t   -.   -
                                                                    R- ‘78




             Honorable Victor C. Marshall
             Executive Direotor
             Texas State Soil Conservation Bward
             2nd Floor, First State Bank Buihding
             Temple,   Texas

                                 opinion   Ho, V-69
                                 Re:   May the San Jaainto So&t EonsBrve-
                                       tion District    ooutract with the
                                       San Jaointo River ConseWation
                                       and Reclamation District     to hold
                                       aaid ReolamM#on Diet&at       $?88
                                       Prom liabillt,y,   resUlti
                                       the negligent u5e of equY pment
                                       and the negligent     aOt8 OP smploy-
                                       ees operati.ng such equipment ,
                                       during the time that suoh equip-
                                       ment and employees are 00 1~60
                                       Prom the San Jacinto River Oon-
                                       servatLon   awl ReolamaOiM    @ij,@
                                       trict but ape under the coat&l
                                       of the San 8acinto W.1 CaMOltPa-
                                       tiwn District?
             Dear Sir:
                          The ~wrtion       pseeentad 133 your laQt#P ai Jan-
             uary 25, 1947, i e Whether the Board oP Bk\pervieOra @P the
             San Jacinto Soil CBrservation District        may* under the
             @State $011 Cancservet ion Law”) Article      165e-4, V.A.C.S. 3
             oontract with the #aanJeointo River Coneervatlol        al~d Rw-
             lamafioa District,     a8 follows:
                            *Second Party agrees to hold harm-
                   less and indemalty Pfrat Party Prom any
                   llabfllties     tax damagea or negligence,
                   or for eny *of 0P the operator 04 employ-
                   ees wed in operating such equlpmetlt or
                   material while same 18 under the direa-
                   tfon of Second Party, and until. it 1s Xa-
                   turned to First Party,,”
                                                                      --.




Hon. Victor       C. Marshall    - page 2    (V-69)


               The quot@a provision    is fouti in Paragraph
5 of the proposed csntraot     between the two districts,
which was attaohed to ymr ).&tteP and i8 zyburaeil here-
with.    For OOnvsnisac.9 the @a5 Jacinto S& Canserva-
$10~1 kllatriot w&l ba Limtter           refrrrd  t9 as “Con-
servation    RMrfOt*   In the Ban Jga65to Ittver CQnss&a-
tion and Reclamation               wj,%l Ire here%nafter raw
ferred to as ~Reo~amntioE ]tlistriOtn,.
             The equfpmedt and materials referWi    to in
the qubted section are not identiiied   by the Ocatract ,
but it is ass-d     that suck equipment and matOria1 con+
sists et bulMOeers,    gra&xs end Qther maohines Of a
type usua$ly oned la rosa wwka Your file fndioates
that &he Conser’ratYp& Hst9d&t ia reae5tly     using a
maintaiaer Pucalahrkd by the *iaX N&ion   BietTt&t for
terracing  and drabage roMci+
               The questiom may be stated          in mere general
terms,    as PollOwws:
                  May one State    agen,cy oontract    with anether
State    agency    to assume    tortious   &iabi&*ty   $%sulting
Prom the negligent    use of’ equipment and the negligent
acts of the em loyees in operating suob equipment dur-
ing the time t ii at such equipment an& bmployees are un-
der the control and direotiO5 of the borrowing agenay,
            The solution of the problem presented re-
quires an understanding of the nature and oP the powers
and duties of the State agencies involved,
              The San, Jaointw BQ$l Conservation Bi&rlot
was oreated under Art%Cle~l65a-4,     V.A.C.S.,   Acts 1939,
 g. 7, a8 amended Acts 1941, pB 491, and !&~&VII    as Ohs
  State Soil Conservation La@‘.     A Soil Connenatien
&strict    formed under this Aot vlsh@&l oonstltuta     a
 governmental division   eP this &ate dna a ‘14ublic body
 oorporats and polktic   8xeroi8iag  pub&j+0 powers”; with
power to calcry out preventive and Oontrol measure8
 through eagi&@sring opera&:bum, metheds 02’ aulbioatf on,
growing Of vegetdtioa,    changrs in use of Land; to enter
into ,agreements with any agepoy, gWernmenta1 or Otber-
wise, in the carrying on of aresion abntrel. and preoen-
tion operations;   to purchase, improve and dispose 0P
real and personal property;     to make available   to land-
owners engineering machinery and equipment, Pertillzer
and seeds; to construct buildings;,    to purchase or oth-,
erwise take over Federal soil erosion prOjeots;       to sue
,   -




