system designed to take rawwater from Lake Travis, render it
potable by filtrationand aistribute':itto the consumers of the
district.

        No problem is involved relative to the authority of a
water control and improvement!district to do that which it seeks
t0 do.  Article 700048, V.C.S.

        The voters of the State on November 5, 1957, authorized
an Amendment to the Constitution known as Section 49-c of Article
III. Briefly, the amendment authorizes the sale of State Bonds
to provide an initial fund of $lOO,OOO,bOO.OO to be used to as-
sist named public corporations of the State in the conservation
and development of the water resources of Texas.
14r.Joe Carter, page 2 (WW-506)



        The portion of the Amendment applicable to this opinion
follows:

       "Such fund 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-subdivisions or bodies
       politic and corporate of the State of Texas in-
       cluding river authorities, ~conservation~~andrec-
       lamation districts created or organized or autho-
       rized to be created or organized under Article
       XVI, Section 59, or Article III, Section 52, of
       this Constitution, interstatecompact commissions
       to which-the State of Texas is a party and munici-
       pal corporations,.ink..theconservation and develop-
       ,mentof the water resources of this State,,including
       the control, storing and preservation of its.storm
       and flood waters and the waters of its rivers and
       streams, for all useful and lawful purposes by the
       acquieition, improvement, extension,~01~construc-
       tion of dams, reservoirs'and.other water storage,
       projects, including~any system necessary for'the
       transportation.of;w&ter from,storage to points of
       treatment and/or distribution, including facilities
       for transporting Waterstherefrom to wholesale pur-
       chasers,  or for any one or more of such>purposes
       or methods. I*

        Chapter 425, Acts 55th ,Legislature,R.S.,,,1957
                                                      (Article
8280-9, V.C.S.) is the enabling act for the Amendment. Therein
the Legi.slaturedefines the.word "project" as
       I . . . any engineering undertaking or work for the
       purpose of the,conservation and development of the
       surface water resources of the State of Texas, in-
       cluding the control, storing ana preservation of
       its storm and flood waters and the waters of its
       rivers and streams for+,alluseful and lawful pur-
       poses by the acquisition, improvement,~exteneion
       or construction of dams,.reservoirs and other
       water etorage projects, filtration and water
       treatment plants including any system necessary
Mr. Joe Carter, page 3 (WW-506)



         for the.transportationpof water'.fromstorage
         to points of 'distr~ibutiomo~
                                    or from storage to
         filtration.and treatmant phnts~,..bncluaing
         facilities for.transporting~watar therefrom
         to ~wholesale~purohasers,or fat any 0ne:or
         more of..suchpurpos,e~s,:
                               or methods.u (Under-
         scoring ours,)         .'

        The Legislature.deeme'd,thae
                                   Amendment broad enough to
include the construetion,of;filtration.and water'treatment
plants as a par'tof a,systemtthat conserves and developssthe
water res6urces of the State,'

          The enablingsact was.~‘anticipatory It was approved by
 'the Legislature June 6',.'1957.The proposed amendment known as
~,'H.J.R.NO. 3~#Acts 55th.Legislature,.ra.s.,..1957,
                                                   was,approved by
 the s'ameLegislatur8'on~~June~~~6~,~l957~

         The legal effect,of,.;t~e.lggBsBative
                                            interpretation is
 assayed in Collinqsworth,                 120 Tex. 473, 40 S.W.
 2a 13, 16:

         *Contemporaneous-~legislative,interpretation
         of a constitutional~,provisiowie universally
         held to be entitled'to weight D e aa

          In,Coreic~a~Co.tton.MilBo.~v,Sh=pard,/l23 Tex, 352, 71
 S.W. 2d 247, 251, the Courticautions:,
      ..:
          "A legislative act Which iS in conflict With
          the Constitution is .stillborn and af no force
          or effect - impotent alike to confer rights
          or to afford protection,"

         Consequently. we are.bound to,consider whether there is
 conflict between the enabling.legislation and the organic law.

         "The fundamental purpose in construing a con-
         stitu,tionalprovision~is to ascertain aa give
         effect to the intent,of,the framers and of the
         people who adopted it,? ~ollfngsworth County v.
         Allred, 120 Tg~.,473~,.4OS-W, 26213,~15.
Mr. Joe Carter, page 4 (WW-506)



        *Generally it may be raid that in determining
        the meaning, intent,:aAa purpose of a law or
        constitutional proviaion,..,thehistory of the
        timee out of which ,it~grew,,"andto which it
      . may be rationally eupp+red tobear taomedirect
        relationship, the .evile intended to be remedied,
        and the good to be~~accompliehed,are proper oub-
        jecte of inquiry.~~'~
                            Travelere"Inr. Co. v. War-
        shall, 124 Tex. 45, 76 8.W. 28 1007, 1012; 96
        ALRo2.

