Can a Texas county pay the operating costs of a local water district?

TX AG Opinion GA-0601: Can a county fund a local water district's operating costs?

Plain-English summary

The Fox Crossing Water District is a special-law conservation and reclamation district created by a 1985 act of the Legislature, covering territory in Lampasas, San Saba, and Mills counties, though only Mills County voters confirmed it. The district has never held an election to levy taxes, and it does not issue bonds or collect fees. Instead, it requests and receives all of its operation and maintenance funding from Mills County, apparently treating the county as the district's "other revenue." The Mills County Attorney asked three questions, the heart of which was whether the county may fund the district from county general revenue.

The Attorney General answered in two parts. As to the district, its enabling act lets it apply for, accept, and administer gifts, grants, loans, and other funds from any source, and lets it pay expenses out of taxes, fees, or other revenues. Reading those broad provisions, the opinion concluded no statute prohibits the district from funding all of its operation and maintenance expenses with revenue from other sources, including the county, assuming the source can legally provide the funds. As to the county, the answer was different. A county commissioners court has only the powers expressly granted by the Constitution or the Legislature, plus those necessarily implied to carry out express powers. The opinion found no constitutional provision or statute that authorizes Mills County to pay the district's operation and maintenance expenses, and it declined to imply such authority: the enabling act already gives the district its own power to tax, set fees, borrow, and issue bonds to pay those expenses, and when the Legislature wants a political subdivision to contribute to a water district it generally says so expressly and ties the amount to the benefit received. Because the county lacked express or implied authority to fund the district, the opinion did not reach whether such payments would violate the article III, section 52 ban on lending county credit or the article V, section 18 limit on county business.

Currency note

This opinion was issued in 2008. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The Fox Crossing Water District's 1985 enabling act, the Water Code provisions, and the county-authority statutes cited here may have been amended since 2008. Confirm the current law and the district's status before relying on this analysis.

Who this opinion affected (as of 2008)

Counties asked to bankroll a special district: The opinion told them a county cannot fund a water district's operation and maintenance expenses without express or implied statutory authority, and it found none for Mills County here.

Special-law water districts: The opinion confirmed the district could accept and use money from outside sources, including a county, to cover its expenses, but reflected the Legislature's expectation that the district pay its own way through its taxes, fees, and bonds.

County commissioners courts generally: The opinion reinforced that a commissioners court exercises only powers granted by the Constitution or Legislature plus those necessarily implied, and that funding another political subdivision's operations is not implied simply because the district relies on it.

Common questions

Can the water district legally take county money?
The opinion concluded no statute prohibits the district from funding its operation and maintenance expenses from other sources, including the county, if the source can legally provide the funds. The district's own act lets it accept funds from any source.

So why can't the county just pay?
Because a county has only the authority the Constitution or Legislature grants it, and the opinion found no provision authorizing Mills County to pay the district's expenses. The district already has its own taxing, fee, and bonding powers to cover those costs.

Did the AG decide the constitutional questions?
No. Because the county lacked authority to fund the district in the first place, the opinion did not reach whether the payments would violate the article III, section 52 prohibition on lending county credit or the article V, section 18 limit on county business.

Background and statutory framework

Article XVI, section 59 of the Constitution authorizes conservation and reclamation districts that can levy and collect taxes (Tex. Const. art. XVI, § 59(b)-(c)). The Legislature created the Fox Crossing Water District by House Bill 2487 in 1985 (Act of May 26, 1985, 69th Leg., R.S., ch. 779, 1985 Tex. Gen. Laws 2656), authorizing it to collect fees, borrow money, issue bonds, and levy taxes if approved by district voters, and to accept gifts, grants, loans, and other funds from any source (id. §§ 30, 59). The district is a political subdivision separate from the county (Harris County Flood Control Dist. v. Mann, 140 S.W.2d 1098, 1101 (Tex. 1940)) and may exercise only powers expressly granted or clearly implied (Tri-City Fresh Water Supply Dist. No. 2 v. Mann, 142 S.W.2d 945, 946 (Tex. 1940)).

