                       December 21, 1989


Honorable D.R. "Tom" Uher          Opinion No.   JM-1122
Chairman
Redistricting Committee            Re: Authority of the Mata-
Texas House of Representatives     gorda County-Palacios Sea-
P. 0. Box 2910                     wall Commission to expend
Austin, Texas 78768-2910           funds to create a public
                                   beach   (RQ-1808)

Dear Mr. Uher:

     You ask whether the Matagorda County-Palacios Seawall
Commission may legally expend funds '*for the purpose   of
constructing or creating a public beach."

     Section 421.021(a) of   the Local   Government Code   pro-
vides:

           The Commissioners    Court of    Matagorda
        County and the governing body of a munici-
        pality  in the county may by       resolution
        establish a seawall commission to perform the
        functions described by Article 6830, Revised
        Statutes.

     Section 421.023 of the Local Government Code provides
in subsections (a) and (b) for the imposition by the commis-
sion of a tax on real property within     its jurisdiction.
Subsection (c) provides that "tax revenue may be used only
to finance functions of the commission."     Subsection   (f)
provides additionally  that .Vhe   commission may disburse
funds set aside by the municipality and the county for the
performance of its functions."

     Subsection (g) of section 421.023, added in 1989,     pro-
vides:
           The commission  may exercise any of the
        authority granted to a county or municipality
        under:

               (1) Articles 6830, 6831, and 6832, Re-
           vised Statutes:




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Honorable D.R. "Tom" Uher - Page 2            (JM-1122)




                    (2)   Article   6837,   Revised   Statutes:
              and

                    (3)   Sections 421.001(a) and (b).

Acts 1989, 71st Leg., ch. 329, § 3, eat 1296.

        Article 6830, title 118, V.T.C.S., provides in relevant
part:

              The county commissioners'   court of all
           counties, and the municipal   authorities   of
           all cities, bordering on the coast of the
           Gulf of Mexico, shall have the power and are
           authorized from time to time to establish,
           locate, erect, construct,   extend, protect,
           strengthen, maintain, and keep in repair and
           otherwise improve any sea wall or breakwater,
           levees, dikes, floodways and drainways,   and
           to improve, maintain and beautify any boule-
           vard erected in connection with such sea wall
           or breakwater, levees, dikes, floodways   and
           drainways, and to incur indebtedness   there-
           for . . . .

        Article 6831 provides:

           Said county commissioners' court, and munici-
           pal authorities,   shall have the power to
           impose such additional uses and burdens   upon
           all streets, alleys, public highways       and
           other public grounds      as they may     deem
           necessary    for   the   location,   erection,
           construction   and maintenance   of seawalls,
           breakwaters,   levees, dikes,   floodways  and
           drainways, and to license, regulate or grant
           such additional uses      of said    seawalls,
           breakwaters,   levees, dikes,   floodways   or
           drainways as will. not impair their effi-
           ciency.

        Article 6832 provides in relevant part:

              Said counties and cities shall have the
           power to take and appropriate such land and
           other property as may be deemed necessary for
           the establishment, location, construction and
           maintenance  of said seaways, breakwaters,
           levees, dikes, floodways and drainways,   and
           to define the area of land needed, and to




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Honorable D.R. "Tom" Uher - Page 3      (JM-1122)




          acquire, take, hold and enjoy the same for
          the ~purposes aforesaid, and to that end shall
          have the right to exercise the right of
          eminent domain and to condemn    land for the
          uses and purposes aforesaid . . . .

     Article 6837 cedes to counties and cities acting under
title 118 (articles 6830~et sea.) the right to use state
owned land and sea bottom below high tide for purposes  set
out in title 118.

     We think that the evident purpose of title 118 and
chapter 421 is flood control. See Attorney General Opinion
M-50 (1967) (stating that seawalls "are constructed as an
aid in keeping inland lands from becoming inundated by sea
water").  Also, article 6830 includes authorization       "to
improve, maintain  and beautify any boulevard     erected  in
connection with such sea wall."    See also Local Gov't Code
0 421.001(b) (authorizing contribution of funds to United
States in connection   with federal projects     relating  to
"construction or maintenance    of a seawall, boulevard,   or
other project authorized under Title 118"). The purpose    of
a public beach would be, we assume, to provide recreation.

     Case law suggests that a court would strictly construe
the applicable  statutes and constitutional    provisions  in
determining whether the commission  is authorized to expend
funds to construct or create a public beach.       See, e.a.,
Harris Countv Water Control & Imorovement Dist. No. 110 v.
Texas Water Rights Comm'n, 593 S.W.Zd 852 (Tex. Civ. App. -
Austin 1980. no writ) fconstruction of certain     recreation
facilities by a municipal utility district not authorized by
section 54.012 of the Water Code and article XVI, section
59, of the Texas Constitution):      cf.    Attorney  General
Opinion MW-313    (1981)   (river authority   authorized   to
construct certain recreation facilities on reservoir).

     Consequently, we think that the commission      has no
authority to expend funds to construct a public beach unless
a particular   public beach could somehow be accurately
characterized as a seawall, breakwater, levee, dike,  fldod-
way, or drainway,   or as a beautification measure    for a
"boulevard" erected in connection with such flood control
pr0jects.l



     1.    Constitutional   authority    for    the provisions   of
                                               (Footnote Continued)




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Honorable D.R. ltTom" Uher - Page.4     (JM-1122)




           Unless, on the facts of a particular case,
        qzEib;icabeach could be accurately character-
                    seawall, breakwater, levee, dike,
        floodway, or drainway, or as a beautification
        measure for a boulevard erected in connection
        with such a flood control project, a seawall
        commission operating under chapter 421 of the
        Local Government     Code   and   title    118,
        V.T.C.S., such as the Matagorda     County-Pa-
        lacios Seawall Commission lacks authority    to
        expend funds for the beach's      creation   or
        construction.




                                      JIM     MATTOX
                                      Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by William Walker
Assistant Attorney General




(Footnote Continued)
title 118 and Local Government Code chapter 421 is found in
article
     .  XI, section 7, of the Texas Constitution,      which
provides for the imposition of a tax "for construction    of
sea walls, breakwaters, or sanitary purposes."  Please note
that, as you do not specifically raise any such issue, we do
not here address the constitutionality of the provisions  of
chapter   421 or title     118 that relate to     improving,
maintaining, or beautifying boulevards.




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