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                                      THE      ATTORNEY                  GESERAL
                                                   OF-TEXAS
                                                Ausrrmr.    T-a         76711




                                                           April 12, 1973

                      Honorable Cib Lewis, Chairman                    Opinion No. H- 28
                      House Committee on Natural Resources
                      House of Representatives                         Re:   Whether the Interlocal
                      Capitol Station 2910                                   Cooperation Act (Art. 4413(32c),
                      Austin, Texas 78767                                    V. T. C. S. ] would permit
                                                                             conservation and reclamation
                                                                             districts to contract for their
                                                                             fire protection needs with home
                                                                             rule cities or rural fire pre-
                      Dear Representative      Lewis:                        vention districts.

                           You have asked whether the Interlocal Cooperation Act, Article
                      4413(32c). Vernon’s Texas Civil Statutes (Acts 1971, 62nd Leg., Ch. 513,
                      p. 1971). would permit conservation and reclamation districts to contract
                      for their fire protection needs with home rule cities or rural fire
                      prevention districts.

                           The Interlocal Cooperation Act only authorizes local governments
                      to contract for another local government to perform for it a service
                      which all the parties “are legally authorized to perform”.    Art. 4413( 32~).
                      5 4(b), V. T. C. S. Therefore, a conservation and reclamation district
                      may contract for fire protection only if it has authority to provide that
                      service itself.

                              The powers of such districts are found in Article 16, 5 59(b), Texas
                          Constitution, which after authorizing the creation of conservation and
                          reclamation districts, provides:

                                 ‘I. . . which districts rhall be governmental agencies
                                 and bodies politic and corporate with such powers of
                                 government and with the authority to exercise such
                                 rights, privileges and fun.ctiona concerning the subject
                                 matter of this amendment as may be conferred by law. ”
                                 (Emphasis added)

                          The powers of such districts therefore are limited to the subject matter
                          of § 59 and by the functions conferred upon them by appropriate legislative
                          enactment within the scope of 5 59(a).

                                                              p. 118
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Honorable Gib Lewis,     page 2   (H-28)



      The “rubject matter” is defined in 5 59(a) ar:

               “The conservation and development of all of
          the natural rerources of thir State, including
          the control, rtoring, preclervation and distribution
          of ita storm and flood waters, the water8 of itr
          river8 and streama, for irrigation, power and all
          other useful purposes, the reclamation and irrigation
          of its arid, semi-arid and other landa needing irrig-
          ation, the reclamation and drainage of its overflowed
          landr, and other landn needing drainage, the conser-
          vation and development of ite fore&r, water and hydro-
          electric power, the navigation of its inland and
          coastal waters, and the preservation of all cluch
          natural reeourcea of the State are each and all hereby
          declared public rights and duties; and the Legislature
          e.hall paar all ouch lawr as may be appropriate thereto. I’

        The Supreme Court of Texan in Deason v. Orange County Water
    Control and Improvement District, 244 S. W. 2d 981 (1952), held that
    the purpose of providing fire protection “to serve moat of the houses,
    residential and businena, in the district”, was outside the “subject
    matter”.

              “Section 59(a), Article 16 . . . contains no
          language which would support a holding that the
          people in enacting the amedment contemplated
          that a water control and improvement district
          created for the purpose of conserving and de-
          veloping the natural rerourcea of the district
          would have the power to provide firefighting equip-
          ment and appliances for a town within aaid dirtrict. ”
          (244 S. W. 2d at 984)

    Under Deacon. it ia our opinion that dietricts organized under
Article 16, $ 59, having no authority to provide fire protection, are
likewise unable to contract for ouch fire protection under the Inter-
local Cooperation Act.

    Your letter specifically arka whether the use of water coneerved by
the district for firefighting would be a “urreful purpose” within the
meaning of that portion of 5 59(a) which states aa one of the purposea


                                     p. ll9
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                   Honorable Gib Lewir,      page 3   (H-28)




                   of that provision i# the conservation       of water and itr distribution for
                   “all other useful purposes”.

                       In our opinion, firefighting would be a useful purpose.. However,
                   the conrervation and distribution is authorized, not the use, and the
                   quoted language would not authorize operation of a fire department.

                        You next ask whether the purpore of “conrervation and development”
                   and preservation and conservation of resource8 ctated in 5 59(a) could be
                   construed broadly enough to allow the leare of or contract for the use
                   of firefighting equipment.

                       In our opinion, a forested district having within ita purpar es the
                   conservation and preservation of forests would be authorized by 5 59(a)
                   to employ ouch means ae were reasonably necessary for the protection
                   of fore&r from fire and to contract for those services to be performed
                   by another local government under the Interlocal Cooperation Act.       The
                   Act would not authorize contracted arrangementa for fire protection
                   of all property within the district.

                       Finally, you aak whether Deason cannot be dietinguirhed because
                   the Interlocal Cooperation Act was paared since Deason was decided.
                   The Legislature cannot expand or modify conrtitutional limitationr.
                   Arnold;.    Leonard. 273 S;W. 799 (Tex. 1925); Bexar County Hospital
                   District v. Crosby. 327 S. W. 2d 445 (Tex. 1959). The Interlocal
                   Cooperation Act doee not attempt to do so.

                                                SUMMARY

                                  Conservation and Reclamation Dirtrictr, organized
                              purruant to Article 16, 4 59, Conrtitution of Teue,    are not
                              authorized to contract with other local governments under
                              the Interlocal Cooperation Act [Art.    4413(32cHV. T. C. S. )]
                              for fire protection within the district except where necessary
                              to protect the property of the district itself and then only to
                              the extent the district itself would have been authorized
                              to furnirh ouch protection.

                                                        Very truly your*,




                                                  c/      p. 120
Honorable Gib Lewis.   page 4 (H-28)




APPROVED:




DAVID h4. KENDALL,      Chairman
Opinion Committee




                                   p. 121
