                                   August,4,         1967

eon.   F. .R.   Booth                         Opinion       No. M-116
Executive   Director
Texas Water Rights Commission                  Re:     Navigation    end reclamation
Sam Houston State ~Office Building                     powers of    Flamingo Isles
Austin,   Texas     78711                              Municipal    Utility  District.

Dear Mr. Booth:

      You have requested    my opinion es to the constitutionality      of
navigation  end reclawation    along the Texas coast,   or coastal   islands,
in the manner proposed by Flawing0 Isles Municipal       Utility   District.
You request  answers to the following    questions:

       1.   Is the dredging    of canals which will be used for ~recree-        ”
            tional   end pleasure   boating    end for access   to houses within
            the District    en euthorised    project   for which’bonds   may be
            issued,   under the powers of a water control        and improvement
            district   for navigation     of its coastal    and inland waters and
            the reclamation    and drainage     of overflowed   and other lands
            needing drainage     in the District?

       2.   Is depositing   end leveling   fill  on private   property   of a
            developer   end construction   of bulkheads    an authorieed   pro-
            ject for which bonds may be issued,      under‘the    powers of a
            water control   and improvement district     for navigation    of
            its coastal   and inland waters end the reclamation        and drain-
            age of overflowed    end other lends needing drainage-in       the
            District?

        This district     was created  by the Texas legislature     (Article    8280-327,
 Vernon’s    Civil   Statutes)   and such a statute  es this has been held to be
~a general     law as distinguished    from a locel  or special    act.    It is not
 in contravention      of Article,III.    Baetion 56 of the Texas Constitution.
 L.C.R.A.    v. UcCrew. 125 Tax. 26g, 83 S.W.Zd 629 (1935);         L.N.V.A.    v.
m,       140 Tex.,2%,      167 S.W.2d 1011 (1943);   Atwood v. Willecy       County Nav.
 Dist..   271 S.W.2d 137 (Tex.~Civ.       App. 1954. Ref. N.R.E.);      Countv of
 Kron       v. Wilson,    160 Tex. 25. 326 S.W.2d 162 (1959)‘,; Sullins       v. City of




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Hon. F,. R. Booth,             page   2 (M-116)


e,       336 S.W.2d 814, (Tex. Civ. App. 1959, no writ).              All of Chapter
3A, Title      128, V.C.S.   relating     to water control    and improvement dis-
tricts    is incorporated     by reference      into Article   8280-327,   the organic
law of this district,        and such laws apply when they are not in con:.
flict    with the act creating        this district.     Sec. 3, of Art. 8280-327;
Trim&r       v. Carlton,    116 Tex. 572, ,296 S.W. 1070 (1927);         Hidalgo County
W.C.I.D.     No. 1 v. Hidalgo County, 134 S.W.2d 464, (Tex. Civ. App. 1939,
Error Refused).        It is valid     to incorporate    the nsvigation    and reclama-
tion statutes      relating   to general     law water ,control    and improvement
districts     by reference    into the organic       law of Flamingo Isles Muoicipal
Utility~ District.        Road Dist. No. 1, Jefferson        County v. Sellers,    142
Tex. 528, 180 S.W.2d 138 (1944);                         v. Yates,   145 Tex. 38,, 194
S.W.2d 395 (1946);        Newton Lumber Company v. Newton Countv Water Supply
District,      328 S.W.2d 461 (Tex. Civ. App. 1959, no writ).             Lower Nueces
River Water Supply District          v. Cartwright,     274 S.W,Zd 199, 207 (Tex.
Civ: App. 1954, Ref. N.R.E.).

        The Texas Constitutional          provision    under which this District         was
organized      plainly   provides    for “the reclamation         and drainane     of its
m                       ” end for “the                     of its i nlan d and coastal
iaters.”       Art&      XVI, Sec. 59, Texas Constitution.               By the provisions
of certain       general ,stetutes     relating     to water control      and improvement
districts,       the Legislature     has declared      that “such districts        shall be
ornanized      end ouerated    under the conditions,         provisions.      authority   and
restrictions”       provided    in.Article,XVI,       S~ec. 59 of~our Texas Constitu-
tion.      Articles    7880-l and 7880-7,        Vernon’s   Civil   Statutes.

          Section    3,   of   Article    8280-327,     givesFlamingo   IslesMunicipal
Utility       District:

      II~ . . all of the . e . powers a a s conferred         . d . by Chapter
      3A of Title    128, Revised Civil   Statutes    of Texas, 1925, , L a
      includine   all oowers and euthoritv     relating   to the navigation
      pf its coas.&& and inland wateX.8 md the reclamation          and drain-
      age of_nverflowed                                                  ~ . .
      and the issuance    of bonds therefor    as authorized    by and pro-
      vided in said Chapter e . *” (Emphasis added)

      It is the opinion   of this office     that the project    described    in
your request   is clearly  within   the constitutional      and statutory   powers
of Flamingo Isles Municipal     Utility   District,    to-wit:   reclamation,
drainage  and navigation.    Compare,Parker      v. San Jacinto    County Water
Control & Improvement Dist.,      154 Tex. 15,.273     S.W.2d 586 (1954).

