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            The Attorney              General          of Texas
                                March 23, 1981




        Mr. E. C. Parker, Jr., President            Opinion No. MV-313
        Board of Directors
        Upper Guadalupe River Authority             Re: Whether the Upper Guadalupe
        P. 0. Box 1278                              River Authority may provide park
        Kerrville, Texas 78026                      and recreational facilities

        Dear Mr. Parker:

                 You have asked whether the proposed construction of certainpark and
         recreational facilities by the Upper Guadalupe River Authority ,on its soon to
         be completed reservoir near the city of Kerrville would be in furtherance of
        -the purposes for which the district was created. You state that the proposed
         facilities construction includes “landscaping, making certain areas of the
         reservoir suitable for swimming, and providing parking areas, restroom
         facilities, boat ramps, picnic tables, lighting, roads, and fencing for the
        areas.”

               The Upper Guadalupe River Authority is a conservation and reclama-
        tion district created under and pursuant to article XVI, section 59 of the
        Texas Constitution and Acts 1939, 46th Legislature, chapter 5, as amended
        (codified as article 8280-124, V.T.C.S.). Article XVI, section 59 of the Texas
        Constitution states:

                       Sec. 59. (a) The,conservation   and development   of


                   its storm and flood waters, the waters of its rivers
                   and streams, for irrigation, power and all other useful
                   purposes,, the reclamation and irrigation of its arid,
                   semt-and     and other lands needing irrigation, the
                   reclamation and drainage of its over-flowed lands,
                   and other lands needing drainage, the conservation
                   and development of its forests, water and hydro-
                   electric   power, the navigation of its inland and
                   coastal waters, and the preservation and conservation
                   of all such natural resources of the State a~ each
                   and all hereby declared pubhc nghts and dutraq and
                   the L&rIature     shall oass all such laws as may be
                   approphate thereto.      -




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Mr. E. C. Parker, Jr. - Page Two        (Mw-31%



                9~) There may be created within the State of Texas, or the
            State may be divided into, such number of conservation and
            reclamation districts as may be determined to be essential to
            the accomplishment of the purposes of this amendment to the
            constitution, which districts shall be governmental agencies and
            bodies politic and corporate with such powers of government
            and with the authority to exercise such rights, privilqes and
            ftmctions concerning the subject matter of this amendment g
            may be conferred by law. (Emphasis added).

In 1971, the authority’s enabling legislation   was amended (Acts 1971, 62nd Legislature,
chapter 430, at 1586-87) to read as follows:

                Sec. 16. (a) Without limiting the powers granted to the
           District by this Act, the District shall specifically have the
           rieht. oower. brivileze. flnction      and authoritv to control
           d&e&; store &td @serve the waters and flood-waters of the
           Upper Gusdaltxxr River and its tributaries within or without the
           boundaries of the District for any beneficial or useful purpose
           and to purchase, acauire. build. construct, improve, extend,
           reconat&t,     repair a& maintaln~ any and all dams, structure&
            waterworks systems, sanitary or storm aewer or drainage or
           irrigation systems, buildings, waterways, pipelines, distribution
           systems, ditches, lakes, ponds, reservoirs, plants, and recrea-
           tional facilities   for the public use and any and all other
           facibties   or equipment in aid thereof, and to purqhase or
           acauire the necessarv sites. easements, rights-of-way. land or
           ot6er properties necessary thereof and to io any and-all of the
           acts and things which may be necessary to the exercise of any
           and all of the rights, powers, privileges, functions and authority
           of the District, and same may be accomplished by any and all
           practical means, and the District may sell water and other
           services. (Emphasis addedL

In 1975, the Attorney General rendered an opinion that the development of parks and
recreational facilities by municipal utility districts created under article XVI, section
59 of the Texas Constitution in the district16 program of developing and conserving the
natural resources of the state is a constitutionally      permissible activity. Attorney
General Opinion H-491 (1975L


t1101. the court held that certain orooosed recreational facmes      to be built bv the
met      would not serve the purpos& for which the district was created. This de&ion
has apparently created doubts as to whether the river authorities of this state can
construct recreational facilities on reservoirs
      In the Harris Camtg W.C.I.D. #llO opinion, Chief Justice Phillips states quite
pointedly that “itl he question in this appeal is whether a municipal utility district may




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            Mr. E. C. Parker, Jr. - Page Three           (MW-313)




            provide perk and recreational       facilities which include a community center, three
            s,wimming pools, four tennis courts, and a clubhouse. . . .‘I E at 853. (Emphasis
            added1 Thus, recreational facilities per se are not prohibited but rather, are limited
            by the standard set out by the court to-%:         “[tl he power to construct recreational
            facilities must be exercised to further a purpose of section 54.012 [Texas Water Code)
            to be justified and constitutionaL v Ia, at 854. The court had previously stated that
            “[$I ection 54.012 of the Texas Water Code, entitled ‘Purposes of a District,’ parallek
            the Muage      of article XVI, section 59(a) (Texas ConstitutionL” Id. at 853. Implicit in
            the lquage      of the opinion is a question of the degree of relaTionship between the
            recreational facilities and the constitutional purpose of the district.