          The hisQorica1 background enveloping the framing aAd
enactment of the AmendmeAt~is,a.:harsh.onereflecting as it doee
the longest drouth in the.recorded history of the State. De-
ginning in 1951 ana continuing ,intoApril -'Way,.1957 the year8
of drouth were dieartrous,.;bitteralike to rural and metropoli-
tan areas. They were    year8 of physical and economic stress well
calculated to implant iA:tbe~miAd of those exposed to its rigoAs
that water aAd the water.reaourcee of the State were asset6 to
be COAseNed    aAd developed. It was in. the final year of drouth
that the electore of the ,State:Votedthe AmendmAt into the
ConstitutioA.

        The question irrwheth&r.a filtration plant coAotitutiAg
*an integral part of the entire water project* ie within the
           scope of the AmendmeAt?
spirit tttta

        When the'AmeAdment waSdrafted and at the time it wae
voted upon, there exiated Texa8',lawon the treatment of water
aAd the purity thereof.  Tho8e .whodrafted the Amendment were
bound to have had cognicance:'thereof;~thoeewho voted it into
law are chargeable with knowledge thereof.

        Article 4477-1,uv.c.s.,,.provide8t

        "Section 12(a). Dveryperron, firm, corporation,
        public,or private, contemplating the eEtablif#hmeAt
        of any drinking water!aupply.y~.. . for public use
".      shall, previous to the construction thereof, submit
        completed plans Ma rpecifications therefor to the’
        ,State Department of Health aAd the gala Department,
        shall approve 8amel provided maid plans conform to
.    .. .




    or. Joe Carter, page 5 (WW-506)



            the water safety . . . laws of this State.
            The said water supply . . . system shall
            be established only after approval+has beeA
            given by the State DepartmeAt of Health.*

            Article 44186, V.C.S.,*confers certain rule making
    powers on the Commie8ioAer of.Health. Section C 4.00 of the
    *Rules and Regulations Covering the Preparation, Submission
    and Approval of Plans and Specifications for Water Supply
    Systems and Acceptable Operating Practices,  Texas State Depart-
    ment of Health* providear

            "All water Secured from surface source8 of
            supply shall be given complete treatment at ;I
            a plaAt which provide8 faCilitie8 for COA-
            tinuous coagulatioA,~aedimentatioA, filtra-
            tion through acceptable media, covered clear
            well storage.aAd continuous disinfection of
            the water with chlorine gas or suitable chlo-
            rine compounds.*

            Article 4477-1, Section 13 (f)   gives the above rule the
    teeth of law in that:

            "No water from~any~aurface public drinking
            water supply shall be made accessible or
            delivered to any consumer for drinkiAg pur-
            poses unless it hae first received treatment
            essential to rendering it safe for human COA-
            sumption. All treatment plants IAClUdiAg
            aeration, coagulation, mixing, settling fil-
            tration, and chlorinating units shall be of
            such size and type as may be prescribed by
            good public health engineering practices.*

            Article 7471, V.C.S., contains a declaration of policy
    relative'the appropriation of the public waters of the State.
    The number one aAd highest priority granted is for YIomestic
    and MUAiCipal uses, IAClUdiAg Water for 8UStaining human life
    and the life of domestic animals.*
                                                             .   .




w.   Joe Carter, page 6 (WW-506)



        'ThXtfact is that surface water, as available in Nature,
may be so colored, turbid, hard or contaminated as to be unfit
for either domestic or industrial use. See "Waterworks Hand-
book* by Flinn, Weston and:Pogert,:and~"Water Works Practice,"
a manual issued by the American Water Works Association.

        By a series of processes:generically designated as water
treatment the raw water may be;restored to a,condition of use-
fulness. Filtration is one,such process. See authorities nwt
above.

        Here, for convenience,z,iwe
                                  will paraphrase Section 49-c
of Article III, Constitution,.ofT-as:

        The fund may be used only for the purpose of
        aiding in a designated manner~the named public
        corporations in the~conservation and,develop-
        ment of the State's.water resources which shall
        include the control, storing and preservation
        of waters derived from storms, floods,.,rivers
        and streams by the acquisition, improvement,
        extension, or constructionof aams,,,reservoirs
        and other waterst6rage:projects *Bincludinq
        any system necessarv-forthe transportation of
        water from storage tonoints of treatment and/
        or distribution,~.including~facilitiesfor trans-
        porting water,therefrom towholesale purchasers,
        or for anyyone~:ormorer,~of such+purposes or meth-
        ods.-  (Emphasis:aaaea)

        The underscored portionfirst~above~might'be construed
to mean that the fund,could'be,,usedtoassist in,the construc-
tion of a system to convey~water‘~;from,~storage.~
                                                 a point of
treatment, ana, therefrom to ,wholesale.:purchasers.That con-
struction of the Amendmentwould+preclude.;the use of the fUAd
to assist in any manner withthe:construction of a treatment   ,,'
plant.

