            THE     Amro           NEY       GENERAL

                          OP      TEXAS




Honorable Bill Clayton, Chairman
House Interim Committee to Study
   Conservation of Soil and Water
   Resources
House of Representatives
Austin, Texas
                            Opinion NO. c-363
                                     Re:     Whether the Legislature
                                             may authorize the Water
                                             Development Board to ex-
                                             tend loans to political
                                             subdivisions   of the~State
                                             for conserving    and devel-
                                             oping underground water
                                             01' may guarantee bond ls-
                                             sues of political    subdlvl-
                                             sions of the State Issued
                                             to provide funds for use
                                             In developing   and conserv-
Dear Mr. Clayton:                            ing underground waters.
         We quote your   recent    request    for an opinion    of this
office     in toto.
             "The House Interim Committee to Study
         the Conservation of Soil and Water Resources
         has been requested to consider proposing
         legislation    to extend the uses to which
         money in the water development fund may
         be put, under Section kg-c, Article     III,
         Constitution    of the State of Texas.    Several
         proposals have been made to the committee;
         among them are proposals to allow the Texas
         Water Development Board to extend loans to
                uarantee bond Issues of) political    sub-




                                          -1719-
Honorable Bill    Clayton,   page 2 (C-363)


          “(1)   purchase water rights        in under-
                 ground water;

          “(2)   drill   water wells;

          “(3)   provide transportation  for the
                 underground water from the well
                 to a treatment and retail  distri-
                 bution  point;

          “(4)   treat the water from the under-
                 ground supply and provide a re-
                 tail distribution  system for It;

          “(5)   develop underground storage
                 facilities for water.
          “The committee would appreciate  having
      from you an opinion on whether or not it
      would be constitutional  for the legislature
      to provide that money in the water develop-
      ment fund may be used for any of those
      purposes. I’
       The constitutional   provision      autherizing   the Texas
Water Development Fund and setting forth the urposes for
which it may be used is Article       III,    Sect&a   g g-c, Goaati-
tution   of Texas,    It provides In that part pertinent        to
your question as follows:
          “Such fund shall be used only for the
      purpose of aiding or making funds avall-
      able 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 includ-
      ing river authorities,      conservation   and
      reclamation districts      and districts   created
      or organized or authorized to be created or
      organized under Article       XVI, Section 59 or
      Article   III, Section 52, of this Constitu-
      tion, interstate      cempact commlsslons to
      which the State of Texas Is a party and
Honorable   Bill   Clayton,   page 3 (C-363)


     municipal corporations,       in the conservation
     and development of the water resources of
     this State, including the control,        storing
     and preservation     of its storm and flood
     waters and the waters of its rfvers and
     streams, for all useful and lawful purposes
     by the acqufsition,     improvement, extension
     or construction    of dams, reservoirs      and
     other water storage projects,       including any
     system necessary for the transportation         of
     water from storage to points of treatment
     and/or distributfon,      includfng facilities
     for transportfng     water therefrom to whole-
     sale purchasers,     or for any one or more of
     such purposes or methods."
       Perhaps you ask these questions because, first,     you
feel that since Article     III, Section 49-c, fails   to
specifically   mention underground water that the water
development fund might not be used for the five purposes
enumerated above in your request, and perha s you ques-
tion, second, whether Article      III, Section t y-c, autho-
rlzes the Legislature     to extend the credit of the State
to political   subdivisions    of the State in view of Article
III, Section 50 of the Constitutfon       of Texas.
       We would first   call your attention  to the fact that
Article   III, Sect%on 49-c, does speciffcally    authorize the
Legislature    to appropriate  or make the water development
fund available    to districts  organized under Article   XVI,
Section 59 of the Constftution      of Texas to be used In the
conservation    and development of the water resources of
this State for useful and lawful purposes.       In this respect
Article   III, Section   49-c, reads:
         "Such fund shall be used only for the
     purpose of aiding or making funds avafl-
     able q e D to D il . various political     sub-
     divisions    or bodfea pol%t%c and corporate
             and districts         created or organ-
     ized-or authorfzed to be-created      or organized
     under Article     XVI, Sect%on 59 n . o of this
     Constitution     . D . in the conservation  and
Honorable Bill   Clayton,   page 4 (C-363)