A county commissioners court likewise exercises only powers expressly granted or necessarily implied (Tex. Const. art. V, § 18(b); City of San Antonio v. City of Boerne, 111 S.W.3d 22, 28 (Tex. 2003); Canales v. Laughlin, 214 S.W.2d 451, 453 (Tex. 1948); Anderson v. Wood, 152 S.W.2d 1084, 1085 (Tex. 1941); La.-Pac. Corp. v. Newton County, 149 S.W.3d 262, 263 (Tex. App.-Eastland 2004, no pet.)). The opinion found no provision (including Local Government Code section 81.032, which lets a county accept but not make gifts and grants) authorizing the county to fund the district, and noted that when the Legislature wants a subdivision to contribute to a water district it does so expressly and ties the amount to the benefit received (Tex. Water Code Ann. § 51.168). It therefore did not reach the article III, section 52 or article V, section 18 questions.

Citations

Statutes:

• Tex. Const. art. XVI, § 59(b); art. III, § 52(a); art. V, § 18(b)
• Act of May 26, 1985, 69th Leg., R.S., ch. 779, 1985 Tex. Gen. Laws 2656 (House Bill 2487)
• Tex. Water Code Ann. §§ 36.205 (Vernon Supp. 2007); 51.168 (Vernon 2000)
• Tex. Loc. Gov't Code Ann. § 81.032 (Vernon Supp. 2007)
• Tex. Gov't Code Ann. § 311.021(1) (Vernon 2005)

Cases:

• Harris County Flood Control Dist. v. Mann, 140 S.W.2d 1098, 1101 (Tex. 1940)
• Tri-City Fresh Water Supply Dist. No. 2 v. Mann, 142 S.W.2d 945, 946 (Tex. 1940)
• City of San Antonio v. City of Boerne, 111 S.W.3d 22, 28 (Tex. 2003)
• Canales v. Laughlin, 214 S.W.2d 451, 453 (Tex. 1948)
• Anderson v. Wood, 152 S.W.2d 1084, 1085 (Tex. 1941)
• La.-Pac. Corp. v. Newton County, 149 S.W.3d 262, 263 (Tex. App.-Eastland 2004, no pet.)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0601
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2008/ga0601.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts may remain - the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

February 11, 2008

The Honorable Keri Roberts
Mills County Attorney
Post Office Box 160
Goldthwaite, Texas 76844

Opinion No. GA-0601

Re: Whether Mills County may fund the Fox Crossing Water District (RQ-0615-GA)

Dear Ms. Roberts:

You generally ask whether Mills County, Texas (the "County") is authorized to fund the Fox Crossing Water District (the "District"), a water conservation and reclamation district.[1] The County "is located within the boundaries of the District." Request Letter, supra note 1, at 2. The District, as legislatively authorized, "consists of the territory contained within the boundaries of Lampasas, San Saba, and Mills counties." Act of May 26, 1985, 69th Leg., R.S., ch. 779, § 4, 1985 Tex. Gen. Laws 2656, 2656. However, only Mills County voters confirmed the creation of the District. Request Letter, supra note 1, at 2. Thus, we presume the boundaries of the District and the County are co-extensive.

Article XVI, section 59 of the Texas Constitution provides for the creation of conservation and reclamation districts with the authority to levy and collect property taxes necessary for the payment of bonds and maintenance of the district. TEX. CONST. art. XVI, § 59(b)-(c). Pursuant to this authority, the Sixty-ninth Legislature enacted House Bill 2487 (the "Act") creating the District. See Act of May 26, 1985, 69th Leg., R.S., ch. 779, § 1, 1985 Tex. Gen. Laws 2656. The Act authorizes the District to collect fees, borrow money, issue bonds, and levy taxes, for payment of bonds and operation and maintenance expenses, if approved by the residents of the District at an election held for that purpose. See id. §§ 43, 60-62, 73, at 2661, 2663-65.