        The purpose promptingrthe~iamendmentwas a bold attempt
to meet the water problems of the State aAd that legitimate
purpose should not be defeated,ihindered or frittered away by
narrow or technical construction.,,,.Aransas
                                           County v. Coleman-
Fulton Pasture Co., 108 Tex.,~223,:191S.W. 5530 Imperial~Irri-
gation Co. v. Jayne, 104 Te%,.395,,;138S.W. 575.
                                                                    .-:.




Mr. Joe Carter, page 7 (WW-506)



        It is our opinion~that a fair interpretation of the
language, spirit and intent of,the Amendment would be that
the construction of a treatment plant was included. Cer-
tainly it can be said that if it was the intent of the
framer8 to expressly exclude.,suchplants. much ha8 been left
to chance. Matter8 of.such importance should not be.read
out of the obviously broad.scope of the Amendment on the
Strength Of SUCh a AebUlOUS iAdiCatiOA Of negative intent.

        *It is a proper inquiry. . . in ascer-
        taining whether 'a,certain interpretation
        should be given to the language of the Con-
        stitution, to consider whether its framers
        aAd the voters,by whom'it was adopted intended
        the consequences which must follow such inter-
        pretatioAlm KOY.V. Schneider, 110 Tex. 369,
        218 S.W. 479, 481.

        Some practical VonsequencesH of the exclusion of
treatment plants are these. The State 00uia   assist,a city or
town in developing a water.eource~but:could notaid it in ren-
dering such water fit foruse by treating it in compliance
with the laws sponsoredand enforced.by the assisting sover-
eignty. Also, the aeeistance~is in the nature of loans that
must be repaid. If the water can.not be use&it     can not-be
Sold and thereby earn~the~~incomenecessary to repay the loan
from the State. Further,,,acity or town with an existinq treat-
ment plant could avail itselfiof the benefits of the Amendment;
whereas, a muAicipality thathad no plant and could   not finance
the construction of one without SUCh~~aSSiStaACeas is contem-
plated by the Amendment;.would be,, as,a practical matter, denied
the benefit of stored water because it lacked treatment facili-
ties. We do not believe that,such inequities between munici-
palities similarly situated were intended by either,the framers
of the Amendment or those who voted it into  being.

        *When a statute is plainand unambiguous inits
        terms and not susceptible of mre  than one con-
        struction, courte'iarenot,,coAcernedwith the
        consequences that may result therefrom, but must
        enforce the law as they find it. But when a
        statute is ambiguous in Ifs terms o.r susceptible
                                                    -5




fir.Joe Carter, page 8 (WW-506)



        of two constructions, then the evil results and
        hardships which may follow one construction may
        be properly considered by the.oourt, and it is
        right that the court shall cplaceuponthe stat-
        ute that interpretation of which it is faftly
        susceptible, which will ,attain the just solution
        of the questions:involved and protect the rights
        of all parties." Oriental Hotel Co. v. Griffiths,
        88 Tex. 574, 33,S.W. 652, 53 Am. St. Rep. 790, 30
        LRA 765.

        Generally speaking, rules of~statutory construction are
equally applicable to~,the.~.construction~of
                                          a Constitution. Bad-
ger v. Hoidale 1C.C.A.,,88th,,88 F. (2d);208, 109 ALR 798, ii
Am. Jur., Sec. 49, pa 658.

        Therefore,.because,of the reasonsheretofore set out
it is the opinion of the Attorney General that the Texas Water
Development Board may.,lawfullygrant financial assistance to a
political subdivision, otherwise qualifying,~,forthe purpose of
constructing a water filtration ,plant.whensuch project consti-
tutes an integral part of the entire ~water project.

        However, it is not,.our,~intent,
                                      ~nor do we hold, that
under the provisions of Section 49-c,.~ArticleIII,.Constitution
of Texas, the fund may be used,inithe.construction of water
treatment plants alone,,not a necessary part of a system, but
as an independent or exclusive~undertaking.

                             SUMMARY

        The Texas Water Development Roard may lawfully
        grant financial nssistance to a.;politicalsub-
        division, otherwise qualifying, for the pur-
        pose of constructing a water filtration plant
        when such project constitutes an integral part
        of the entire water project.




                                                                  ,p... .
Mr. Joe Carter, page 9 (WW-506)




                         Yours very truly,




GW-e


APPROVED8

OPINION COMMITTEE

Geo. P. Blackburn, Chabman
L. P. Lollar
c. K, Richards
J. C. Davis, Jr,
Arthur Sandlin

REVIEWED FOR THE ATTORNEY GENERAL
=8   W. V. Geppert
