Mr. A. C. Spencer,
Executive Director,
Texas State Soil ConservationBoard,
1012 First National Bank BulldIng,
Temple, Texas
                            Opinion No. WW-423.
                           Re:   Is It legai for a Soil
                                 ConservationDistrict,
                                 created under provisions
                                 cf House Bill 444, Acts,
                                 47th Legislature,1941,
                                 Chapter 308, page 491,.to
                                 accept conditioned ease-
                                 ments for flood prevention
                                 structures, In which a
                                 Soil ConservationDistrict
                                 assqes financial responsi-
                                 bility for damage to utility
                                 Ones and other Installations;
Dear Mr. Spencer:                and related questions.
          We have received yo;lrr?q~est, dr5ed Rarch 31, in
which yea ask cur cn;(nlosconcerning a Soil Conservation
Dlstr5cf, created under rrovisiocs of souse Bill 444, Acts,
47th Leglslaflre, 1941, Cfia>ter399, page 491. You state
the Distr:z% is no furnish, wi';hcz;.
                                    cost tc the federal
gcvernmert,al; easements 235 rLghts of way necessary for
a proposed flood Drevent'ci!struc%re. The AinericanTele-
&one and Telegraph Ccmsany has cffsred tne District an
easement to Impound water ever t!!eirright of way contaln-
ing the Holdenville-Dallas"A" azd "Brcbur:ed comnunlcatlon
=ables, conditioned,however, ;;p~nS-heDistr:cs assuming
flnacclal responsibilityfor any-dazape to the cables, re-
sulting from constrac5ioncr maZnten&nce of the structure,
or occasioned by Its employees, contractors, land-owners
or others.
          You have reTJested o'Jropinion on four questions,
 substantiallgas follows:
or. A. C. Spencer, Page 2 @W-423).


         1. Is It legal for a Soli Conservation
    District, created under provlslons of House Bill
    No. 444, Acts, 47th Legislature,to accept
    conditioned easementsfor flood prevention
    structuresIn which the Soil Conservation
    District assumes flnanc:al responslbllltyfor
    damage to utility lines and other Installations?
          2. If a Soil ConservationDistrict should
     assume financial responslbllltyfor damage tc
     utility lines and In the constructionprocess
     damage occurs, could fznds appropriatedfor use
     of the Soil ConservationDistrict by the Texas
     Legislaturebe used to pay such damsges?
          3. Could funds earned from the use of State
     appropriatedfunds be used to pay such damages?
          4. What personal flnanclai llablllty fcr
     damages to utility lines could be attached to
     Individual Soli ConservationDlstrlct Supervisors,
     If such a conditionedeasemect is accepted?
          A Soil ConservationDistrict Is a governmental
subdivisionof this State, and a public body corporateand
politic, which exercises public powers in acccrd2rcewith,
and for the purposes set forth is the State Scli Ccnserva-
tlon Law. House Xii 444, Acts, 47th Leglsiakre, Sections
1, 3 and 7.~ Such Dlstrlcts have the expressed go&e?:
          "(Sec. 7-(3)) Tc obtain oDt1or.aupon ard
     to acquire, by purchase, exchange, lease, gift,
     grant, bequest, devise or otherwise, an-ypr;l;-
     erty, real or personal, or rights or interests
     therein; to maintain, iidmlnlster,and lqrove
              n+qes acquired, . . .
     any propeAu-
          "{Sec. ?-(51) To construct., lm;-rcve,and
     maintain such structuresas may be necessary or
     convenient for the performanceof any of the
     operations authorizedIn this Act;
          "(Sec. 7-(7)) . . . ~tc manage, as agent of
     the United States or any of its agencies, or cf
     this State or any of Its agencies, any soil con-
     servation, erosion control, or erosion prevention
     project within Its boundaries; . . .I'
.




    or. A. C. Spencer, Page 3 @W-423).