You inform us that the District requests and receives all of its operation and maintenance funding from the County in apparent reliance on sections 30 and 59 of the Act. See Request Letter, supra note 1, at 1, 2. Section 30 of the Act provides that "[t]o carry out any purposes or powers under this Act, the [D]istrict may apply for, accept, receive, and administer gifts, grants, loans, and other funds from any source." Act of May 26, 1985, 69th Leg., R.S., ch. 779, § 30, 1985 Tex. Gen. Laws 2656, 2659 (emphasis added). Section 59 of the Act provides that payment of the District expenses "may be made from money obtained from the sale of bonds ... or out of taxes, fees, or other revenues" of the District. Id. § 59(b), at 2663 (emphasis added). You explain that because the District does not levy taxes,[2] issue bonds, or collect fees, the "County apparently is being used as [the District's] 'other revenue.'" Request Letter, supra note 1, at 3. Thus, you specifically ask the following three questions:

[1] Is obtaining 100% of [the District's] operating and maintenance expense solely from 'other revenue' in compliance with what the legislature intended? [2] If yes, may the County budget funds from its general revenue to fund the District if the Commissioners Court finds the expenditure to be for a public purpose under article III, section 52 of the Texas Constitution? [3] And if so, would such an expenditure be consistent with article V, section 18 of the Texas Constitution?

Id. (numbers added).

The District, like other water conservation and reclamation districts, is a political subdivision of the state, separate and distinct from the County. See TEX. CONST. art. XVI, § 59(b); Act of May 26, 1985, 69th Leg., R.S., ch. 779, § 3(c), 1985 Tex. Gen. Laws 2656, 2656; see also Harris County Flood Control Dist. v. Mann, 140 S.W.2d 1098, 1101 (Tex. 1940) (holding that the article XVI, section 59 Harris Flood Control District is a separate and distinct political entity from Harris County). The District has the powers granted by the Act and by other general law specified by the Act, Water Code chapters 51 (relating to water control and improvement districts), 52 (relating to underground conservation districts),[3] and 54 (relating to municipal utility districts), to the extent they are consistent with the Act. See Act of May 26, 1985, 69th Leg., R.S., ch. 779, § 29(c), 1985 Tex. Gen. Laws 2656, 2659; see also Tri-City Fresh Water Supply Dist. No. 2 v. Mann, 142 S.W.2d 945, 946 (Tex. 1940) (stating that a special water district may exercise only those powers that are expressly granted or clearly implied from the express powers).

As you note, the District is expressly authorized to collect fees, borrow money, issue bonds, levy taxes, and use the revenues from these sources to pay its authorized operating and maintenance expenses. See Act of May 26, 1985, 69th Leg., R.S., ch. 779, §§ 43, 60-61, 73, 1985 Tex. Gen. Laws 2656, 2661, 2663, 2665; see also, e.g., TEX. WATER CODE ANN. §§ 36.201 (Vernon 2000) (groundwater conservation district's authority to levy taxes), 36.205 (Vernon Supp. 2007) (groundwater conservation district's authority to set fees).[4] But the District is also expressly permitted to use for its authorized operating expenses other revenues and funds received from any source. See Act of May 26, 1985, 69th Leg., R.S., ch. 779, §§ 30, 59(b), 1985 Tex. Gen. Laws 2656, 2659, 2663. The Act does not limit the District to funding its operation and maintenance expenses, or a percentage of such expenses, from any particular source. Nor have we found any other provision that imposes such limits on the District. In light of the fact that the Legislature created the District as a separate political subdivision empowered to impose taxes and fees and collect other revenues generated from the District's operations, it is reasonable to presume that the Legislature intended that the District pay its expenses with these authorized taxes, fees, and similar types of revenues. See id. § 59(b), at 2663 ("Payments may be made from money obtained from the sale of bonds issued by the district or out of taxes, fees, or other revenues of the district.") (emphasis added); City of San Antonio v. City of Boerne, 111 S.W.3d 22, 29 (Tex. 2003) ("When general words ... follow specific and particularized enumeration of powers ... , we treat the general words as limited and apply them only to the same kind or class of powers as those expressly mentioned."). But, in light of the broad wording of sections 30 and 59 and in the absence of any express limitations, we cannot say as a matter of law that the District may not fund all of its maintenance and operation expenses with revenues received from other sources, including funds received from the County, assuming the source can legally provide the funds. See TEX. GOV'T CODE ANN. § 311.021(1), (3) (Vernon 2005) ("In enacting a statute, it is presumed that ... compliance with the constitutions of this state and United States is intended" and "a just and reasonable result is intended").

