                                                               R-636


                     THEA~~~~~EYGENEHAL
                                olw TEXAS
                                 AUSTIN, TEXAS
PIUCE DANlEl.                                              FAOAN      DlCEE3ON
*--   CaFxuEmAL                                               nppT-A?8x



                                   August 26, 1947

        Bon. Beauford H. Jester       Opinion No. v-361
        Governor of Texas
        Austin, Texas                 Re: Rio Grande Com-
                                          pact - Authority
                                          of Compact Com-
                                          mission to amend.
        Dear Governor:
                  We have your letter of June 25, 1947, In
        which you request our opinion on certain proposed
        changes in the Rio Grande Compact. The problems
        wNch arise in this connection are set out in an ao-
        companying letter addressed to you by Hon. J. E. Quaid,
        Texas Commissioner on the Rio Grande Compact Commission,
        from which we quote as follows:
                      "I respectfullytake the liberty to
                  direct your attention to Title 128 for
                  the Revised Civil Statutes of Texas and
                  Article 7466-1,relating to the terms of
                  the Rio Grande Compact Commission. This
                  is found in the Pocket Parts of the Sta-
                  tute. Article XIII thereof.providesthat
                  at the expiration of every five years, the
                  Commission may review any provision tbere-
                  of, which is not substantivein character,
                  and which does not affect the basic prin-
                  clples upon which the Compact is founded.
                       "Last year the Hew Uexico Colmnissioner
                  made a request for a review with reference
                  to the deliveriesby New Mexico to Texas.
                  The matter was referred to the Rngineering
                  Advisors of the respective States, towit:
                  Texas, NW Mexico'and Colorado. They have
                  worked out a new schedule with reference to
                  gaging stations and measurements. They have
                  made a report back to the Commission,wNch
                  I heretith enclose. Each state is submitting
                  to its Attorney General, the question of whe-
                  ther or not, the suggested changes in the re-
Hon. Beauford H, Jester - Page 2 --V-361


     pert are substantivein character,and
     could be made wltheut amenangthe Cem-
     pact threugh the three LegiaZaturesand
     through &he Federti Qeverzsa#~t~The En-
     gineering Adviiaersstate that the eb-
     ligation8 ef the rbblpecttvestates for
     the deliveries bf water are net ahanged
     in amy mbrtantiraf$wumerb
          "I aata&hag that this sattierbe
     submzltted&e the Atterney Qeneml of
     Ten8 and an ogdaien be given ou as te
     t&et&es or'not this change colit
                                    d be aade
     without ri&aMng the said Artlale XIX1
     ef the Gempaat, Zf the Segal.prepositien
     $av~%vti is s@%mferedfavorable te the Re-
     port, then 1110
                   nemt 8tep trillbe te advise
     with the Water Bimtrj.ctebelow the EJ.ephant
     %ttte Dam, who wetid be affected favorably
     er unfamwab~y by the change* Bf coursei
     the first question bs, can this ohsnge be
     lega3ly made arithetit
                          amending the whe$e.
     Compaot?"
           We have also been furnishedwith a repert
 by the Cemmissienwhiah describes its inwertigation
 and the cencluoiensreaohed reoePnma*       the ohames.
 It is preposed te elimZnatt twe gaging stations1name-
'ly, San Acacia and San Marcia& San Narci~ is PM-
 aehtly used as the kWe0 Index statlen fer the purpose
 ef cemput%ngNew Eexiao*s ebllgatien te deliver #at&r.
 It Is preposed that a gagtig station now existing    be-
 lew ELephent Butte Reservsir be substitutedas the
 lower Index station in fiaae of San Narclafl,    Because
 of this substitution,   the tabiklationcf relPtds?nship
 betveen the upper index station (Otowi) and the lewer
 Index statlen required to determlne the aeasure if
 New Nexico's obligation to deliver water must be re-
 drawn, In addition, the measure of New Mexico's ob-
 ligatlen will, in Wcnre, be cemputed en the basis
 of twelve menth@s fkw, rather than the present nine
 month's flow. The months presently excluded are Jay,
 August and September,,,By unanimous agreement, the
 Gextsml.ssd.eners
                 find that the changes Indiaatedwill rt-
 suit in substantiallythe same ob!ligatien    and result
 as now exists under present praotiee.
         To aocempliah these changes, the Cenn~Lssion
has proposed and recommendedin its repert that rines
Hon. Beatioti Ii.Jester - Page 3--v-361