        Hoa   Victor   C. Marshall     -   Page 3   (V-69)


        and be sued in the name of the district;           to make and
        execute contracts     or other instruments necessary or con-
        venient to the exercise      of its powers.       The power to
        levy taxes is specifically      withheld.     A district     is re-
        quired to obtain from the Seoretary of State a certifi-
        cate of organization,      and when this is accomplished,
        "the district    shall constitute    a governmental subdiri-
        sion of the State and a.public       body corporate and poll-
        tic.”   Upon dissolution,     the District    is required to
        obtain a certificate      to that effect   from the Seoretary
        of State..    The creation 65 a district,       its projects    and
        its dissolution    Is at the will of the landowners within
        the district    expressed through elections.
                        The San Jacinto River Conservation ana Recla-
         mation District     was created by Acts of 1937. 43th Is
        B                     copied In V.A.C.S.,      Vol, 21: begin&&’
         at page 617, and-the various amendments thereto,             begin-
        ning at page 148, Pocket Part, V.A.C.S.,            Vol. 21, all
         initiate&   under the constitutional        authority granted la
        Article    16, Sec. 59 of the Constitution         of Texas, under
        whloh Constitutional        amendment the districts      "ahall be
        governmental agencies and bodies politic            and corporate
        with such parers of gorernment and the authority to exe-
         cute such rights,      privileges    and functions    concerning
        the subject matter of this amendment as may be oonferred
        by law”; the purposes of such distrlots            are taken from
        the Constitution~an8        are stated in the Act to be, “the
        control,    storing,    preservation    and distribution     of its
        storm and flood waters, the waters of ita rivers and
         streams for irrigation,        pwor and all other useful pur-
        poses, the reclamation and irrigation            of its arid, semi-
        arid, and other lands needing Irrigation,             the reclama-
        tion and drainage of its overflewed lands, and other
        land needing drainage, the conservation            and development
        of its forests,      water and hydra-eleotric       power, the navl-
        gation of its inland and coastal waters, and the preeer-
        ration and conservation         of all such natural resources of
        the State.”      Districts     are granted broad powers in the
        Act and in addition are granted the same powers conferred
        upon Water Control and Inprovement Districts             by Chapter       :~
        25,, Acts 1925 (Article        7880-l to 1470 6, inclusive,
        V.A.C.S.),    and under these grants such districts           may con-
        tract generally      in furtherance     of their purposes; aoquiro
        by purohase, condemnation or other means lands and rights
        of way; au8 and be sued in the ‘name of the district;              lery
        taxes; issue bonds; sell water, water oonneotions,              power,
        electric    lmr g y ,  ana other services     furnished or ~suppliea
Hon. Victor    C. Marshall   - Page 4   (V-69)


by the district;   and although the districts      may not
mortgage or otherwise encumber their property and
have only limited right of sale of such property,
they may contribute   to the construction      of any im-
provement by any similar district      the construction
of which shall contribute    to their benefit;     and, to
a limited extent, the district    is dependent on the
will of the landowners residing     therein,as    expressed
at elections.
               As a general rule, the State and its pol-
itical   subdivisfone    are not liable   in tort while per-
forming acts in the public interest,        unless some stat-
ute specifically      authorizes such liability.    If this
rule applies to the contraotiq        State agencies under
discussion,    the contractual   provision   may serve no
useful purpose.
             The law in Texas on this subject seems to
be that where districts    similar to those involved here
are performing a governmental or public function,    they
will not be liable   in tort, but where the function is
proprietary  and private,   then liability follows.




 (T.c.A.),   163 s. v/. (2) 855 it is difficult     to C&P
ceive of a situation     in whidh either the Reclamation
District   or the Conservation District     would be liable
for the torts of their agents and employees.         In each
of the above cited cases, the District       involved was
created by statute for the,purposes       and under the auth-
ority expressed in Sec. 59, Article       16, of the Consti-
tution.    In the Jones ease, the employee of the drain-
age district    was in$.urea by being thrown from an auto-
mobile while being tranaportod to work by an agent of
the District.     In the Peters case, the employee was in-
jured by the premature explosion      of ‘a charge of dyna-
mite discharged by a fellow employee on a drainage work
being done by the District,      In the Hodge case, the em-
ployee was injured in the course of his employment in
the construction    of the dam across the Colorado River
at Austin.
              From the wording    of the contractual provi-
sion   under consideration,’ it   is believed that the type
,   -




