Can a Texas navigation district develop, run, and pay for a public park like Rockport Beach Park with district tax revenue?

Plain-English summary

Troy Fraser, then chair of the Texas Senate Natural Resources Committee, asked to receive an opinion first requested by Senator Glenn Hegar about the Aransas County Navigation District. The question was whether the District could develop, maintain, and finance Rockport Beach Park, which sits on land the District built up from dredged material and which the City of Rockport had managed for about 25 years.

The opinion started with the source of a navigation district's powers. The District is a conservation and reclamation district under article XVI, section 59 of the Texas Constitution, governed by chapter 62 of the Water Code, and it has only the powers the Legislature expressly gave it or that are clearly implied by its express powers. Section 62.101 sets out the District's purposes, all tied to navigation and the conservation and control of inland and coastal water. Reading those provisions, the opinion concluded that the District may have and maintain parks and recreation facilities, but only to the extent doing so is necessary or incidental to navigation, in aid of conservation, or the other listed purposes. As the opinion put it, the issue is the degree of relationship between the recreational facility and the district's constitutional purpose. Whether a specific park actually serves a District purpose, it said, turns on the particular facts and is beyond what the opinion process can resolve.

On financing, the request focused on one constitutional provision, article XVI, section 59(c-1), which lets districts in certain counties develop and finance parks with taxes and bonds but does not mention Aransas County. The opinion explained that subsection (c-1) does not grant the District new authority, but by its own terms it also does not limit the authority a district would otherwise have over parks and recreational facilities. Beyond that point, the opinion expressly declined to go. It would not speculate about the many issues a particular financing transaction might raise, and it expressed no opinion on any other limitation that might exist, on the District's financing authority in general, or on the legality of any particular financing arrangement.

Currency note

This opinion was issued in 2012. Subsequent statutory amendments, court decisions, or later Attorney General 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.

What the opinion meant for those who asked

The senators who asked (as the opinion described it): The opinion answered that a navigation district may hold and maintain parks linked to its navigation and conservation purposes, but left the case-specific questions, whether Rockport Beach Park qualifies and how it may be financed, unresolved.

The Aransas County Navigation District (as the opinion held for it): The opinion treated the District as having parks authority only to the extent a park is necessary or incidental to its statutory purposes, and said whether that test is met for a given park is a factual determination for the District in the first instance.

On the financing question (where the opinion declined): The opinion held only that article XVI, section 59(c-1) does not cut back a district's otherwise-existing parks authority. It expressly expressed no opinion on other limitations or on the legality of any particular financing arrangement, so this page does not supply an answer the opinion withheld.

Common questions

Can a Texas navigation district own and run a public park?
According to the opinion, yes, but only to the extent the park is necessary or incidental to navigation of inland or coastal waters, in aid of conservation, or the other purposes in Water Code section 62.101.

Did the opinion decide that Rockport Beach Park specifically was allowed?
No. The opinion said whether a particular park serves a District purpose depends on the facts and is outside the opinion process, a determination for the District to make first.

Does article XVI, section 59(c-1) give Aransas County's district taxing and bonding power for parks?
The opinion explained that subsection (c-1) does not grant the District additional authority, and that it also does not limit the authority the District would otherwise have over parks and recreational facilities.

Did the Attorney General bless any particular way of paying for the park?
No. The opinion expressly declined to opine on the District's financing authority in general or on the legality of any particular financing arrangement.

Background and statutory framework

The Aransas County Navigation District operates under article XVI, section 59 of the Texas Constitution, which authorizes conservation and reclamation districts. Tex. Const. art. XVI, § 59; Tex. Spec. Dist. Code Ann. § 5001.002 (West 2011). Its purposes, all tied to navigation and the conservation and control of inland and coastal water, are set out in section 62.101 of the Water Code, and the District may exercise the functions essential to accomplishing those purposes. Tex. Water Code Ann. § 62.101 (West 2004). A navigation district has only its expressly delegated powers or those clearly implied, so its authority over recreational facilities is a question of the degree of relationship between the facility and the district's constitutional purpose. The opinion drew on Harris Cnty. Water Control & Improvement Dist. No. 110 v. Tex. Water Rights Comm'n, 593 S.W.2d 852, 854 (Tex. Civ. App.-Austin 1980, no writ), which held that an article XVI, section 59 district's authority to build a recreational facility must be exercised only to further a statutory purpose.

On the constitutional financing question, article XVI, section 59(c-1) grants certain districts authority to develop and finance parks with taxes and bond indebtedness but does not mention Aransas County. The opinion read that subsection as neither expanding nor limiting the District's otherwise-existing authority. Tex. Const. art. XVI, § 59(c-1). It declined to address other possible limitations, citing the rule that investigating and resolving facts is outside the opinion process.

Citations

Cases:

• Harris Cnty. Water Control & Improvement Dist. No. 110 v. Tex. Water Rights Comm'n, 593 S.W.2d 852, 854 (Tex. Civ. App.-Austin 1980, no writ)

Statutes:

• Tex. Const. art. XVI, § 59
• Tex. Spec. Dist. Code Ann. § 5001.002 (West 2011)
• Tex. Water Code Ann. § 62.101 (West 2004)
• Tex. Const. art. XVI, § 59(c-1)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0905
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2012/ga0905.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

January 12, 2012

The Honorable Troy Fraser Opinion No. GA-0905
Chair, Natural Resources Committee
Texas State Senate Re: Authority of the Aransas County Navigation
Post Office Box 12068 District to develop, maintain, and finance Rockport
Austin, Texas 78711-2068 Beach Park (RQ-0986-GA)

Dear Senator Fraser:

You have asked to receive the opinion originally requested by Senator Hegar, asking whether the Aransas County Navigation District (the "District") is authorized to develop, maintain, and finance Rockport Beach Park with District tax revenue. The park is located on land that the District created from dredged material.[1] Request Letter at 1. The request letter states that the District has "leased" the land to the City of Rockport, which has maintained the park for about 25 years.[2] The letter first asks whether the District is "authorized to have and maintain parks and recreation facilities." Id.

