Untitled Texas Attorney General Opinion

August,4, 1967

eon. F. .R. Booth Opinion No. M-116 Executive Director Texas Water Rights Commission Re: Navigation end reclamation Sam Houston State ~Office Building powers of Flamingo Isles Austin, Texas 78711 Municipal Utility District.

Dear Mr. Booth:

You have requested my opinion es to the constitutionality of navigation end reclawation along the Texas coast, or coastal islands, in the manner proposed by Flawing0 Isles Municipal Utility District. You request answers to the following questions:

1. Is the dredging of canals which will be used for ~recree- ” tional end pleasure boating end for access to houses within the District en euthorised project for which’bonds may be issued, under the powers of a water control and improvement district for navigation of its coastal and inland waters and the reclamation and drainage of overflowed and other lands needing drainage in the District?

2. Is depositing end leveling fill on private property of a developer end construction of bulkheads an authorieed pro- ject for which bonds may be issued, under‘the powers of a water control and improvement district for navigation of its coastal and inland waters end the reclamation and drain- age of overflowed end other lends needing drainage-in the District?

This district was created by the Texas legislature (Article 8280-327, Vernon’s Civil Statutes) and such a statute es this has been held to be ~a general law as distinguished from a locel or special act. It is not in contravention of Article,III. Baetion 56 of the Texas Constitution. L.C.R.A. v. UcCrew. 125 Tax. 26g, 83 S.W.Zd 629 (1935); L.N.V.A. v. m, 140 Tex.,2%, 167 S.W.2d 1011 (1943); Atwood v. Willecy County Nav. Dist.. 271 S.W.2d 137 (Tex.~Civ. App. 1954. Ref. N.R.E.); Countv of Kron v. Wilson, 160 Tex. 25. 326 S.W.2d 162 (1959)‘,; Sullins v. City of

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. . Hon. F,. R. Booth, page 2 (M-116)

e, 336 S.W.2d 814, (Tex. Civ. App. 1959, no writ). All of Chapter 3A, Title 128, V.C.S. relating to water control and improvement dis- tricts is incorporated by reference into Article 8280-327, the organic law of this district, and such laws apply when they are not in con:. flict with the act creating this district. Sec. 3, of Art. 8280-327; Trim&r v. Carlton, 116 Tex. 572, ,296 S.W. 1070 (1927); Hidalgo County W.C.I.D. No. 1 v. Hidalgo County, 134 S.W.2d 464, (Tex. Civ. App. 1939, Error Refused). It is valid to incorporate the nsvigation and reclama- tion statutes relating to general law water ,control and improvement districts by reference into the organic law of Flamingo Isles Muoicipal Utility~ District. Road Dist. No. 1, Jefferson County v. Sellers, 142 Tex. 528, 180 S.W.2d 138 (1944); v. Yates, 145 Tex. 38,, 194 S.W.2d 395 (1946); Newton Lumber Company v. Newton Countv Water Supply District, 328 S.W.2d 461 (Tex. Civ. App. 1959, no writ). Lower Nueces River Water Supply District v. Cartwright, 274 S.W,Zd 199, 207 (Tex. Civ: App. 1954, Ref. N.R.E.).

The Texas Constitutional provision under which this District was organized plainly provides for “the reclamation and drainane of its m ” end for “the of its i nlan d and coastal iaters.” Art& XVI, Sec. 59, Texas Constitution. By the provisions of certain general ,stetutes relating to water control and improvement districts, the Legislature has declared that “such districts shall be ornanized end ouerated under the conditions, provisions. authority and restrictions” provided in.Article,XVI, S~ec. 59 of~our Texas Constitu- tion. Articles 7880-l and 7880-7, Vernon’s Civil Statutes.

Section 3, of Article 8280-327, givesFlamingo IslesMunicipal Utility District:

II~ . . all of the . e . powers a a s conferred . d . by Chapter 3A of Title 128, Revised Civil Statutes of Texas, 1925, , L a includine all oowers and euthoritv relating to the navigation pf its coas.&& and inland wateX.8 md the reclamation and drain- age of_nverflowed ~ . . and the issuance of bonds therefor as authorized by and pro- vided in said Chapter e . *” (Emphasis added)

It is the opinion of this office that the project described in your request is clearly within the constitutional and statutory powers of Flamingo Isles Municipal Utility District, to-wit: reclamation, drainage and navigation. Compare,Parker v. San Jacinto County Water Control & Improvement Dist., 154 Tex. 15,.273 S.W.2d 586 (1954).