        Hon. Victor    C. Marshall   - Page 5   (V-69)


        of injuries    anticipated   by the contracting distriots
        are similar    to the injuriss   described in the cases re-
        ferred to.
                       In declaring    drainage districts not liable
        in tort,    the iollowihg   language was used in Jones vs.
        Jefferson    County Drainage District    (supra):
                      "Drainage districts    created under
              the provisions    of Chapter 7 of Title 128,
              Art. 8097,~V.C.S.)    enaoted under authority
              of Art: 16, Sec. 5911, sf the State Consti-
              tution, Vernonls Am. St., l.Ipepolitical
              subdivisions    or the state of the same na-
              ture and stand upon exactly the same foot-
              ing as counties,    or preciqots,    or any of
              the other political     subdivisions   of the
              state.    Harris County Drainage District      Wo.
              12 v. City of Houston, Tex. Cola. App., 35
              S. W. (2) 118; Wharton County Drainage Dis-
              tri6t No. 1 T. Higbee, Tax. Cir. App., 149
              8. W. 381; American Surety Co. v. Bidalgo
              Coumty, Tex. Civ. App., 283 8.W. 267, writ
              of error refused; Parker v. Harris County
              Draiuge Distriat,     Tax. Civ. App., 148 g.W.
              351; Harris County v. Cerhart, 115 Tax. 449,
              283 S.W. 139; Wussbaum T. EM11 County, 97
              T6x. 86, 76 S.W. 430; Braun v. Trustees of
              Viotoria~Independent     School District,   Tax.
              Cir. App., 114 S. W. (2) 947; 15 Tex. Jur.
              722.
                     "In the Cerhart Case, supra, our Su-
              pm&e Court held (115 Tex. 449, 283 S.W.
14C):    'It is well establisheq    that at ccm-
              &on law counties as a rule are not liable
              for injurler   resultiag   from the negligenoe
              of their officers     or agmata, and .ae raoonry
              can be had in damages unlerr liability       be
              created by statatr.      JZoigel T. Wieehita Caun-.
              ty, g4 Tex. 392, 19 S.W. 512, 31 AM. St. Rep.
              63; Wuasbaumv. Bell Ceanty, 97 Tox. Q6, 7g
              S.W. 430.'
                    qvSince drainage distrirts    are of the
              same nature ‘and stand upon the *ue rectiy
              a8 counties,   and aiaoe ceumtie8 are net lia-
              ble ror injuries   resulting   rrom the nogli-
              game 0r their offioerr      or lgont8, it logi-
                                                               .   .




Hon. Vi,otor   C. Marshall   - Page 6     (V-69)


      tally follows     that drainage districts,
      likewise,    are not liable   for injuries      re-
      sulting from the negligence      of their      of-
      ficers    or agents.”
             In extending this rule to conse.rvation and
recl%nation districts   and in reviewing the law relating
to this matter, it is stated in,Hodge v. Lower Colorado
River Authority (supra):
               *Appelleewas      created as a conser-
       vation and reclamation        district     under and
       by virtue of Chap, 7, Acts 4th Called Ses-
       s$on of the 49rcl Legislature,          Ptynbn’s Ann,
       Civ. St. following      arti,cle 8197f, and un-
      der authority       o$ Sec. 59(a),      Art. 16 &the
      $ozs$itutlon      of Texas, Vernon’s Ann. St.
                The building of the Austin dam was,
       in keeping with the legislative           act creat-
      ing the Authority,       and so far as appellee
      was concerned ( not purely for thel purpose
      of generating electric         power for the, City
      of Austin,; but was one of ,the authorized
      methods ddopted by appellee to conserve
      and utilize      a natural resource of the State
      for hydroelectric       power for a public use,
      The building of the, dam as a step in the
      conservation      of a natural resource is an
      entirely    diff,erent   matter from a particular
      sale of the po\lier suboeqi:ently to be gener-
      ated by it after its conpletion,.             In the
      former., reF;ardless of the latter,           the dis-
      trict acted in a governmental capacity for
      a public purpo,se, one in which ail the pub-
      lic, and not merely the inhabitants             of the
      City of Austin, were interested.
               * * * * such fiistricts,    created #under
      Sec. 59(a) of Art. 16 of the Constitution,
       ‘are political    subdivisions    of the state of
      the same nature and stand upon exactly the
      same footing as counties,        or precincts,   or
      any of’ the other political       subdivisions   of
      the state ’j and consequently are immune from,
      liability    for tort8 of their a.gents and em-
      ployees.     Since all of such districts+an8
      several different     kinds are so authorized,--
      created under this section of the Constitu-
      tion are all designed to effectuate          the same
Hon. Victor    C. Marshall     - Page 7      (V-69)