(I) and (J) of Article II of the present compact be
deleted and ,tha-t
                 Article IV be rewritten. Ue deem it
necessmy to set out In full Article IV as it present-
ly exists and Article IV as proposed by the Commission:

    Article IV (of the present Compact):
          "The obligation of Bew Mexico to
     deliver water in the Rio Grande at San
     Rarclal, during'eachcalendar year, ex-
     clusive of the months of July, August,
     and September, shall be that quantity set
     forth in the following tabulation of re-
     lationship,which correspondsto the
     quantity at the upper index station:
          "Dischaqe of Rio Grande at Otowl
     Bridge and at San Marcia1 exclusive of
     July, August and Septeatber
          Quantities in thousands of acre-feet
     Otowi Index             San Marcia1 pdex Supply   (6)
            100
            200                            65
            300                           141
            400                           219
            2::                           33Ei
                                          4669
            E
            900
           1000
           1100
           1200
           ZG
           %:
           1700
           1800
           1900
           2000
           2100
           2200                       2ilY
           2300                       2252
Eon. Beauford PI.Jester - Page 4 --v-361


         "Intermediatequantities shall
    be computed by proportionalparts.
         “(5) The Ototi Index Supply is the
    recorded flow of the Rio Grande at the
    U.S.G.S. gaging station at Otowi Bridge
    near San Lldefonso (formerlystation
    near Buckman) during the calendar year,
    exclusive of the flow during the months
    of July, August, and September, corrected
    for the operation of reservoirs construct-
    ed after 1929 in the drainage basin of
    the Rio Grande between Lobatos and Otowi
    Bridge,
          “(6) San Marcia1 Index Supply Is the
     recorded'flowof the Rio Grande at the gag-
     ing station at San Marcia1 during the cal-
     endar year exclusive of the flow during the
     months of July, August, and September.
          "The applicationof this schedule
     shall,be subject to the provisionsherein-
     after set forth and appropriateadjustments
     shall be made for (a) any change In location
     of gaging stations; (b) depletion after 1929
     in New Mexico at any time of the year of the
     natural runoff at Otowi Bridge; (c) deple-
     tion of the runoff during July, August, and
     September of tributariesbetween Otowl Bridge
     and San Martial, by works constructedafter
     1937; and (d) any transmountaindiversions
     into the Rio Grande between Lobatos and San
     Marclal.
          "Concurrentrecords shall be kept of
     the flow of the Rio Grande at San Martial,
     near San Acacia, and of the release from Ele-
     phant Butte Reservoir, to the end that the
     records of these three (3) stations may be
     correlated."
Hon. Beauford H. Jester - Page 5--v-361



         Article IV (as proposed):
         "The obligationof Hew Mexico to
    deliver water In the Rio Or&de into Ele-
    phant Butte Reservoir during each calendar
    year shall be measured by that quantity
    set forth in the following tabulation of
    relationshipwhich correspondsto the quan-
    tity at the upper index station;
    DISCRARGE OF RIO GRARDE AT OTOWI BBIDGE AND
         RLEPRAHT BUTTB EFFECTIVE SUPPLY
         Quantities in thousands of acre feet
     Otowi Index Supply (5)   Elephant Butte Effective
                              Index Supply (6)
            100
            200                      1:i
            300                      171
            400
            500                      %
             600                     345
             700                     406
             800
             900                     ;ii
            1000                     621
            1100
            1200
            5%
            1500
            1600
            1 00
            1;3
              oo-
            1900
            2000
            2100                     1695
            2200                     1795
            3::                      18%
                                     1995
            2500                     2095
Hon. Beauford H. Jester - Page 6--v-361


