Honorable George R. Sheppard
Comptroller of Public Accounts
Austin 11, Texas

Dear Sir:                                No. 0-7058
                                 Opi~ni~on

                                 Re:   Whether Colorado County may
                                       lawfully use remitted tax money for
                                       the purpose of buying right of ways
                                       and maintaining levees in certain
                                       portions of the County under the facts
                                       submitted.

Your request for opinion has been received and carefully considered by
this department. We qucte from your request as follows:

     "The 47th Legislature created a flood control district in
     Colorado County. The 49th Legislature oassed an act remitting
     one-half of the State ad valorem taxes due Colorado County
     to be used in connection wj~thflood control.

     "The County Judge of Colorado County asked this department
     for permission, under the above-stated low, to use this
     remitted tax money due Colorado County for the purpose of
     buying rights-of-way and maintaining levees in communities
     wit in the County tihichcontemplate voting flood control
     districts. The information as given to this department is
     that the distrjcts are not county-wide, and since Colorado
     county. as a whole, is a flood control district, this
     department is uncertain as to the County's right to spend
     the tax money for such purpose."

You have also given us the further information that the ri~ghtof ways
referred to in your letter are right of ways for levees.

Article IV of House Bi~ll362, Acts of the 47th Legislature of Texas,
1941, created Colorado County Flood Control District and defined its
powers. We quote from the Act as follows:

"Section 1.   Colorado County Flood Control District Created.
                                                                     ..




Honorable George H. Sheppard, page 2   (O-7058)




     "There is hereby created and established within the State
     of Texas in addition to the districts into which the State
     has heretofore been divided, in the form and manner herein-
     after provided, a conservation and reclamation district to
     be known 55 Colorado County Flood Control District, herein-
     after called the District, and consisting of that part of the
     State of Texas which is known as and included within the
     boundaries of the County of Colorado. Such distrj~ctshall
     be a governmental agency and body politic and corporate,
     with the powers of government and with the authority to
     exercise the rights, privileges, and functions hereinafter
     specified, the creation and establishment of such District
     being essential to the accomplishment of the purposes of
     Section 59 of Article XVI of the Constitution of the State
     of Texas, as amended, including the control, storing,
     preservation, and distribution of the storm and flood waters,
     and the waters of the rivers and streams in Colorado
     County and their tributaries, for domestic, municipal,
     flood control, irrigation, and other useful purposes, the
     reclamation and drainage of the overflow land of Colorado
     County, the conservation of forests, and to aid in the
     protection of navigation on the navigable waters'by
     replating the flood and storm waters that flow into said
     navigable streams.

     "The Commissioners Court of Colorado County, Texas, is hereby
     designated as the governing body of such District and the
     agency through which the management and control of the
     District shall be administered, and it is hereby empowered
     to do any and all things necessary to carry out the aims
     and purpose of this Act.

     "Sec. 2. Added Powers. In addi'tibnto the powers given to
     the Commissioners Court by General Laws and in addition to
     the general powers herein given, it shall be authorized in
     connection with the Colorado County Flood Control District
     to exercise the following added rights, powers, privileges,
     and functions:

     "a. To acquire land and rights and interest therein and any
     other character of property needed to carry on the work of
     flood control, by gift, devise, purchase, or condemnation;

     "b . To sell. trade, or otherwise dispose of land or other
     property or righfitstherein
                               when the same are no longer needed
     for the project or flood control purposes;
-.




     Honorable George H. Sheppard, Page 3   (o-7058)




         “C . To appoint a flood control manager and such agents and
         employees of the County for flood control purposes as may be
         necessary, including an engineer and counsel, and to prescribe
         their duties and fix their bonds end compensation;

         "d. To authorize its officers, employees, or agents to go
         upon any lands lying within the District for the purpose of
         making surveys and examining the same in connection with
         flood control plans and projects, and for any other Lawful
         purpose within the scope of its authority;

         "C?. To devise plans and construct works to lessen and control
         floods; to reclaim lands in the District; to prevent the
         deposit of silt in navigable streams; to remove obstructions,
         natural or artificial, from streams and water courses; to
         regulate the flow of surface and flood waters; and to provide
         drainage where essential to the flood control project;

         "f . To exercise all powers, rights, privileges, and functions
         conferred by general law upon flood control districts created
         pursuant to Section 59 of Article XVI of the Constitution of
         TW3S, as amended, so far as the same may be applicable to
         Colorado County and essential to the flood control project;

         mg. To cooperate with and contract with the United States
         of America or with any of its agencies now existing, or
         which may be created hereafter, for grants, loans, or
         advancements to carry out any of the powers or to further
         any of the purposes set forth in this Act and to receive and
         use said moneys for such purposes; or to contribute to the
         United States of America or any of its agencies in connection
         with any project undertaken by it affecting or relating to
         flood control in Colorado County;

         "h. To cooperate with, or to contract with any egency or
         political subdivision of the State, or any city or town
         within Colorado County in relation to surveys, the acquisition
         of land or rights of way, the construction or maintenance
         of projects or parts thereof or the financing of the same in
         connection with any matter within the scope of this Act;

          "i-. TO sue and be sued in anyproper case under the laws
          of th+s State; .and allCourt'~ahall take judicial notice
          of the establishment of the said District; and
          St
           j.  To do any and all other acts or things necessary or
          proper to carry.into effect the foregoing powers.