      Land fill  along            a coastline,     or river,   or island,  has long been
recognized   as one of            the means of     reclamation   of lands.   56 Ami, Jur.,




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    Hon. F. R. Booth,     page   3 (~-116)


    Waters,   Sec. 501, pages 909-10;    Annot. 91 A.L.R.2d   858; Lorino v. e-
    ford Packing Co., 142 Tex. 51, 175 S.W.2d 410 (1943);         Cox v. DallasL.I.D.,
    258 S.W.2d 851 (Tex. Civ. App. 1953, Ref. N.R.E.).          It was long ago rec-
    ognized   that the legislature   could decide   the size of the district     and
    the territory    to be included.    Paulsen v.,Portland,    149 U.S. 30 (1892);
    II Farnham, Law of Waters and Water~Riahts,        Sec. 174, page 938.    In
    Attorney   Cenerel’s  Opinion No. O-7018 (1946) we said:

                  “It is our understanding     that the proposed   (water control
           and improvement)     district  would be organized   only for the pur-
           pose of reclaiming      lands which are subject   to overflow  and
           providing   drainage    of the excess waters.”

                “Section  3 (of Article  7880, V.C.S.)   specifically  provides
           that a water control   and improvement district    may be organized
           for the purpose stated.”

          In Smith v. Wilson,   13 F.2d 1007 (S.D. Tex.,    1926), which involved
    a navige~district       organized  pursuant to Article    XVI Section 59 of
    the Texas Constitution,    Judge Hutcheson writing   for the court holds ate
    page 1010:

                 “(W)e think its plain that (the) contention        . . . that . . .
           the district   was formed really    for a private    and.not    a public
           purpose,   and that the taxes were voted in violation         of Article     3,
           g 52, and Article    8, 8 3, of the State Constitution,         may be dis-
           posed of sumsarily    as,, if not frivolous,   certainly     plainly   with-
           out ,merit.”

                  “Every public    improvement of this nature inevitably         results
           in benefit    to private   individuals;    in fact,    in purely  assessment
           districts    as such the union of private      benefit    with public    good’
           is an essential     to the district,     and it goes without     saying that
           the fact that the Freeport        Sulphur Company, and other persons
           owning property     in the town of Freeport,      will benefit    from the
           improvement,    does not in any manner prevent         the tax levy from
           being public    in its nature.”

           Article     VIII,  Sec. 3, Texas Constitution        provides    that,  “Taxes
    shall be levied        and collected    by general   laws for public      purposes    only.”
    As stated above, Article          8280-327  is a “general      law.” L.C.R.A.    v. McCXew,
    125 Tex. 268, 83 S.W.2d 629 (1935).             DpVis v. City of Lubbock,        160x
    38, 326 S.W.2d 699 (1959),           at page 709. held that the Constitutional
    provision      requiring   taxes to be levied      and collected     for “public    purposes”




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Hon. F. R. Booth,      page 4 (~-116)


is no narrower      in meaning than the words "public      use" es used in
Article  I, Sec.     17, Texas Constitution.       While "public   use” is fi-
nally a judicial      question,    the declaration   of the Legislature     upon
the subject    is   entitled    to great weight and respect     in arriving   at
a final  decision     of~the question.      Atwood v. Wiilacy    County Navina-
tion District,      271 S.W.2d 137 (Tex. Civ. App. 1954, Ref. N.R.E.);
Smith v. Wilson,      supra; B&r& v. City of Taylor,        37 S.W.2d 291 (Tex.
Civ. App. 1931),      affirmed    in u      v. City of Taylor,    123 Tex. 39,
67 S.W.2d 1033      (1934).

        In Atwood v. Willacv    County Navigation     District,    supra, the San
Antonio Court of Civil Appeals,         through Justice    Norvell   held that the
acquisition     of land by the district      for the purpose of leasing       the
land as industrial      sites  in the proximity     of a port is reasonably
necessary    to the successful     operation    of the port end is for a "public
use" within the meaning of the Texas Constitution.              In this case,     the
appellee    district   was organized    in accordance   with Article     XVI, Sec.
59 of the Texas Constitution        as was the Flamingo Isles Municipal
Utility    District.