Whether the County is authorized to pay for all of the District's maintenance and operation expenses is a separate inquiry. Because a county's authority is circumscribed, before determining whether the County's funding of the District's maintenance and operation expenses is consistent with article III, section 52[5] and article V, section 18,[6] we must first determine whether the County is even authorized to pay for these expenses. See Tex. Att'y Gen. Op. No. JC-0444 (2001) (considering whether the Legislature authorized a county to pay for a special water district's confirmation election expenses before addressing constitutional constraints on such county action).

A county commissioners court may exercise only those powers expressly granted by the Texas Constitution or the Legislature together with such implied powers as are necessary to accomplish the powers expressly conferred. TEX. CONST. art. V, § 18(b); City of San Antonio, 111 S.W.3d at 28; Canales v. Laughlin, 214 S.W.2d 451, 453 (Tex. 1948); Anderson v. Wood, 152 S.W.2d 1084, 1085 (Tex. 1941); La.-Pac. Corp. v. Newton County, 149 S.W.3d 262, 263 (Tex. App.-Eastland 2004, no pet.). Thus, to determine whether the County is authorized to fund the District's expenses, we must look for affirmative authority for such action.

No constitutional provision[7] or statute expressly authorizes the County to fund the District's maintenance and operation expenses. For instance, no provision in chapter 81 of the Local Government Code, which sets forth the general duties and powers of a county commissioners court, authorizes such expenditures. While section 81.032 of the Local Government Code authorizes the commissioners court to accept gifts and grants on behalf of the county and for county purposes, no similar provision broadly authorizes the commissioners court to make gifts and grants. See TEX. LOC. GOV'T CODE ANN. § 81.032 (Vernon Supp. 2007). And, again, section 30 of the Act authorizes the District to "apply for, accept, receive, and administer gifts, grants, loans, and other funds available from any source." Act of May 26, 1985, 69th Leg., R.S., ch. 779, § 30, 1985 Tex. Gen. Laws 2656, 2659. Section 30 does not authorize the County to provide funds to the District. See id. Similarly, section 59 of the Act authorizes the District to pay its operation expenses, not the County. See id. § 59, at 2663. And we have not found, and you do not direct us to, another provision that authorizes the County to pay for or provide funds to pay for the District's maintenance and operation expenses.

Additionally, we do not believe that the County is impliedly authorized in these circumstances to fund the District's maintenance and operations expenses for two reasons. First, based on the information provided, such an implication is unnecessary to accomplish an expressly assigned duty or authority of the County. Unlike a county's broad express statutory authority with respect to roads, for instance, we are unaware of similar, general county authority with respect to water and wastewater. See, e.g., TEX. TRANSP. CODE ANN. ch. 251 (Vernon 1999 & Supp. 2007) (county road law). Nor is such authority granted specifically to Mills County. Here, consistent with article XVI, section 59, the Act expressly grants the District the authority to generally acquire or improve facilities and undertake other projects for the collection, conservation, treatment, and transfer of water and wastewater. See Act of May 26, 1985, 69th Leg., R.S., ch. 779, §§ 3 (legislative findings and declaration), 29 (general power of authority), 46 (underground water powers), 1985 Tex. Gen. Laws 2656, 2656, 2659, 2661. And the Act expressly grants the District the necessary power, to borrow money, impose taxes and fees, and obtain other funds, to pay for those projects and the District's operations. See id. §§ 43 (fees and charges), 46 (sell and distribute water), 60 (borrowing money), 61 (issuing bonds), 73 (levy of taxes), at 2661, 2663, 2665; see also TEX. WATER CODE ANN. § 36.205 (Vernon Supp. 2007) (authority to set fees). (Among these expressly granted powers is the power to levy taxes to pay specifically the maintenance and operation expenses of the District. See Act of May 26, 1985, 69th Leg., R.S., ch. 779, § 73(b), 1985 Tex. Gen. Laws 2656, 2665.) Given the express statutory scheme granting the District the necessary power to accomplish its constitutional and statutory objectives, there is no basis for implying County authority to pay the District's expenses. Accord Tex. Att'y Gen. Op. No. JC-0444 (2001) at 3 (concluding that given the express statutory scheme for payment of groundwater conservation district's election expenses, county lacked express or implied statutory authority to pay for district's confirmation election expenses).