       objectives,     that is, the conservation  and
       utilization     of the natural resources  of the
       state in which all the public are interested,
       they must all logically     fall into the same
       category on the question of immunity from lia-.
       bility    for torts."
              And in    construing the effect   or section 59,
Article   16. of the    Constitution,  it is said. bv wav of
dictum, in*Hidalgo      County Water.Control   and'Im~rov&vent
District   No. 1 vs.    Gannaway (T.C.A.),   13 S . 'rl.
                                                     "    1 204 9
writ ref,:
               "Was it intended in those declara-
       tions (Art. 16, Sec. 59) by the framers of
       the constitutional       provision    to lift    such
       corporations,      therein authorized,       from the
       status universally       occupied by purely local
       public organizations,        and give them the
       preferred     status of municipalities         exer-
       cising 'public      right%!' and performing        'pub-
       lic duties,'      with all the exemptions ac-
       corded such municipalities          by the common
       law? If this was not the purpose of those
       declarations,      then none other is conceiv-
       able, and they have no effectual           signifi-
       cance.     It seems to the writer that the
       constitutional      declarations     must have been
       made in view of the inhibition          against ex-
       emption from the common-law liability             and
       of the decisions       of our Supreme Court giv-
       ing effect     to the common-law rule applica-
       ble to municipalities        exercising    functions
       other then those essentially          public in
       character,     and were intended to protect
       the distriots      therein provided for against
       the operation of thA& rule."
             The trend in Texas as evidenced by the fore-
going opinions indicates    that the Districts   here in-
volved will be liable    for few acts of negligence    result-
ing in personal injury.     Therefore,  little  necessity   is
seen for the contractual    provision under consideration.
If, however, a contractual    provision   of the nature sought
is still desired,   no reason is known by this department
why such a provision   may not be included.
              We believe     the law with reference to public
contracts   is correctly     stated in Donnelly on Public Con-
Hon. Victor      C. Marshall   - Page 8   ,(V-69)


tracts,     Section   3, dealing   with implied     powers,   as fol-
lows:
                  “Public bodies authorized to do a
          particular    act have with respect to such
          act the power to make all contracts
          which natural persons might make. They
          have all the powers possessed by natural
          persons, as respects their centraots ex-
          cept where they are expressly,     or by im-
          plication,    restricted.”
                Although we have not been called upon to
express an opinion on the ability      of the districts      to
contract with respect to the oooperative        matters GX-
pressed in the contract,     being calle& on only with re-
spect to such contract as .relates to, paragraph: 5, nev-
ertheless,     we interpret the acts creating these dis-
tricts    as giving them the power to make such c,ontraots.
The power to cantract with reference       to the matters
set out in paragraph 5 of said contract        is incidental
to and may be implied from the parent contract,         the im-
plication    being that in order to avail itself      of velua-
ble machinery and the operation thereof,        for the fur-
therance of its public purposes, the Conservation Dis-
trict may properly, agree to the provision       in question.
The matter is one of trade, customary in dealings be-
tween private individuals     and corporations,    and no re-
striction    is known which would place the districts      here
involved in a different     position.   The inclusion    of the
provision    in the contract will not create liability        to
third parties where none exists under the law.
             ft is the opinion of this department that
the contractual   provision   in question may serve no use-
ful purpose, but that no reason exists prohibiting     the
parties so contracting     if they so desire.
                               SDMMARY
                   A Soil Conservation District    may con-
          tract with a Water Reclamation and Conse~r-
          vation District      to hold harmless such water
          Reclamation and Conservation Distriot       from
          liability    resulting   from the negligent use
          or equipment) and the negligent acts of em-
          ployees in operating such equipment, during
          the time that such equipaent and employees
Hon. Victor    C. Marshall   - I'age 9   (V-69)


       are on loan from the Water Reclamation   and
       Conservation District,   but are uader the
       aontrol and direction   of the Soil Conserva-
       tion Distriot;  however, under existing  law
       with reference to such liability, little
       need is seen for such a provision.
                                   Yours very truly
                              +TlToRNEYGENERAL
                                             OF T?zxAs



                                   H. D. Pruett,   Jr.
HDP:jr:sl:wb                       Assistant


APPROVED
OPINION COMMITTEE
EYBWB
CHAIRMAN
                              ATTORNEY
                                     GENERALOF TEXAS