     development of the water resources of this
     State . . , for all useful and lawful pur-
     poses . . . .'
     Directing your attention to Article        XVI, Section   59,
you will note that it reads In part:
         "(a) The conservation  and development
     of all the natural resources   of this State,
     . . 0 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 Legislature
     shall pass all such laws as may be appro-
     priate thereto,
         "(b)   There may be created within the
     State of Texas or the State may be divided
     into, such number of conservation      and re-
     clamation districts    as may be determined
     to be essential    to the accomplfshment of
     the purposes of this amendment to the
     Constitution,   which districts   shall be
     governmental agencies and bodies politic
     and corporate    . , . ."
       Included among the types of districts       that the Legls-
lature Is authorized to organize under Article          XVI, Section
59, are fresh water supply distrfcts       as provided for under
Article    7881,   et seq., VernonIs Civfl Statutes.      Artfcles
7881 et seq. clearly       authorize the creation of such dis-
tricts   for the purpose of conserving,      transportfng   and
distributing     fresh water from wells and reservoirs      for
domestic and commercial purposes.        Articles   7881 et seq.
likewise authorize      such districts  to acquire by purchase
or otherwise underground water rights.          In this respect
Article    7881 reads in part:

         "There may be created within this
     State conservation     districts    to be known
     as fresh water supply districts         for the
     purpose of conserving,       transporting   and
     distributing    fresh water from D . O reser-
     voirs,   wells,   O , O for domestfc and com-
     mercial purposes as contemplated by Sec-
     tion 59{, Article    XVI of the State Consti-
     tution.
-




    Honorable   Bill     Clayton,   page 5 (C-363)


         Article       7917, V.C.S.,   reads in part:
               "All such districts     shall have full
         authority    and right to acquire water rights
         and privileges    in any way that any lndivi-
         dual or corporation     may acquire same, and to
         hold the same either by gift,       purchase, de-
         vise, appropriation     or otherwise.    No enumer-
         ation of specific     powers herein shall    be held
         a limitation    upon the general powers conferred
         by this chapter, unless distinctly        so expressed."
          In the case of Ptacek v. Hofheinz, 128 S.W.2d 872 (Tex.
    Civ.App. 1939, error ref.),     it was held that fresh water
    supply districts  which utilize    subterranean waters for their
    source of supply might be organized under Article     XVI,
    Section 59 of the Texas Constitution.
          Further, the resolution  (H.J.R. No. 3, Acts 55th Leg.
    R.S. 1957, p. 1636) authorizing   the submission of Article
    III, Section 49-c to a vote of the electorate   reads in
    part:
                "Sec. 2. The foregoing   amendment to the
         Constitution   shall be submitted to a vote of the
         qualifie~d electors  of this State at an election
         to be held on the 5th day of November, 1957,
         same being the 1st Tuesday after the 1st Monday
         in aaid November, 1957, at which election     each
         ballot   shall have printed thereon, the following
         words:
                "'FOR the amendment to the Constitution        of
         Texas adding a new section      to be known a8 Section
         49-c of Article    III, authorizing    the issuance and
          sale of Two Hundred Million Dollars ($200,000,000)
         in bonds by the State of Texas to create the Texas
         Water Development Fund to provide financial         as-
          sistance  to certain political     subdivisions   or
         bodies politic    and car orate o
         'in the conservation~-+!FiFClo~rnIj~~
                                 a                  oStra~~e"~aT~~a
         resources   of the State.
               "'AGAINST the amendment to the Constitution
         of Texas adding a new section to be known as
         Section 49-c of Article  III, authorizing  the
Honorable    Bill   Clayton,   page 6 (C-363)