           2600                     2195
           2 00                     2295
           2zi
             00
           2900                     22;;
           3000                     2595
     Intermediatequantities shall be computed
     by proportionalparts.
         “(5) The Otowl Index Supply Is the
    recorded flow of the Rio'Crande at the
    U.S.G.S. gaging station at Otowl Bridge
    near San Lldefonso (formerlystation near
    Buckman) during the calendaryear, cor-
    rected for the operation of reservoirs con-
    structed after 1929 in the drainage basin
    of the Rio Grande between Lobatos and Oto-
    wi Bridge.
          “(6) Elephant Butte Effective Index
     Supply is the recorded flow of the Rlo-
     Grande at theegaging station below Ele-
     phant butte Dam during the calendar year
     plus the net.gain in storage in Elephant
     Butte Reservoir during the same year or
     minus the net loss In storage in said re-
     servoir, as the case may be.
          "The applicationof this schedule
     shall be subject to the provisions herein-
     after set forth and appropriateadjustments
     shall be made for (a) any change in loca-
     tion of gagi-hgstations; (b) depletion after
     1929 in Rew Rexlco of the natural runoff at
     Otowi Bridge; and (c) any trans-mountaindi-
     versions into the Rio Grande between Lobatos
     and Elephant Butte Reservoird"
          The Compact is shown in full as Article @66e-1,
Vernon*8 Citil Statutes. The solution to the question Pre-
sented depends upon interpretationand constructionof
Articles V and XIII of the Compact, whhichwe now copy in
full1
          ARTICLE V -
          "If at any t-e it should be the unani-
     mous finding and detemtion    of the Com-
Hon. Beauford H. Jester - Page 7--v-361



     mission that because of changed physical
     conditions,or for any other reason, re-
     liable records are not obtainable,or can-
     not be obtadned, at any of the stream gaging
     stations herein referred to, such stations ;
     may, with the unanimous approval of the Corn+
     mission, be abandoned, and with such ap-    /
     proval another station, or other stations, :
     shall be establishedand new measurements
     shall be substitutedwhich, In the unanimous
     opinion of the Commission,will result in
     substantiallythe same results, so far as
     the rights and obligationsto deliver water
     are concerned,as would have existed if such
     substitutionof stations and measurements
     had not been so made."
         ARTICLE XIII -
          "At the expiration of every five-year
     period after the effective date of this Com-
     pact, the Commissionmay, by unanimous con-
     sent, review any provisions hereof which are
     not substantivein character and which do not
     affect the basic principles upon which the
     Compact is founded, and shalI meet for the
     considerationof such questions on the re-
     quest of any member of the Commission;prOVi-
     ded, however, that the provisions hereof shall
     remain in full force ana effect until changed
     and amended WIthin the intent of the Compact
     by unanimous action of the commissioners,and
     until any changes In this Compact are rati-
     fied by the Legislaturesof the respective
     States and consented to by the Congress, in
     the same msnner as this Compact is required to
     be ratifiedto become effective."
          In our opinion, under Article XIII of the Corn-~
pact, no change in the nature of an amendment affecting
the verbiage and physically changing or revri?lting
                                                  any of
the provisions of the Compact can be made without ratifi-
cation by the Legislatures of the three states and con-
sented to by the Congress,whether the change be substan-
tivein character or not. Article XIII clearly covers
changes in this regard which are not substantive. A sub-
stantive change would necessarilyrequire ratification.
This prohibitionrelates to all provisions of the Compact,
Hon. Beauford H. Jester - Page 8--V-361



includingArticles II, IV and V, It appears from the
CommissIonIsReport that it proposes to amend the Com-
pact by substitutingmew provisions to take the place
of provisions as now wrzttten. The first two paragraphs
of CosmdssionerQuaidls letter to you indicate that the
Commissionhas proceeded in the matter of amendment un-
der and in accordancewith Article XIII, In our opinion,
the Commissionmay not proceed under Article XIII and ..
delete any provision of the Compact and substitutein
lieu thereof a new provision unless it secures ratifica-
tion as required by such article.
                                                               .
          This does not mean that the changes which the
Commission recommends and the result which It seeks to
obtain by its amendment cannot be accomplishedwithout
ratification.
          Article V specificallyanticipatesand covers
the procedural changes which the Commission seeks, It
permits accomplishmentby the actual doing of those things
the Conmdssion seems to feel can be done only by amend-
ment and actual change in the verbiage of the Compact, The
Commission expresses concern over whether or not the chan-
ges are substantive. So long as the change is permitted
by Article V, it is Wnaterlal whether the change is sub-
stantive or not, since the substantivecriteria is not a
part of Article V but relates only to Article XIII. In
our opinion, and so long as the Commission complieswith
the requirementsof Article V, It can effect the result
which it seeks by unsnlmous consent and the affirmative
doing of the thing desired and to reach this result, we see
no need to amend the Compact.
          The distinctionwe have made between Articles V
and XIII may seem contradictory, If there is contradiction,
then we are unable to reconcile these two articles which,
otherwise,would be in hopeless conflict as concerns the
matter of ratification. It is stated in Ar';icleXIII that
the Ite. e provisionshereof shall remain In full force and
effect. o . until any changes in this Compact are ratified. O *'
If it is intended that "changes" shall refer to the physical
aspects of the provisions of the Compact, rather thanto the
purposes which these same provisions intend, and this, in our
opinion, is what is meant, then there is still room within
which Article V can effectivelyoperate, since Article V ob-
viously relates to change in method, approach, or procedure
within certain applicableprovisions,namely, Articles II, III
    t
.