Land fill along a coastline, or river, or island, has long been recognized as one of the means of reclamation of lands. 56 Ami, Jur.,

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Hon. F. R. Booth, page 3 (~-116)

Waters, Sec. 501, pages 909-10; Annot. 91 A.L.R.2d 858; Lorino v. e- ford Packing Co., 142 Tex. 51, 175 S.W.2d 410 (1943); Cox v. DallasL.I.D., 258 S.W.2d 851 (Tex. Civ. App. 1953, Ref. N.R.E.). It was long ago rec- ognized that the legislature could decide the size of the district and the territory to be included. Paulsen v.,Portland, 149 U.S. 30 (1892); II Farnham, Law of Waters and Water~Riahts, Sec. 174, page 938. In Attorney Cenerel’s Opinion No. O-7018 (1946) we said:

“It is our understanding that the proposed (water control and improvement) district would be organized only for the pur- pose of reclaiming lands which are subject to overflow and providing drainage of the excess waters.”

“Section 3 (of Article 7880, V.C.S.) specifically provides that a water control and improvement district may be organized for the purpose stated.”

In Smith v. Wilson, 13 F.2d 1007 (S.D. Tex., 1926), which involved a navige~district organized pursuant to Article XVI Section 59 of the Texas Constitution, Judge Hutcheson writing for the court holds ate page 1010:

“(W)e think its plain that (the) contention . . . that . . . the district was formed really for a private and.not a public purpose, and that the taxes were voted in violation of Article 3, g 52, and Article 8, 8 3, of the State Constitution, may be dis- posed of sumsarily as,, if not frivolous, certainly plainly with- out ,merit.”

“Every public improvement of this nature inevitably results in benefit to private individuals; in fact, in purely assessment districts as such the union of private benefit with public good’ is an essential to the district, and it goes without saying that the fact that the Freeport Sulphur Company, and other persons owning property in the town of Freeport, will benefit from the improvement, does not in any manner prevent the tax levy from being public in its nature.”

Article VIII, Sec. 3, Texas Constitution provides that, “Taxes shall be levied and collected by general laws for public purposes only.” As stated above, Article 8280-327 is a “general law.” L.C.R.A. v. McCXew, 125 Tex. 268, 83 S.W.2d 629 (1935). DpVis v. City of Lubbock, 160x 38, 326 S.W.2d 699 (1959), at page 709. held that the Constitutional provision requiring taxes to be levied and collected for “public purposes”

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. Hon. F. R. Booth, page 4 (~-116)

is no narrower in meaning than the words "public use" es used in Article I, Sec. 17, Texas Constitution. While "public use” is fi- nally a judicial question, the declaration of the Legislature upon the subject is entitled to great weight and respect in arriving at a final decision of~the question. Atwood v. Wiilacy County Navina- tion District, 271 S.W.2d 137 (Tex. Civ. App. 1954, Ref. N.R.E.); Smith v. Wilson, supra; B&r& v. City of Taylor, 37 S.W.2d 291 (Tex. Civ. App. 1931), affirmed in u v. City of Taylor, 123 Tex. 39, 67 S.W.2d 1033 (1934).

In Atwood v. Willacv County Navigation District, supra, the San Antonio Court of Civil Appeals, through Justice Norvell held that the acquisition of land by the district for the purpose of leasing the land as industrial sites in the proximity of a port is reasonably necessary to the successful operation of the port end is for a "public use" within the meaning of the Texas Constitution. In this case, the appellee district was organized in accordance with Article XVI, Sec. 59 of the Texas Constitution as was the Flamingo Isles Municipal Utility District.