        issuance and sale of Two Hundred Million Dollars
        (200,000,000)   in bonds by the State of Texas to
        create the Texas Water Development Fund to pro-
        vide financial   assistance  to certain political
        subdivisions   or bodies politic  and corporate of
        the State of Texas in the conservation     and develop-
        ment of the water resources of the State."'
        (Emphasis Added)
      The phrase     “in the conservation and development of the
water resources      of the State" surely includes subterranean
or underground      water.  It is said in 12 Tex.Jur.2d 369,
Constitutional      Law, Section 24:
                   .Although the intention of the framers
        is of some importance, the real question is what
        did the people intend by adopting a constitution
        framed in language submitted to them?"
        In Smissen v. State, 71 Tex, 222, 9 S.W. 112 (1888)       the
court    said on page llb of 9 S.W.:
             1,
                .  . .The proceedings    of a convention may
        be looked to in construing a clause of a con-
        stitution    framed by it, when it is of doubtful
        construction;     but such evidence is of but little
        weight, for the intention      of the framers of a
        constitution    is of but little    importance,  --the
        real question being, what did the people in%=
        by adopting a constitution       framed in language
        submitted to them?. . ." (Emphasis Added)
       Certainly the electors   of the S%ate when they read the
ballot for voting on the constitutional        amendment in question
would believe the funds for which they were voting might be
used to develop underground waters.        Most certainly   the
electorate    of the State of Texas when it voted on the legis-
lative resolution    upon which Article    III, Section 49-c was
based, had a general knowledge of the types of districts
formed under Article     XVI, Section 59 of the Constitution,
since that Article     had been interpreted    by both our judiciary
when it decided the case of Ptacek v. Hofheinz and our Legis-
lature when it passed Articles      7881, V.C.S. through 7959a.
Certainly it was the intent of the electorate         that water
development funds might be used to aid fresh water supply
districts    which utilime subterranean waters for their source
of supply.     And certainly  it was the intent of the electorate
Honorable   Bill   Clay~ton, page 7 (C-363)


of this State that when so authorized by the Legislature
such fresh water supply districts could utilize the water
development fund for the purposes for which they were
legally  created.
      Since the electorate   had certain  knowledge that it
was authorizing  the fresh water supply districts      to utilize
(at legislative  authorization)   the water development fund
for the purposes enumerated in Articles      7881 through 7959,
we conclude that it intended such fund might be used for
similar purposes by other enumerated political       subdivisions
of the State (upon legislative    authorization)   if not other-
wise prohibited  by the Constitution.
      Therefore, we are of the opinion that Article      III,
Section 49-c authorizes   the Legislature    to provide that the
water development board might extend loans of the water
development fund to political   subdivisions    of the State which
are not otherwise prohibited   by the Constitution     of Texas
from engaging in such operations    for the purposes of:
     (1)    purchasing     water rights     in underground        water;
     (2)    drilling     water wells;
       (3) providing      transportation     for the underground
water from the well       to a treatment     and retail distribution
point;
     (4)   treating the water from the underground supply
and providing a retail  distribution  system for it;
     (5)    developing     underground     storage   facilities      for   water.
       Article    III, Section 50 of the Constitution    of Texas pro-
hibits    the Legislature    of the State of Texas from lending the
credit of the State in aid of any municipal corporation           in
any manner whatsoever or in pledging the credit of the State
in any manner whatsoever for the payment of liabilities
present or prospective       of any municipal corporation.      We find
no wording in Article       III, Section 49-c of the Constitution
which could be construed as a negation        of Article   III, Section
50 of the Constitution.         It is quite evident from the wording
of Article     III, Section    49-c, that the electorate   intended
that there be created a maximum fund of $200,000,000.00
(Water Development Fund) which might be loaned to various
political     subdivisions   for water development purposes but which
should be paid back to the water development fund with interest.
     Therefore, we are of the opinion that the Water Development
Board cannot guarantee bond issues of political  subdivisions for
the purposes enumerated in your opinion request.
Honorable   Bill   Clayton,   page 8 (c-363)


                          SUMMARY
      The Legislature   may authorize the Water
  Development Board to extend loans to political
  subdivisions   fop conserving    and developing under-
  ground water.     The Legislature    may not authorize
  the Water Development Board to guarantee bond
  issues of political    subdivisfons,    the funds of
  which are to be used in developing and conserv-
  ing underground waters.
                                  Yours very truly,
                                  WAGGONER CARR
                                  Attorney General of Texas



                                       1t    Richardson
                                     AssiiZant
MR”gm

APPROVED:
OPINION COMMITTEE
W, V. Gepper%, Chairman
Linward Shivers
Wayne Rodgers
Arthur Samilfn
Roy Johnson
APPROVRDFOR TRE ATTORNEY
                       GENERAL
BY: Stanton Stone