The District is a navigation district operating under article XVI, section 59 of the Texas Constitution, which authorizes the creation of conservation and reclamation districts. See TEX. CONST. art. XVI, § 59; TEX. SPEC. DIST. CODE ANN. § 5001.002 (West 2011). The District is governed by chapter 62 of the Water Code. Id. § 5001.004. The purpose of the District is to provide for:

(1) the improvement, preservation, and conservation of inland and coastal water for navigation;

(2) the control and distribution of storm water and floodwater of rivers and streams in aid of navigation; and

(3) any other purposes necessary or incidental to the navigation of inland and coastal water or in aid of these purposes, as stated in Article XVI, Section 59, of the Texas Constitution.

TEX. WATER CODE ANN. § 62.101 (West 2004). The District is authorized to "exercise the rights, privileges, and functions which are essential to the accomplishment of those purposes." Id. § 62.102. A navigation district has only those powers expressly delegated to it by statute or by the clear implication of its express powers. See Tex. Att'y Gen. Op. No. JC-0354 (2001) at 1. Consequently, the District is authorized to have and maintain parks and recreation facilities to the extent necessary or incidental to navigation of inland and coastal water, in aid of the conservation of such water, and the other purposes set forth in section 62.101 of the Water Code. As this office noted in a similar context, the question of a conservation and reclamation district's authority concerning recreation facilities is one "of the degree of relationship between the recreational facilities and the constitutional purpose of the district." Tex. Att'y Gen. Op. No. MW-313 (1981) at 3 (concerning authority of river authority created under article XVI, section 59 of the Texas Constitution to construct park and recreational facilities). Accord Harris Cnty. Water Control & Improvement Dist. No. 110 v. Tex. Water Rights Comm'n, 593 S.W.2d 852, 854 (Tex. Civ. App.-Austin 1980, no writ) (holding that an article XVI, section 59 municipal utility district's authority to construct a recreational facility must be exercised only to further a statutory purpose of the district). Whether the district's ownership and maintenance of a park or recreation facility will serve a District purpose would require the investigation and resolution of the particular facts concerning the park or recreation facility, which is beyond the opinion process. See Tex. Att'y Gen. Op. Nos. GA-0637 (2008) at 5 (stating that the investigation and resolution of facts are outside the scope of the opinion process), DM-420 (1996) at 6 (concluding that whether a flood control district is authorized to make certain recreational and environmental improvements requires the governing body, in the first instance, to make the necessary factual determinations).

The request letter also states that the City has incurred bond indebtedness to make improvements at the park, and the letter asks broadly whether the District is authorized to assume the indebtedness or otherwise pay for it. Request Letter at 2. The request letter does not provide any details about the indebtedness or the transaction envisioned and expresses only one specific concern—the effect of article XVI, section 59, subsection (c-1) of the Texas Constitution. Id. Subsection (c-1) grants districts located in certain counties the authority to develop and finance parks and recreational facilities with taxes and bond indebtedness, but as the request letter notes, it does not mention Aransas County. However, while subsection (c-1) does not grant additional authority to the District, by its terms it does not limit the authority a district would otherwise have with respect to parks and recreational facilities. TEX. CONST. art. XVI, § 59(c-1) (stating that "[t]his subsection expands the authority of the Legislature with respect to certain conservation and reclamation districts and is not a limitation on the authority of the Legislature with respect to conservation and reclamation districts and parks and recreational facilities pursuant to this section as that authority existed before September 13, 2003").

The request letter does not raise any other specific issue regarding its bond indebtedness question, and we will not speculate about the myriad issues that, depending on the particular facts, might arise from such a transaction. We express no opinion on any limitation that may exist apart from article XVI, section 59(c-1). Nor do we express any opinion about the District's financing authority in general or the legality of any financing arrangement in particular.

SUMMARY

The Aransas County Navigation District is authorized to have and maintain parks and recreation facilities to the extent necessary or incidental to navigation of inland or coastal waters, or in aid of the conservation and other purposes set forth in section 62.101 of the Water Code.

By its terms, Texas Constitution article XVI, section 59, subsection (c-1) does not limit the authority a conservation and reclamation district would otherwise have with respect to the development and financing of parks and recreational facilities. We express no opinion on other limitations that may exist on the District's authority or on the legality of any particular financing arrangement.

Very truly yours,

DANIEL T. HODGE
First Assistant Attorney General

DAVID J. SCHENCK
Deputy Attorney General for Legal Counsel

JASON BOATRIGHT
Chair, Opinion Committee

William A. Hill
Assistant Attorney General, Opinion Committee

[1] See Letter from Honorable Troy Fraser, Chair, Committee on Natural Resources, Texas State Senate, to Honorable Greg Abbott, Attorney General of Texas at 1 (Nov. 18, 2011); Letter from Honorable Glenn Hegar, Texas State Senate, to Honorable Greg Abbott, Attorney General of Texas at 1 (July 21, 2011), https://www.oag.state.tx.us/opin/index_rq.shtml ("Request Letter").

[2] The District describes its agreement with the City of Rockport as being "an agreement for management and operation of the beach park area," rather than a lease. Brief of Aransas County Navigation District at 6 (Sept. 16, 2011) (on file with the Opinion Committee).