By Sections 7 end 9, of Art. 8280-327, V.C.S., the Legislature has found and declared the "benefits" of the navigation and reclama- tion of the ,seeshore lends, or island@. No hearing as to benefits is necessary (as is the case in a district created by general law) where the Legislature so enacts the above type of language.. Southern Paine Lumber Compen v. Newton County W.S.D,, 325 S.W.2d 724, (Tex. Civ. App. 1959, Refused N.R.E.); State ex rel. Merriman v. m, 116 Tex: 527. 296 S.W. 1085 (1927); Baunham v0 Willacv County W.C.I.D. No. 1, 112 S.W.2d 318, (Tex. Civ. App. 1938, Error Refused); City of Houston v. Fore. 412 S.W.2d 35. (Tex.,Sup., 1967).

Navigation principally by pleasure boats, as distinguished from commercial craft does not alter the fact that such is "navigation." 12 Am. Jur.2d. Boats end Boating, Sec. 2. page 390; Mentor Harbor Yachting Jpl&v. Mg4ntor'La,goons. Inc., 170 Ohio 193. 163 N.E.2d 373 (1959); !Nekoosa Edwards Pal,er Co. v. Railroad Commission, 201 Wis. 40. 228 1H.W. 1ri4 (1929); State ex rel Elamsann v. Levltan, 200 Wis. 27i. 228 N.W. 140 (1929); State v. Rorrer. 127 Minn. 6(1, 148 N.W. 617, L.R,A. 1916c, 139 (1914Jil amorev _~ _ v..Metcelf _ 52 Minn. 181, 53 N.W. 1139 (1893); Grand Rapids v. Powers, 89Mich: 94. 50 N.W. 661 (1891). 14 L.R.A. 498, 20 Am. St. Rep. 276; New England Trout and Salmon Club v. Mether, 68 Vt. 338, 35 Atl. 323, 33 L.R.A. 569, (1896). The riaht of navigation in tidal waters includes the right of anchor- age which may be exercised for business purposes or for-pleasure.

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Hon. F. R. Booth, page 5 (~-116)

Anderson v. Reames, 204 Ark. 216, 161 S.W.2d 957 (1942). Public right of navigation entitles the public generally to reasonable use of navi- gable waters for legitimate purposes of transportation and for boating or sailing for pleasure in any kind of water craft consistent with enjoyment of right by others. Silver Springs Paradise Co. v. m, 50 F.2d 356 (5th Cir., 1931). The fact that the canals of Flamingo Isles Municipal Utility District will be used for recreational purposes es well as drainage is irrelevant. See Attorney General’s Opinion No. C-436 (1965).

The Flamingo Isles Municipal Utility District as created by Art. 8280-327, V.C,S., and its reference statutes applicable thereto, is legally created and can lawfully issue bonds, or otherwise act in con- sonance with its organic laws to carry out the navigation and reclama- tion plan outlined in your opinion request. This opinion does not obviate the need for the Texas Water Rights Commission under Art. 7880-139, v.c.s., to perform all of its statutory duties as to the proposed plans of the Flamingo Isles Municipal Utility District to issue bonds. Full administrative discretion on behalf of the State is given your Commission under statutory guide-lines to approve, or disapprove, the project when presented. Likewise, this opinion is not to be construed as approval, or partial approval, by the Attorney General of Texas of eny’bonds of said district. Attorney General’s Opinion No. O-7018, (1946). Pursuant to Article 7880-34, V.C.S., such bonds may be considered only at the time same have been properly presented to this office. Therefore,,the questions you have submitted cannot be answered more completely et the present time.

SUMMARY

Flamingo Isles Municipal Utility District, created by Art. 8280-327, V.C.S., can lawfully engage in navigation and reclamation projects along the Texas Coast, or islands thereof, but the feasibility of such projects must be approved by the Texas Water Rights Coensisrion pursuant to Article 7880-139, .

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Hon. F. R. Booth, page 6 (~-116)

V.C.S., and subsequent approval by the Attorney General pursuant to Article 7880-34, V.C.S., must be obtained if such projects are to be financed through the issuance of bonds.

Prepared by Roger Tyler Assistant Attorney General

APPROVED: OPINION COMMITTEE

Hawthorne Phillips; Chairman Kerns Taylor;-Co-Chaiman John Fainter ,Paul Martin Dyer Moore Jack Sparks

STAFF LECALASSISTANT A. 3. Carubbi. Jr.

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