          "X * *
                                -"
Honorable George B. Sheppard, page 4   (o-7058)


     "Sec. 10. Eminent Domein. The Colorado County Flood Control
     District shall have the right and power of eminent domain
     for the purpose of acquiring by condemnation any and all
     property of any kind, real, perronal, or mlxed, or any interest
     therein, within the boundaries of the District, necersary or
     convenient to the exercise of the rights, powers, privileges,
     and functions conferred upon It by this Act, in the manner
     provided by General Iew with respect to condemnation,,or, at
     the option of the Commissioners Court, in the manner provided
     by Statutes relative to condemnation by districts organized
     under General Iew pursuant to Section 58 of Article XVI of
     the Constitution of the State of Texas, as amended.



    “The Commissionera Court, in Its discretion, may utilize the
    tax funds donated and manted by the State of Texas for the
    construction of flood uontrol improvements and other
    improvements and purposs authorized by such enactments and
    the maintenance or operation thereof; or may deposit the
    same in a sinking fund to pay interest on and to redeem
    bonds of said Dietrlct or other obligations issued for such
    purposes,in the manner hereinafter provided.

     “Sec. 12-b. Issuance of Bonds. The County of Colorado, Texae,
     acting by and through its Commissioners Court, shall have
     authori.tyand it is hereby authorized to issue its negotiable
     bonds secured by a pledge of any such taxes hereafter donated,
     granted, diverted, or remitted by the State of Texas to it
     or the Flood Control District created herein, and the
     proceeds of the sale of such bonds may be used for purchasing
     lands, easements, rights of way, structures, and for the
     construction of improvements, including dams, reservoirs, and
     all other works suitable for use in connection with the flood
     control program and projects in said County and the maintenance
     and operation thereof, and doing all things necessary to the
     execution of the purposes for which the grant and donation
     is made; provided, however, that the aggregate amount of bonds
     to be issued shall not exceed such sum as the ,donationand
     grant of the State taxes will service so as to pay interest
     and to create a sinking fund sufficient to pay said bonds
     at maturity. * * *” (Underscoring ours)

Senate Bill 77, Acts of the 49th Legislature of Texas, 1945,reads in part
as follows:

     “Section 1, The Legislature ftnds and declares that the
     recent and recurring floods in the Lavaca and Navidad
     Rivers and other streams and tributaries in Jackson County
,.   .    L




         Honorable George H. Sheppard, page 5   (0-7058)



              and the recent floods in the Colorado River and other streams
              and tributaries in Fayette County and the recent floods in
              the Colorado River and other streams and tributaries In
              Colorado County, with the consequent loss of lives and of
              property to the extent of many millions of dollars, and the
              continued threat to adjacent lsndovners and business of
              said counties, constitutes a public calamity to the State
              of Texas and to the people and property within the said
              counties.

              "X * *

              "(c) For a period of ten (lO),years, commancing with
              September 1, following the adoption of this Act there
              is hereby donated and granted by the State of Texas to the
              Colorado County Flood Control District one-half ($)of the
              state ad valorem taxes collected for general revenue purpcees
              upon the property and from persons in Colorado County,
              which taxes when collected shall be used by the said
              county for the Wposes   of preventing the continued publiic
              calamity, caused by great floods, and ,to construct im-
              provements to control flood waters in the said county for
              the protection of life, property, soil, forests, and public
              highways lying within the said county.

              'I** *

              "The Commissioners Court of each county, in their discretion,
              may utilize the tax funds donated and granted by the State
              of Texas for the construction of flood control improvements
              and other improvements; the maintenance and operation thereof;
              or nay deposit the same in a sinking fund to pay interest
              on and to redeem the bonds of the respective flood control
              districts of the respective counties. . .(t
              (Underscoring ours)

         Under the above-quoted statutes, the Commissioners Court of Colorado
         County, Texas, as the governing body of Colorado County Flood Control
         District, has wide and broad discretionary authority with respect
         to the construction and maintenance of improvements to control flood
         waters in the entire area of Colorado County, including any and all
         portions of such County, for the protection of life, property, soil,
         forests, and public highways lying within the County.
Honorable George H. Sheppard, page 6   (O-7058)



If the Commissioners' Court of Colorado County, Texas, as the governing
body of Colorado County Flood Control District determines that the
right of ways for levee purposes and the maintenance of the levees in
question are necessary and proper for the control of flood waters in
the County, it is our opinion that the remitted tax money described
by you could clearly be used for such purposes under the facts stated.

This opinion, however, does not pass on the validity of the creation
or organization of the contemplated flood control districts mentioned
in your letter as that question is not before us.

                                    Very   truly yours

                              ATTORNEY GJZNERALOF TEXAS

                                s/ Wm. J. Fanning



                               BY
                                    Wm. J. Fanning
                                         Assistant

WJF/JCP.T/ldw

APPROVED FEB. 5, 1946
s/ Carlos C. Ashley
First Assistant
Attorney General

APPROVED OPINION COMMITTEE
BY B. W. B.
CHAIRMAN