                  Section lLO24 of the Texas Water Code, a legislative    statement   of public policy
            regarding the use of state waters, provides:

                           In order to conserve and properly utilize state water, the
                       public welfare requires not only recognition of beneficial uses
                       but ako a constructive public policy regarding the preferences
                       between these uses, and it is therefore declared to be the public
                       policy of this state that in appropriating state water preference
                       shall be given to the following uses in the order named:

                           (1) domestic    and municipal uses, including water for
                               sustaining human life and the life of domestic animals;

                           (2) industrial uses, meaning processes designed to convert
                               materiak of a lower order of value into forms having
                               greater usability and commercial valtm, including the
                               development    of power’ by means other than hydro-
                               electric;

                           (3) irrigation;

                           (4) mining and recovery of minerals;

                           (5) hydroelectric    power;

                           (6) navigation;

                           (7) recreation    and pleasure; and

                           (8) other beneficial   usea.
                   The reservoir in this case is being constructed primarily to control and store
            water on the Guadalt@ River as a surface water supply for the city of Kerrville, in
            compliance with the constitutional purposes of the district and the statutory priorities
            of water usage. One secondary use of the reservoir as enumerated by the legislature is
            recreation and pleasure.




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Mr. E. C. Parker, Jr. - Page Four      (l&q-313)




      The legislature has given conservation and reclamation districts the necessary
powers to regulate the use of reservoirs for recreational purposes. The Texas Water
Safety Act provides In section 3l.O92(c) of the Parks and Wildlife Code:

                The governing board of a political subdivision of the state
            created pursuant to Article XVI, Section 59, of the Texas




            ch-qter.   (Emphasis added).

We are advised that constructing the proposed facilities     will aid proper control and
regulation of the recreational use of the reservoir.

       The Harris County W.C.I.D. #llO opinion prohibited construction of a complex of
recreational   buildings and facilities   which were uwelated to the constitutional
purposes of the district. It is our understanding that the facilities you propose to build
are related to a relatively minor portion of the total reservoir project and serve to
promote the full use and enjoyment of the reservoir by the public. We feel that the
improvements     you propose are ordinary and necessary to the proper control,
management, and regulation of public reservoirs and lakes, and are in furtherance of
the constitutional    purposes of “the canservation and development of all natural
resources of this State, Including the control, storing, preservation and distribution
of. . . the waters of its rivers and streams; for irrigation, power and all other useful
pUWOSS.”      Tex. Const art. XVI, 559(a).       (Emphasis added).      Conservation and
development of natural resources includes use and enjoyment          “Conserve” means to
keep in a safe or sound state, to save, to preserve from change or destruction, and is
svnonvmous with maintain. sustain. uohold. &fend. orotect. euard. shield and secure.
PecosValley Artesian Cc&ervanc~ D’istric’t v. Peters, 173 P.>d 490 (N.M. 1945). The
reservoir cannot be used and enjoyed without facilities designed not only to accomplish
and regulate such use, but ako to conserve and protect the reservoir.

                                     SUMMARY

                Construction of recreational facilities to make certain areas
           of a reservoir suitable for public access and use, to include
           landscaping,     making certain areas suitable for swimming,
           providing parking areas, restrooms, boat ramps, picnic tables,
           lighting, roads, and fencing is a constitutionally     permissible
           activity of a conservation and reclamation district created
           under article XVI, section 59 of the Texas Constitution.




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                                           m
                                                Attorney General of Texas

JOHN W. FAINTER, JR.
First Assistant Attorney General

RICHARD E.GRAY III
Executive Assistant Attorney General

Prepared by Ladd Pattillo
Assistant Attorney General

APPROVED:
OPINION COMMl’lTEE

-Susan L. Garrison, Chairman
 Jon Bible
 Rick Gilpin
 Ladd Pattillo
 Bruce Youngblood




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