Second, we do not believe the County's authority to fund the District's maintenance and operation expenses may be implied because when the Legislature intends that a political subdivision contribute funds to a water district, it generally provides for the contribution expressly. See TEX. WATER CODE ANN. §§ 51.166 (Vernon 2000) (authorizing a district to solicit cooperation, donations and contributions from other agencies and political subdivisions), 51.168 (authorizing contributor political subdivision to contract with district to contribute to the cost of drainage construction, flood-control or water-supply improvements, or land-elevation construction and contribute in proportion to the benefit received from the project by the contributor). And, significantly, the Legislature specifies the particular purpose of the contribution and the amount, which must relate to the benefit obtained by the contributor. See id. § 51.168.

Because we conclude that the County lacks express authority or implied authority in the present circumstances to fund the District's maintenance and operation expenses, we do not reach your remaining questions as to whether such expenditures would violate the article III, section 52 prohibition against lending of credit or the article V, section 18 implied prohibition against a county engaging in non-county business.

SUMMARY

The Fox Crossing Water District (the "District"), a special-law conservation and reclamation district, is authorized to impose taxes and fees and collect other revenues generated by its operations. No statutory provision, however, prohibits the District from funding all its operation and maintenance expenses from other revenues such as grants, gifts, loans or other revenues received from other sources, including Mills County, Texas (the "County"), if the source can legally provide the funds. But no constitutional provision or statute authorizes the County to pay for all of the District's maintenance and operation expenses.

KENT C. SULLIVAN
First Assistant Attorney General

ANDREW WEBER
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Sheela Rai
Assistant Attorney General, Opinion Committee

Footnotes

[1] See Letter from Honorable Keri Roberts, Mills County Attorney, to Honorable Greg Abbott, Attorney General of Texas, at 1, 2 (Aug. 24, 2007) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter].

[2] You state that "[a] confirmation election was held but the voters only approved joining the district. There has never been another election to decide[] whether the District can tax." Request Letter, supra note 1, at 1.

[3] Section 29(c) of the Act provides that the District has the powers and functions under chapter 51 of the Water Code to the extent necessary to carry out the District's authority relating to underground water. See Act of May 26, 1985, 69th Leg., R.S., ch. 779, § 29(c), 1985 Tex. Gen. Laws 2656, 2659. And section 46 of the Act grants the District underground water powers. Id. § 46, at 2661. In 1995, the Legislature repealed Water Code chapter 52, which governed underground water conservation districts and enacted chapters 35 (dealing with groundwater studies) and 36 (governing groundwater conservation districts). See Act of May 29, 1995, 74th Leg., R.S., ch. 933, §§ 2, 6, 1995 Tex. Gen. Laws 4673, 4674-79 (enacting chapter 35); 4679-4701 (enacting chapter 36); 4701 (repealing chapter 52 of the Water Code).

[4] See supra note 3.

[5] Consistent with article III, section 52(a) of the Texas Constitution, a county may transfer funds to another political subdivision only to accomplish a county purpose. See TEX. CONST. art. III, § 52(a) (prohibiting the Legislature from authorizing political subdivisions to lend their credit); Mann, 140 S.W.2d at 1104 (holding that under article III, section 52, no funds of Harris County can be pledged or used to pay bonds of Harris County Flood Control District); Tex. Att'y Gen. Op. No. JC-0036 (1999) at 6 ("a commissioners court may expend county funds to improve a city street if ... such expenditure serves a county purpose").

[6] Consistent with article V, section 18(b), the commissioners court may exercise authority only over matters pertaining to county business. See TEX. CONST. art. V, § 18(b) (stating that a commissioners court "shall exercise such powers and jurisdiction over all county business as is conferred by this Constitution and the laws of the State"); Mann, 140 S.W.2d at 1104 (discussing implied prohibition in article V, section 18 against the Legislature requiring a commissioners court to perform functions other than "county business"); Tex. Att'y Gen. Op. No. JC-0036 (1999) (concluding that county improvement of a city street that is an integral part of or connecting link with a county road constitutes "county business").

[7] If a constitutional provision authorized the County to fund the District's operation and maintenance expenses, then the County's actions could not violate article III, section 52 or article V, section 18 of the Texas Constitution. Cf. Mann, 140 S.W.2d at 1102 (stating that if donation of taxes was authorized by the state constitution, the donation cannot violate constitutional provisions limiting state expenditures).