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                       E            O~KNEY         GENERAL
                                  OFTEXAS




        fb;mra&e    R. Ii. Cory              Opinion NO. W-621
        State Affairs Committee              Re:    Constltutlonallty  of H.B.
        Austin, Texas                               142, of the 56th Leglsla-
                                                    ture, authorizing  the State
                                                    Parks Board to acquire pub-
                                                    lic sites in proximity to
                                                    the shores of public lakes,
                                                    bays and gulfs for recrea-
        Dear Mr.   Cory:                            tlon purposes.
                  You have asked our opinion on the constitutionality of
        H.B. 142, specifically in regard to whether the words "on or in
        proximity to" are too vague and indefinite to authorize a condem-
        nation.
                    The provision     of the bill    in question   Is:
                    "Section 1. The State Parks Board Is hereby
             authorized to acquire,      by gift,  purchase or con-
             demnation, and to improve and maintain public sites
             on or In proximity to the shores of public lakes,
             bays and gulfs 'for parking vehicles,       for camping,
             picnicking,    boat launching,    and other recreational
             purposes.     The acquisition   of such properties    and
             the imprdvement and maintenance of same by the State
             Parks Board shall be covered specifically        by funds
             allocated    under the current appropriations      of the
             Texas Legislature.      The proceedings    for condemnation
             of property under this Act shall be Instituted         and
             conducted in accordance with Title 52 of the Revised
             Civil Statutes."
                   There is no constitutional   requirement that the Leg-
        islature limit the location    of land that may be taken under a
        condemnation statute.   1.6 Tex.Jur.,  Eminent Domain, 8 130 states:
                                                                          .       .




Honorable   R. H. Cozy, page 2 (~-621)

             “It seems that the plenary power of the leg-
      islature   ,over the subject of eminent domain autho-
      rizes It to designate,     In each delegation     of the
      right to exercise    the power, the particular      prem-
      ises which the grantee may take.         The general pur-
      pose being public,     the legislative    body may define
      the extent of the appropriation        necessary to the
      public use.     But this it has not, for the most
      part, attempted to do, because it would be obvi-
      ously Impracticable     to fix in advance the amount
      or location    of land which a grantee some day might
      condemn for one or more of its purposes.         . , .n
              However,    since H.B. 142 restricts         condemnation there-
under to land !‘on or in proximity to” public lakes, bays, and
gulfs it would be a fact question whether a given tract was so
situated.      In McGhee Irrigating         Ditch Co. v. Hudson, 22 S.W.
398 (Sup.Ct. 1893)          it was contended th t condemnation Dower
granted In Acts of’1889,           21st Leglslatu:e,     Regular Session,
page  100,    chapter    88,  was   void   for  uncertainty.    The first  sec-
tlon of the act stated:
              II     . that the unappropriated waters of every
      river    k’natural       stream within the arid portions        of
      the State of Texas, in which, by reason of the ln-
       sufficient     rainfall,     irrigation    is necessary for
      agricultural       purposes, may be diverted from its na-
      tural channel. , . .‘I
The Court approved the Court of Civil           Appeals holding     by stating:
            11      the act was not Inoperative  because of
      Its fail&i    to designate the territory  which should
      be deemed the ‘arid portion of the State’ . . .
      This would have probably been impracticable     . . .
      This was a question of fact to be determined as any
      other fact,.”
          The Court in Brazos River Conservation & Reclamation
Dlst. v. Harmon, 178 S.W.2d 281 (Civ.App. 1944, ref. w.o.m.),
stated:
            “The right to exercise the power of eminent
      domain must be conferred by statute,   either In
      express words or by necessary implication.”
-   .




        Honorable   R. H. Cory, page 3 (WW-621)

                    'Proximity"   has a sufficiently   definite meaning to
        convey the legislative      intent.  Webster's New International
        Dictionary,    2nd Edition,   Unabridged, defines "proximity'    as
        follows:
                   "Quality or state of being near or very near
             in time, place, causation,  Influence,  relationship,
             etc.;  Immediate or close propinqulty."
                    In Lacky v. Gulf C & S Ry. Co., 225 s.w.2d 630 civ.
        App. 1949), It was held that the stat&e        (Sub. (d), Sec. 86,
        Art. 6701d, V.A.C.S.)    requiring a vehicle driver,     approaching
        a railroad   crossing to stop within 50 feet and not less than
        15 feet from nearest rail and proceed no farther until he can
        do 80 safely,    when approaching train Is "plainly     visible"  and
        Is in "hazardous proximity"     to the crossing,    Is not unconsti-
        tutional   because of indefiniteness.
                   We are of the opinion that the phrase "on or In prox-
        imity" as used in H.B. 142 is specific    enough to define the re-
        striction  intended therein,  and that, therefore,  H.B. 142 is
        not unconstitutional  for indeflnlteness.
                                       SUMMARY
                    H.B.   142 of the 56th Legislature  authorizing
             the State     Parks Board to acquire public sites in
             proximity     to the shores of public lakes, bay&and
             gulfs for     recreational purposes Is not unconstltu-
             tional.
                                          Yours   very   truly,

                                          WILL WILSON
                                          Attorney General of Texas



                                          BY
        JAO:dhs
                                        Assistant
        APPROVED:
        OPINIONCOMMITTEE:
        Ceo. P. Blackburn, Chairman
        Houghton Brownlee, Jr.
        Joseph Q. Rollins,     Jr.
        James R. Irlon,    III
        W. Ray Scruggs
        REVIEWED FOR THE ATTORNEY  GENERAL
        BY: W. V. Geppert
