               E   ATITORNES          GENERAL
                       UDP %-EXAS




Rep. John Allen, Chairman
Conservation and Reclamation
  Committee
House of Representatives
State Capitol
Austin, Texas 78711
                                Opinion No. M-346
                                Re:   Effect of H.B. No. 170,
                                      (vesting Texas Water
                                      Development Board with
                                      eminent domain powers),
                                      on existing water authori-
Dear Sir:                             ties or districts.
        Your opinion request states that the Conservation and
Reclamation Committee, Rouse of Representatives, of the Texas
Legislature,  has before it House Bill No. 170, by Clayton,
which reads aa follows:
                   "A BILL TO BE ENTITLED
                           AN ACT
            vesting the Texas Water Development Board
            with the powers of eminent domain; requir-
            ing the attorney general to represent the
            board In legal proceedings; amending Sec-
            tion 3, Chapter 425, Acts of the 55th
            Legislature, Regular Session, 1957, as
            amended (Article 8280-9, Vernon's Texas
            Civil Statutes); and declaring an emer-
            gency .
    BE IT ENACTED BY THE LEGISLATURE OF TRE STATE OF TEXAS:
     Section 1. Section 3, Chapter 425, Acts of the 55th Legis-
lature, Regular Session, 1957, as amended by Section 2, Chapter
297, Acts of the 59th Legislature, Regular Session, 1965 (Arti-
cle 8280-9, Vernon's Texas Civil Statutes), .ls amended by adding a



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Rep. John Allen, page 2(M-346)


Subsection (e) to read as follows:
   "(e) The Texas Water Development Eoard may exercise the
full powers of eminent domain. The powers are to be exer-
cised in accordance with the provisions of Title 52, Revised
Civil Statutes of Texas, 1925, as amended. The Attorney
General of the State of Texas shall represent the board in
court proceedings conducted purusant to the provisions of
Title 52, Revised Civil Statutes of Texas, 1925, as amended."
    Sec. 2. The Importance of this legislation and the
crowded condition of the calendars in both houses create an
emergency and an imperative public necessity that the Con-
stitutional Rule requiring bills to be read on three s,everal
days In each house be suspended, and this Rule Is hereby sus-
pended, and that this Act take effect and be in force from
and after its passage, and it Is so enacted."
       Your Committee requests an opinion of the Attorney
General as to "what effect this eminent domain portion of H.B.
No. 170 would have on existing water authorities and/or dis-
tricts."
       The proposed House Bill No. 170 would add a Subsection
(e) to the present Article 8280-   Vernon's Civil Statutes.
The structure of the other four 94) Subsections of Article
8280-9, V.C.S. is important. Subsection (a) defines the mem-
bership of the Texas Water Development Board. Subsection (b)
describes the Roard's duties in formulating 'a comprehensive
State Water Plan" which, when "formally adopted" by the Board
"shall be a flexible guide to state policy for the development
of water resources in this state". Subsection (c) commits
planning duties to the Board. Subsection (d) transfers
powers to the Roard.
       By adding the proposed Subsection (e) to Article 8280-9,
Vernon's Civil Statutes, the Legislature would vest the Texas
Water Development Board with the powers of eminent domain to
Implement and carry out all of the broad powers granted In the
present statute for the making and execution of the Texas
Water Plan.

       Since eminent domain Is an attribute of sovereignty,
neither a State agency nor its subdivisions can exercise such
power unless the Legislature has conferred such right by
statutory enactment. Rrazos River Conservation & Reclamation
District v. Harmon, 17e e . d 2 1,




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Rep. John Allen, page 3 (M-346)


ref. w.m.); Coastal States Qas Producing Co: v. Pate, 158 Tex.
171, 809 S.W.2d 828 (1958). In the Pate case, the Supreme
Court stated at page 831:
           "The language used by the Legislature
            may be accorded a full meaning that
            will carry out its manifest purpose
            and intention In enacting the statute,
            but the operation of the law will then
            be confined to cases which plainly
            fall within Its terms as well adsits
            spirit and purpose."
       Statutes providing for creation of water Improvement
districts and water control and Improvement districts, by the
Commissioners Court of a County or by the Texas Water Rights
Commission, grant to all of such districts, the power of eml-
nent domain. Articles 7656, 7723, and 7880-126, V.C.S. Also,
many districts specially created by the Legislature have the
power to con&mnfor the purposes of the law. (For example,
see Art. 8280-119, V.C.S.). None of these districts could
exercise the power without express permission from the Legis-
lature. Texas Law of Condemnation, by Madison Rayburn (1960),
Chapter II-A, Sec. l3(2), pages 31-32.
       While there Is nothing on the face of House Bill No.
170 which would repeal or destroy the right of a local dls-
trict to exercise its powers of condemnation as granted by the
Legislature, your attention is Invited to 22 Texas Jurispru-
dence 2d, Eminent Domain, Sec. 91-93, pages 151, et seq. Here
the text discusses the extent condemnation powers may be exer-
cised and emphasizes the fact that the Legislature  can author-
ize condemnation of property that has already been taken for
a DUblic use. It is not necessary that there be sDeclfic
statutory authorization, but it may be implied from a general
grant of the power of eminent domain. Ft. Worth & R.Q,R. Co.
v. Southwestern Tel. & Tel. Co. 96 Tex. 160, 71 S W 270 (1903);
22 Tex. Jur. 2d 152, Em. km..   Sec. 92.  It would'appear then,
that the provisions-conferring a general grant of power of
eminent domain In House Bill No. 170, when fairly read within
the four corners of the laws regulating Texas Water Develop-
ment Board, would lmplledly empower that Board in Its acqui-
sitions to implement the Texarq Water Plan to override local
district condemnation powers, subject only to money appropria-
ted by law or pursuant to certain funds created by the Con-
stitution. It must be understood, however, that in the exercise


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Rep. John Allen, page 4(M-346)



of the power of eminent domain, the Texas Water Development
Board cannot legally Impair contractural obligations of con-
servation districts without making adequate compensation to
the affected districts.
                             SUMMARY
            The enactment of House Bill No. 170 as
            proposed would, in fact, make local ac-
            quisitions by water improvement districts
            or water control and improvement districts
            in the exercise of eminent domain subordi-
            nate to those exercised by the State Water
            Development Board.

                                 V&    truly yours,



                                        ey General of Texas


Prepared by Roger Tyler
Assistant Attorney oeneral
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
George Kelton, Vice-Chairman
John Grace
Sally Phillips
John Banks
Charles Aycock




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