                                            KEN PAXTON
                                       ATTORNEY GENERAL OF TEXAS



                                             October 17, 2017



The Honorable Lyle Larson                              Opinion No. KP-0169
Chair, Committee on Natural Resources
Texas House of Representatives                          Re: Whether a municipal utility district may
Post Office Box 2910                                    use its surplus funds to repair or replace cluster-
Austin, Texas 78768-2910                                type mailbox facilities that serve residences in
                                                        the district (RQ-0160-KP)

Dear Representative Larson:

        You tell us that residents of single-family dwellings in Wells Branch Municipal Utility
District (the~"District") receive mail in cluster-type mailbox receptacles installed by developers. 1
Attachment at 1. You relay that District residents "recently reported incidents of vandalism to,
and mail and package theft from, the cluster mailbox units" and want the District to replace them
"with something more secure."2 Id. at 2. You question whether "a municipal utility district
operating under Chapters 49 and 54, Water Code, [is] authorized by Texas law to use its surplus
funds," which include property tax and utility service revenue, "to repair or replace cluster-type
mailbox facilities." Request Letter at 1.

        Water districts operate for the purpose of protecting and preserving the natural resources
of the State. The authority and purpose of a municipal utility district, like other water districts,
stem from article XVI, section 59 of the Texas Constitution, which requires the Legislature to
"pass all such laws as may be appropriate" for the following purposes:                              '

                The conservation and development of all of the natural resources of
                this State, and development of parks and recreational facilities,
                including the control, storing, preservation and distribution of its
                storm and flood waters, the waters of its rivers and streams, for
                irrigation, power and all other useful purposes, the reclamation and
                irrigation of its arid, semi-arid and other lands needing irrigation,
                the reclamation and drainage of its overflowed lands, and other
                lands needing drainage, the conservation and development of its
                forests, water and hydro-electric power, the navigation of its inland

        1
          See Letter and Attachment from Honorable Lyle Larson, Chair, Comm. on Nat. Res., Tex. House of
Representatives, to Honorable Ken Paxton, Tex. Att'y Gen. (Apr. 7, 2017), https://www.texasattomeygeneral.gov/
opinion/requests-for-opinion-rqs ("Request Letter" and "Attachment," respectively).
         2 Residents have also noted that the cluster mailbox units do not appear homogenous and suggest that

replacing them with color-uniform units could increase property values in the District. See Attachment at 2.
The Honorable Lyle Larson - Page 2             (KP-0169)



               and coastal waters, and the preservation and conservation of all such
               natural resources of the State ....

TEX. CONST. art. XVI,§ 59; see also Monsanto Co. v. Cornerstones Mun. Util. Dist., 865 S.W.2d.
937, 940 n.4 (Tex. 1993) (noting that municipal utility districts are created pursuant to article XVI,
section 59 of the Texas Constitution). Consistent with this constitutional provision, the Legislature
authorized the creation of municipal utility districts for the following purposes:

               (1) the control, storage, preservation, and distribution of its storm
                   water and floodwater, the water of its rivers and streams for
                   irrigation, power, and all other useful purposes;

               (2) the reclamation and irrigation of its arid, semiarid, and other land
                   needing irrigation;

               (3) the reclamation and drainage of its overflowed land and other
                   land needing drainage;

               (4) .the conservation and development of its forests, water, and
                    hydroelectric power;

               (5) the navigation of its inland and coastal water;

               (6) the control, abatement, and change of any shortage or harmful
                   excess of water;

               (7) the protection, preservation, and restoration of the purity and
                   sanitary condition of water within the state; and

               (8) the preservation of all natural resources of the state.

TEX. WATER CODE§ 54.012.

        Water districts in Texas, including municipal utility districts, may "exercise any powers
within 'the terms of the statutes which authorized their creation, and they can exercise no authority
that has not been clearly granted by the legislature."' Bexar Metro. Water Dist. v. City of
San Antonio, 228 S.W.3d 887, 890 (Tex. App.-Austin 2007, no pet.) (quoting Tri-City Fresh
Water Supply Dist. v. Mann, 142 S.W.2d 945, 948 (Tex. 1940)). Subsection 54.201(a) of the Water
Code broadly vests a municipal utility district with "the functions, powers, authority, rights, and
duties which will permit accomplishment of the purposes for which it was created." TEX. WATER
CODE§ 54.201(a). Other provisions of the Water Code specify particular powers. For example,
subsection 54.201(b) of the Water Code authorizes a municipal utility district "to purchase,
construct, acquire, own, operate, maintain, repair, improve, or extend ... any and all works,
improvements, facilities, plants, equipment, and appliances necessary to accomplish" authorized
purposes of the district, including any that are "incident, helpful, or necessary" to engage in the
following specifically enumerated powers:
The Honorable Lyle Larson - Page 3                       (KP-0169)



                   (1) supply water for municipal uses, domestic uses, power, and
                       commercial purposes and all other beneficial uses or controls;

                   (2) collect, transport, process, dispose of, and control all domestic,
                       industrial, or communal wastes whether in fluid, solid, or
                       composite state;

                   (3) gather, conduct, divert, and control local storm water or other
                       local harmful excesses of water in a district;

                   (4) irrigate the land in a district;

                   ( 5) alter land elevation in a district where it is needed;

                   (6) navigate coastal and inland waters of the district; and

                   (7) provide parks and recreational facilities for the inhabitants in the
                       district, subject to the provisions of Chapter 49.

Id. § 54.201 (b). Additionally, subsection 54.236(a) allows a municipal utility district to "purchase,
install, operate, and maintain street lighting or security lighting within public utility easements or
public rights-of-way or property owned by the district." Id. § 54.236(a). Certain municipal utility
districts may also "repair or maintain a street within the district." Id. § 54.242.

         However, we find no direct statutory or constitutional authorization to repair or replace
mailbox facilities, nor have you identified how such repair or replacement would permit the
broader accomplishment of one of the purposes for which the District was created. 3 Without such
authorization, the District may not use its surplus funds to repair or replace cluster-type mailbox
facilities that serve residences in the District. See Tex. Att'y Gen. Op. No. JM-1173 (1990) at 1
(noting that a "municipal utility district can exercise no authority that has not been clearly granted
by the Legislature").




          3
            Because we find no source of authority for the repair or replacement of mailbox facilities, we do not address
the distinction in the District's surplus funds between tax revenue and utility service revenue with regard to any
constitutional spending implications that may exist. See Tex. Att'y Gen. Op. Nos. JM-1173 (1990) at 7-8 (concluding
that a municipal utility district could not use tax funds to purchase real property for the independent purpose of having
it used as a public park because it served no constitutional purpose); JM-1259 (1990) at 3, 5 (stating that the conclusion
of JM-1173 "is confined to the use of tax monies" and noting that when the Legislature grants a water district authority
not subject to the constitutional limitations on taxing or incurring debt, the authority "need not" further a constitutional
purpose to be valid).
The Honorable Lyle Larson - Page 4           (KP-0169)



                                      SUMMARY

                      The Wells Branch Municipal Utility District may not use its
              surplus funds to repair or replace cluster-type mailbox facilities· that
              serve residences in the District.

                                             Very truly yours,




                                             KEN PAXTON
                                             Attorney General of Texas



JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy First Assistant Attorney General

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

BECKY P. CASARES
Assistant Attorney General, Opinion Committee
