                      OFTEXAS




Hon. William E. Clayton     Opinion No. w-398
District Attorney
34th Judicial District      Re: Penal provisions punish-
El Paso, Texas                  ing directors of a Water
                                Control and Improvement
                                District, and related
Dear Mr. Clayton:               questions.
      This is in response to your request for an opinion re-
garding penalties, if any, applicable to directors of a Water
Control and Improvement District for becoming interested In
the District's contracts for construction, improvements, etc.
      In your letter you state:
         "The original formation of this District
      occurred upon applioation to the State Board
      of Water Engineers for hear1   on such matter
      under date of February 14, 19
                                  “&1. The name
      of the proposed District was to be 'El Paso
      County Water Control and Improvement District
      Number One.' The Petition set out that the
      District was to be formed pursuant to Article
      7880-i to 7880-14, inclusive, Revised Civil
      Statutes of 1925, and all amendments thereto.
      After due hearing the petition for the organiza-
      tion of this District was granted and said
      District was created and established as prayed
      for In said petition on March 17, 1941.
         "The only change In the formation of this
      District of which I can learn is an amendment
      to Article 7880-16, passed by the 55th Legis-
      lature, page 77, Chapter 36, Section 1, . . .
         "Immediately after the passage of this
      amendment this District adopted the name 'El
      Paso Valley Water District.'"
      You have asked the following questions:
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Hon. William E. Clayton, Page 2 (~-398)


        "1. Is there a penal provision punishing
     directors of a Water Control and Improvement
     District for becoming interested in the Dis-
     tri~ct'scontracts fop construction, improve-
     ments, etc.?
        "2. Is there any penal statute relative to
     corporations OP quasi municipal corporations
     which would be appliaable to the subject in a
     Water Control and Improvement District?
        '3. Has this District followed the provisions
     of Article 7880-16, R.C.S., in adopting the name
     of 'El Paso Valley Water District' and if so,
     does this change in name effect any penal pro-
     visions in present enactment on this subject?"
      Section 52 of Article 3 of the Constitution of Texas,
reads In part as follows:
               any defined district now or hereafter
     to bk described and defined within the State of
     Texas, . . . may issue bonds or otherwise lend
     Its credit . . . for the following purposes
     to wit:
         "(a) The Improvement of rivers, creeks, and
      streams to prevent overflows, and to permit
      iiavlgationthereof, OF irrigation thereof, or
      inaid of-such purposes.
        "(b) The construction and maintenance of
     pools, lakes, reservoirs, dams, canals and
     waterways for the purposes of irrigation,
     drainage or navigation.
         II. . .II

      Section 59 of Article 16 of the Constitution of Texas
reads in part as follows:
      of 'T(bba;here
                   may be created within the State
                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
-    I




    Hon. william E. Clayton, page 3 (W-398)


          shall be governmental agencies and bodies
          politic and corporate with such powers of
          government and with the authority to exercise
          such rights, privileges and functions con-
          cerning the subject matter of this amendment
          as may be conferred by law."
          sunder these constitutional authorities many types of
    districts pertaining to water have been created, such as:
    Water Improvement Districts (Chapter 2, Title 128, V.A.C.S.);
    Water Control and Preservation Districts (Chapter 3, Title
    128, V.A.C.S.); Water Control and Improvement Districts
    (Chapter 3A, Title 128, V.A.C.S.); Fresh Water Supply Dis-
    tricts, (Chapter 4, Title 128, V.A.C.S.); Levee Improvement
    Districts (Chapter 6, Title 128, V.A.C.S.); etc.
          Water Improvement Districts were authorized by the 35th
    Legislature, Acts 1917 Chapter 87, p. 172. Section 22 of
    this Act wassprInted i&Ice In the statutes, once as Article
    7654 Inthe Civil Statutes, and again as Article 379 in the
    Penal Code. Section 22 is applicable to directors of such
    districts and provided for a maximum fine of $1,000, or from
    six months to one year In jail, or both, When the statutes
    were codified in 1925, the civil statute (Article 7654, R.C.S.)
    was reenacted in Its original form, but the criminal statute
    became Article 377, P.C., and reduced the maximum fine to $100.
           Water Control and,Preservation Districts were authorized
    by’ the 35th Legislature, Acts 1916 4th Called Session, Chapter
    43, P. 74.   Section 48 of this Act'contained the penal pro-
    visions applicable to directors of such districts, created a
    felony, and set the punishment at confinement in the penitentiary
    for not less than one year nor more than five years. In the
    1925 codification this section became Article 379, P.C.
          Water Control and Improvement Districts were authorized
    by the 39th Legislature, Acts 1922 Chapter 25, p* 86.    This
    Act, which is now incor orated in $ernon's Annotated Civil
    Statutes as Articles 78 1O-l, et seq., contains no penal pro-
    visions similar to the ones quoted above for the other types
    of districts, and there was none in the 1925 codification.
    No penal statute applicable to directors of Water Control,and
    Improvement Districts has been enacted since that time; hence,
    no article is found in the Penal Code covering the directors
    of such districts.
          Article 373, V.A.P.C., makes it a misdemeanor for any
    officer of any county, or of any city or town, to become
    pecuniarily interested in any contractmade~.by:auch.county,city
                                                             ./’   -




Hon. William E. Clayton, page 4 (WW-398)


OP town, but directors of a Water Con%rol and Improvement Dis-
trict are not mentioned.
      In Attorney General's Opinion No. 1589 (1939) it was
held that a trustee of an independent school district could
not be prosecuted under Article 373, V.A.P.C. for the reason
that even If such trustee could be considered an officer
of a county, the sale of gasoline to an independent school
district is not a sale to a county, city OP town. Under
the ssme reasoning, being Interested In a contract with a
Water Control and Improvement District is not the same as
being interested in a contract with a county, city or town.
      In 34 Tex Jur. p0 479, the following statement is founds
         "No officer, any more than a private individual,
      may be punished for any act or omission as a penal
      offense unless the same is expressly defined and
      the penalty affixed by the written law."
      We are unable to find any penal statute relative to cor-
porations or quasi municipal corporations which would be appli-
cable to the directors of a Water Control and Improvement Dis-
trict being interested in the District's contracts for con-
struction, improvements, etc.
      In answer   to your questions, we advise as follows:
      1. There Is no penal provision punishing directors of
a Water Control and Improvement District for becoming interest-
ed in the District's contracts for construction, improvements,
etc.
      2. There is no penal statute relative to corporations
or quasi municipal corporations which punish directors of a
Water Control and Improvement District for becoming interest-
ed in the District's contracts for construction, improvements,
etc.
      3. In view of our disposition of Questions 1 and 2, it
is not necessary to answer Question 3.

                      SUMMARY

         There is no statute in the Penal Code punish-
      ing a director of a Water Control and Improvement
-   .-




    Hon. willism E. Clayton, page 5 (Ww-3981


              District for becomIng Interested In such Dls-
              trict's contracts for construction, Improvements,
              etc.; and there is no statute in the Penal Code
              relative to corporations or quasi municipal
              corporations under which a director of a Water
              Control and Improvement District can be punished
              for becoming Interested in such District's
              contraots for construction, Improvements, etc.
                                    Yours very truly
                                    WILL WILSON
                                    Attorney General of Texas

                                    mzihkke
                                      Assistant
    REF/fb
    APPROVED:
    OPINION COMMITTEE:
    Qeorge P. Blackburn, Chairman
    Wallace     Finfrock
    Morgan Nesbitt
    Richard B. Stone
    REVIEWED FOR THE ATTORNEY GENERAL
    By   W. V. GCEPPERT
