Senator Jim Wallace                                  Opinion No.      H-,   491
Chairman,    Intergovernmental
Relations Committee                                  Re:        Constitutionality     of
Texas State Senate                                              section 54.201(b)(7),
State Capitol Building                                          Texas Water Code,
Austin,  Texas                                                  having to do with
                                                                creation of park and
Dear Senator    Wallace:                                        recreation   facilities.

     You have asked whether there is constitutional   authority for sub-
section (b)(7) of article 54. 201, Texas Water Code, conferring upon a
municipal utility district authority to provide parks and recreational
facilities for the inhabitants of the district.

    Section   54.201(b)(7),   Texas   Water   Code provides:

        A district [referring      to municipal utility districts]
        is authorized      to purchase,    construct,    acquire,  own,
        operate., maintain,      repair,   improve,     or extend inside
        or outside its boundaries        any and all works, improve-
        ments,    facilities,   plants, equipment,      and appliances
        necessary     to accomplish     the purposes of its creation,
        including all works,       improvements,      facilities, plants,
        equipment,     and appliances~incident,       helpful or neces-
        sary to:




        (7) provide parks and recreational         facilities    for the
        inhabitants in the district.

    The authority for the creation of municipal utility districts   is derived
from article 16, section 59 of the Texas Constitution,     an amendment adopted
in 1917. That section calls for the organization    of conservation  and reclama-
tion districts as determined to be essential to the accomplishment      of the
purposes of the amendment,     such districts  to be clothed with powers of




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Senator    Jim Wallace,     page 2     (H-491)




government and with the authority to exercise  such rights,                    privileges
and functions as might be conferred by law.   The purposes                    of the amend-
ment, stated in subsection  (a) are:

               The conservation      and development       of all of
          the natural resources        of this State, 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 irri-
          gation,   the reclamation       and drainage of its over-
          flowed lands, and other lands needing drainage,               the
          conservation    and development        of its forests,   water
          and hydro-electric      power, the navigation of its
          inland and coastal waters,         and the preservation       and
          conservation     of all such natural resources         of the
          State are each and all hereby declared public rights
          and duties: and the Legislature         shall pass all such
          laws as may be appropriate          thereto.

     Thus, the issue presented is whether the development       of parks and
recreational   facilities by a municipal utility district is within the consti-
tutionally stated purposes of conservation      districts.

     Provisions    of the Constitution are to be given a liberal construction     to
achieve the apparent purposes of those who have adopted the provision.
Brown County Water Improvement           District No. 1 v. Austin Mill & Grain
co.,   138 S. W.  2d  523  (Tex. Sup. 1940).   The view that the “conservation     and
development     of all of the natural resources    of this state . . . for all other
useful purposes”      includes recreational   uses is certainly not an unreasonable
interpretation.     S&e Attorney General Opinion C-436 (1965) which concluded:

          While a right to develop natural resources    for
          recreational   purposes is not specifically men-
          tioned in section 59a of Article XVI of the Texas
          Constitution,   such right would undoubtedly be
          included in the language.




                                         p. 2219
Senator   Jim Wallace,    page 3      (H-491)




    However,    in Deason v. Orange County Water Control and Improvement
District No. One,    244 S. W. 2d 981 (Tex. Sup. 1952). the Supreme Court
held that article 16, section 59(a) did not authorize the district to purchase
and construct fire control and prevention equipment.

    The Court    noted that section     59(a)

          . . . contains no language which would support a
          holding that the people in enacting the amendment
          contemplated   that a’water control .and improve-
          ment district created for the purpose of conserving
          and developing the natural resources    of the district
          would have the power to provide fire-fighting   equip-
          ment and appliances    for a town within said district.
          244 S. W. 2d at 984.

See also Attorney    General   Opinion H-28        (1973).

     But article 7880-3a, V. T. C. S., the same statute whose constitutionality
was before the court in Deason was subsequently        before the Supreme Court
in Parker v. San Jacinto County Water Control and Improvement          District
No. 1, 273 S. W. 2d 586 (Tex.Sup.     1954) insofar as the statute delegated to
a water control and improvement     district,   organized under section 59 of
article 16, the power to install a sanitary and storm sewer disposal system.
Rejecting the attack the Supreme Court said:

              Plaintiffs’ attack upon the statute fails
          because the power to erect and operate a sewerage
          disposal plant is clearly within Sec. 59a, Art. 16,
          Texas Constitution.     The water brought into the
          area by the district is not destroyed by use but
          must be returned to the hyrdological     cycle.  The
          Conservation    Amendment   to our State Constitution
          would certainly permit the purification    of water
          before it returns to the groundwater table and
          the river system.     The protection of the purity of
          the waters of this State is a public right and duty
          under the Conservation    Amendment    . . . .
          273 S. W. 2d at 586.




                                       p.   2220
Senator   Jim Wallace,    page 4       (H-491)




        Where, as here, it is the stated purpose of the constitutional
amendment to provide among other things for the conservation      and
development of natural resources     including the development of forests
and storing of the waters of the State’s rivers and streams for all
useful purposes,   we do not believe that we can say, as a matter of law,
that the use of these resources   such as waters and forests,  once developed
and conserved,   for recreational  purposes was not within the contemplation
of the people who adopted the amendment.

       It is therefore    our opinion that section        54.201(b)    (7) of the Water
Code is constitutional.

                                    SUMMARY

                      The development    of parks and recreational    facilities
                 by municipal utility districts   created under section 59
                 of article 16 of the Texas Constitution in the district’s
                 program of developing and conserving        the natural
                 resources   of the State is a constitutionally   permissible
                 activity.

                                                        Very   truly yours,




                                                    v   Attorney      General   of Texas

APPROVED:




                          , First   Assistant




C. ROBERT HEATH,          Chairman
Opinion Committee




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