      By Sections   7 end 9, of Art. 8280-327,      V.C.S.,  the Legislature
has found and declared     the "benefits"   of the navigation      and reclama-
tion  of the ,seeshore  lends,  or island@.      No hearing  as to benefits      is
necessary   (as is the case in a district      created   by general    law) where
the Legislature    so enacts the above type of language..        Southern Paine
Lumber Compen v. Newton County W.S.D,,         325 S.W.2d 724,     (Tex. Civ.
App. 1959, Refused N.R.E.);      State ex rel. Merriman v. m,            116 Tex:
527. 296 S.W. 1085 (1927);     Baunham v0 Willacv      County W.C.I.D.     No. 1,
112 S.W.2d 318, (Tex. Civ. App. 1938, Error Refused);           City of Houston
v. Fore. 412 S.W.2d 35. (Tex.,Sup.,       1967).

      Navigation    principally     by pleasure   boats,    as distinguished    from
commercial   craft   does not alter      the fact that such is "navigation."
12 Am. Jur.2d.     Boats end Boating,      Sec. 2. page 390; Mentor Harbor
Yachting Jpl&v.      Mg4ntor'La,goons.    Inc.,  170 Ohio 193. 163 N.E.2d 373
(1959);  !Nekoosa Edwards Pal,er Co. v. Railroad           Commission,    201 Wis.
40. 228 1H.W. 1ri4 (1929); State ex rel Elamsann v. Levltan,              200 Wis.
27i. 228 N.W. 140 (1929);         State v. Rorrer.     127 Minn. 6(1, 148 N.W.
617, L.R,A.    1916c, 139 (1914Jil amorev   _~ _ v..Metcelf
                                                     _          52 Minn. 181, 53
N.W. 1139 (1893);      Grand Rapids v. Powers, 89Mich:          94. 50 N.W. 661
(1891).   14 L.R.A. 498, 20 Am. St. Rep. 276; New England Trout and
Salmon Club v. Mether, 68 Vt. 338, 35 Atl.             323, 33 L.R.A. 569, (1896).
The riaht of navigation         in tidal waters includes      the right of anchor-
age which may be exercised         for business   purposes    or for-pleasure.




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    Hon. F. R. Booth,       page   5 (~-116)


    Anderson v. Reames, 204 Ark. 216, 161 S.W.2d 957 (1942).                  Public right
    of navigation     entitles     the public    generally   to reasonable    use of navi-
    gable waters for legitimate          purposes of transportation        and for boating
    or sailing    for pleasure       in any kind of water craft      consistent    with
    enjoyment of right by others.            Silver   Springs Paradise     Co. v. m,     50
    F.2d 356 (5th Cir.,        1931).    The fact that the canals of Flamingo Isles
    Municipal   Utility     District    will be used for recreational        purposes   es
    well as drainage      is irrelevant.        See Attorney   General’s    Opinion No.
    C-436 (1965).

            The Flamingo Isles Municipal            Utility    District     as created      by Art.
    8280-327,     V.C,S.,    and its reference         statutes    applicable      thereto,     is
    legally    created     and can lawfully       issue bonds, or otherwise            act in con-
    sonance with its organic            laws to carry out the navigation             and reclama-
    tion plan outlined         in your opinion       request.      This opinion      does not
    obviate    the need for the Texas Water Rights Commission under Art.
    7880-139,     v.c.s.,     to perform all of its         statutory     duties    as to the
    proposed    plans of the Flamingo Isles Municipal                 Utility    District     to
    issue bonds.         Full administrative       discretion      on behalf     of the State
    is given your Commission under statutory                 guide-lines       to approve,      or
    disapprove,      the project     when presented.         Likewise,      this opinion      is
    not to be construed         as approval,     or partial      approval,      by the Attorney
    General of Texas of eny’bonds            of said district.          Attorney     General’s
    Opinion No. O-7018,          (1946).    Pursuant to Article          7880-34,    V.C.S.,
    such bonds may be considered            only at the time same have been properly
    presented     to this office.         Therefore,,the       questions     you have submitted
    cannot be answered more completely               et the present       time.




                                            SUMMARY


                  Flamingo Isles Municipal        Utility   District,    created   by
            Art. 8280-327,    V.C.S.,     can lawfully    engage in navigation       and
            reclamation   projects     along the Texas Coast, or islands          thereof,
            but the feasibility       of such projects     must be approved by the
            Texas Water Rights Coensisrion pursuant           to Article    7880-139,
              .




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          Hon. F. R. Booth,                  page 6 (~-116)


                    V.C.S.,    and subsequent   approval  by the Attorney    General pursuant
                    to Article    7880-34,  V.C.S.,   must be obtained   if such projects
                    are to be financed     through the issuance    of bonds.




          Prepared          by Roger         Tyler
          Assistant          Attorney         General

          APPROVED:
          OPINION COMMITTEE

           Hawthorne Phillips;    Chairman
           Kerns Taylor;-Co-Chaiman
           John Fainter
          ,Paul Martin
           Dyer Moore
           Jack Sparks

           STAFF LECALASSISTANT
           A. 3. Carubbi. Jr.




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