              The "conditionedeasement" you mentioned Is, In
    reality, an easementwhich would give the District a right
    to flow and Impound water over the Company'sright of way;
    coupled with the District's covenant to Indemnify the Com-
    pany for all possible damage to the Company'sproperty.
    The statute (Sectlon,,3)empowers the District to acquire,
    by means specified, . . . any property, real or personal,
    or rights or Interests therein; . . .I'. Clearly, the Dls-
    trlct 1s authorizedto secure easements,but a question
    presents Itself as tc whether the District may make cove-
    nants of the nature In question.
              A soil conservationdistrict, like other districts
    created under Section 592 of Article )tEtof the Constitution
    of Texas, and s,tatutesenacted t'nereundercarrying out the
    purposes of such constltutlonaiprovisions,is the political
    subdivisionof the State, performing governmentalfunctions,
    and standing upo
    political subdlv
    County Water ImprovementDistrict No. 1, 153 Tex. 599, 272
    ‘S.W.2d 498, and authorities therein cited.
              The proposed covenant, whereby the Soil Conservation
    District wouid obligate Itself C,L
                                    r indemnify the company for
    'any damage to~the cables resulting from ccnst,ructlon~
                                                          or
    maintenanceof the structure, or occasionedby its (the Ms-
    trlctls) employees,contractors,la?d cwners cr others" would
    contravene the well estabitshed ---lie
                                         ;iat such political sub-
    divisions may not become an irdem?i5or.
              3 this effect, see Gal-Test:? ??.& S.A.Ry. Co. v.
    Zraide County, 167 S.W. 2d 305, [wr-lr.
                                          rsfzsei,want of merit),
    In which the following statements are made:
                   "We conclude there was T;Serror in Yze
         Cour:'s action In dismissing the cause, because
         the claimed contract was ultra vlres and the county
         had no authority to enter ia3 the alleged csntract
         of lndemni,*j.. . .
                   I,
                    . . . It 1s a contract whereby the County
         of Uvalde agrees to Indemnify the Railrcad Companies
         against all loss they may sustain by reason of a
         dipping vat being placed In the shlaplngpens of the
         Railroad Companies, regardless of how such damage
         may arise and regardless of whose negligencemay have
         caused the damage, and regardless cf how'great the
         loss may have been ormay be In the future.
Mr. A. C. Spencer, Page 4 (WW-423).


              "The County of Uvalde unquestionablyhad
    authority under the statutes to enter Into a contract
    with the Railroad Companies for the privilege of
    erecting a dipping vat wIthIn the stock pens owned
    by the Railroads,but such authoritywould not justl-
    fy a contract to Indemnify the Railroadsagainst all
    loss which might thereafterarise as a result of such
    vat being so located,regardless of how such loss
    might arise or whose negligencemight c2use such loss.
    . . .
              "    . It Is argued that Uvaide Ccunty
    co'uldnot.h&i secured permIss?.on frcm the Raiircad
    Companies to constmrctsuch vat in their &IopIng
    pens If It had not entered l'nto2 contraztc? lndem-
    nlty with the RaIlroads. This may be true, but, If
    so, the county should have simply located the vat at
    some other place. It could not use ttiIsfact as an
    excuse'forpledging the credit  of the county to cover
    an unlimited llabllltywhich might arise In the future
    and thereby subject the ccunQ to possiblefinancial'
    ruin."
          In answer to your first q':eet:on, It is our cplnlon,
and you are so adVised, that a Soii Csnse-rvation Dlst;",ctmay
not assume financialrespcnslbllityfor 'any damage to the
cables resultingfrom construct:o~  of the etnuctme”   as pro-
posed.
          This :e PC+ t.2say Y&t;, under 5.5p54:p +A
                                                  .ai--~i:rstagces,
                                                        .d.._*
such a District could not Incur l<abilI';y to ti-;e
                                                  Zcrpany for
taking or damaging Company prQ>erty :ir,derthe pxvFei$rs cl'
Section 17 cf Article I of .theCcnetitefIcnof Texas. ?he
deter3Ic2tlveqxstim    ttier5 w.cuidbe C~O~Lr~ll~db-ya particil-
lar set of facts which may or msy no,';etist at home time In
the f?ukre, upon which tk?isDepartme-', -Lagnet r;Tdpass.
          In view of cur answer to yccr quesc,ic-r!
                                                No. I, we
deem it -mnec.essaryor,answer q~s%~cs Ros. 2, 3 and a.

                            SL!Y
                A Soil ConservationDIstrlct, created
                under House Bill 444, Acts, &7th Legls-
                lature, 1941, Is a pciiticai s%bdivl&Icn
                of the State, standing on the same foot-
                ing as counties; It Is au';horizedto
                secure easements,but may not ass‘tie
!Q. A. C. Spencer, Page 5 W-423).


               flnanclal responsibilityfor all
               damage to property which may result
               from its activity, for such would
               be a prohibited contract of
               Indemnity.
                                    Yours ve* truly,
                                    WILL WILSON
                                    Attoxey General of;Texas

                                    By   JQvdkw*
                                          ?.:mI. McFarling
                                          Assis",ant
TIM:pf
APPROVED:
OPINION COMMITTEE
Geo. P. Biackburn, Cbalrman
Riley Etagene Fletcher
Harris Toler
REVIEWEDFORTREAT?ORNEY     GEKERAL
By: W. V. Gqper:.