        Hon. Beauford H. Jester - Page g-V-361


        and IV. If, on the other hand, changes as used in
        Article XIII mean every change of result or proce-
        dure within any of the Compact provisions, then it
        takes away what has already been clearly authorized
        by Article V,
                  Assume for the purpose of this opinion
        that there is hopeless conflict between these Articles.
        In that event, under well establishedrules of ~statu-
        tory construction,which we believe are applicable to
        the Compact involved here, it is our opinion that Arti-
        cle V being specific and relating clear1 to the matters
        which it covers (ArticlesII, III and IV7 would over-
        rule and prevail over the more general purposes of
        Article XIII. See 39 Tex. Jur. 212, 59 C. J. 1000, 50
        z.RJy    2”. We consider the following language from
            . . ., pages 1010 and 1011, applicablehere:
                1,     Where there is, in the same
             stat&.td,'ageneral prohibition of a thing
             and a special permissive recognitionof
             the existence of the same thing under re-
             gulation, the particular specified,intent
             on the part of the legislatureoverrules
             the general intent incompatiblewith the
             specific one. Additional words of quallfi-
             cation needed .toharmonize a general and a
             prior special provision in the same statute
             should be added to the general provision,
             rather than to the special one.
                 ‘1
                  . . . It has been said that, in case
             of conflict between the provisions of the
             same statute, those susceptibleof but one
             meaning will control those susceptibleof
             two, if the act can thereby be rendered
             harmonious. When one section of a statute
             treats specially and solely of a matter,
             that section prevails in reference to that
             matter over other sections in which only
             incidentalreference Is made thereto: not     '.
             because one section has more force as a legis-
             lative enactment than another, but because the
             legislativemind, having been in the one sec-
             tion directed to the particular matter, must
             be presumed to have there expressed its in-
             tention thereon rather than In other sections
Hon. Beauford H,,Jester - Page 10--v&361



    where Us attention was turned to other
    things. . . ."
          In our opinion, all of the proposed changes
are within the permissiveprovisions of Article V. How-
ever, It has been with some difficulty that we have
reached this conclusionregarding inclusion of th,eJuly,
August and September flow in computingNew Eiexlcotsobli-
gation to deliver water: The Commissionmay substitutenew
measurements "which, in the unanimous opinion of the Com-
mission, will result in substantiallythe same results. . .'
and since the Comm?sslonershave all agreed that inclusion
of July, August and September flow in arriving at the new
measurementswill produce substantiallythe same result as
now obtains, we accordinglyhave concluded that such change
Is permissiveunder Art%cle V.
          In conclusion,.youare advised that, under either
of the theories advanced above, and 80 long as the COm-
mission keeps within Article V, it may accomplish the re-
sult which It seeks. The Coarmission may not change the
physical aspects of the Compact as it seeks to do by amend-
ment without ratification.




          The Rio Grande Compact Commission is
     authorizedby Article V of the Compact (Art-
     icle 7466e-1, V. C. S. ), with the unanimous
     approval of the Commission, to discontinue
     certain gaging stationsand substitutea new
     station, or stations,new periods of flow, .'
     and new tabulationsfor the purpose of measur-
     ing BlewMexicots obligation to deliver water
     into the Rio ffrande. The results achieved
     through the change must be, in the unanimous
     opinion of the Commission,substantiallythe
     same as those.whichobtain under the Compact.
     Article XIII of the Compact has no applica-
Hon. Beauford H. Jester - Page U--V-361



    tion so long as the change is contem-
    plated by Article V.
                        Yours verytruly
                    ATTOFfEEXGEKEFiAL
                                    OF TEXAS



                    m        -kXSZ-M&
                                H. D. Pruett, Jc.
                                       Assistant
EDP:bt


                     APPROVED



                           ASSISTAFT ATTORNEY GElQERAL
