Can a Texas seawall commission use its tax funds to build a public beach?

Texas AG Opinion JM-1122: Can a Seawall Commission Spend Funds to Build a Public Beach?

Plain-English summary

The Matagorda County-Palacios Seawall Commission is a local body created by Matagorda County and the City of Palacios under state law to build and maintain flood-control works along the Gulf coast. It can levy a property tax and disburse funds set aside by the county and city, but that money may be used only to finance the commission's own statutory functions. A state representative asked the Attorney General whether the commission could legally spend its funds to construct or create a public beach.

The Attorney General concluded that, as a general matter, it could not. The commission's powers come from title 118 of the Revised Civil Statutes (articles 6830 through 6837) and chapter 421 of the Local Government Code, and the evident purpose of those statutes is flood control: establishing and maintaining seawalls, breakwaters, levees, dikes, floodways, and drainways, plus improving and beautifying a boulevard erected in connection with such works. A public beach, by contrast, serves recreation. Because courts strictly construe the statutory and constitutional authority for this kind of spending, the Attorney General reasoned that the commission has no authority to spend its funds to build a public beach.

The opinion left one narrow opening. If, on the particular facts, a given public beach could accurately be characterized as itself a seawall, breakwater, levee, dike, floodway, or drainway, or as a beautification measure for a boulevard erected in connection with such a flood-control project, then the spending could fall within the commission's authority. Absent that kind of showing, the commission lacks authority to spend funds for a beach's creation or construction. The opinion noted the constitutional basis for these taxing provisions (article XI, section 7, which allows a tax "for construction of sea walls, breakwaters, or sanitary purposes") but did not address the constitutionality of the boulevard-beautification provisions, since the request did not raise that issue.

Currency note

This opinion was issued in 1989. 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 seawall-commission statutes analyzed here (title 118 of the Revised Civil Statutes and chapter 421 of the Local Government Code) may have been amended or recodified since 1989. Anyone dealing with a present-day seawall commission's spending authority should consult the current statutes rather than relying on the analysis here.

Who this opinion affected (as of 1989)

The Matagorda County-Palacios Seawall Commission (and similar commissions): The opinion told the commission it could not spend its funds to build a public beach unless the beach could be characterized as flood-control works or a related boulevard-beautification measure. Its funds were tied to its flood-control functions.

Matagorda County and the City of Palacios: The county and city, which created the commission and set aside funds for it, were on notice that those funds could not be redirected to recreational beach construction outside the flood-control purpose.

Coastal residents and beachgoers: For the public interested in a new public beach, the opinion signaled that the seawall commission was not the vehicle to fund it, absent a flood-control characterization.

Common questions

Can a Texas seawall commission pay to build a public beach?
Generally no. The Attorney General concluded the commission has no authority to spend funds to construct a public beach unless the beach could accurately be characterized as flood-control works (a seawall, breakwater, levee, dike, floodway, or drainway) or as beautification for a boulevard connected to such works.

Why not? The commission has tax money.
Because its tax revenue may be used only to finance its statutory functions, and the evident purpose of the governing statutes is flood control, not recreation. Courts strictly construe this kind of spending authority.

Is there any way a beach project could qualify?
Only if, on the specific facts, the beach itself functioned as a seawall, breakwater, levee, dike, floodway, or drainway, or as a beautification measure for a boulevard erected in connection with such a flood-control project.

Background and statutory framework

Section 421.021(a) of the Local Government Code lets the Matagorda County Commissioners Court and a municipality in the county establish a seawall commission to perform the functions described by article 6830, Revised Statutes. Section 421.023 authorizes the commission to impose a tax on real property (subsections (a) and (b)), provides that tax revenue may be used only to finance the commission's functions (subsection (c)), and allows the commission to disburse funds the municipality and county set aside for its functions (subsection (f)). Subsection (g), added in 1989 (Acts 1989, 71st Leg., ch. 329, § 3, at 1296), lets the commission exercise the authority granted to a county or municipality under articles 6830, 6831, 6832, and 6837, Revised Statutes, and under sections 421.001(a) and (b).

Title 118 of the Revised Civil Statutes describes the substance of that authority. Article 6830 empowers coastal counties and cities to establish, construct, maintain, and improve seawalls, breakwaters, levees, dikes, floodways, and drainways, and to improve and beautify a boulevard erected in connection with such works, and to incur indebtedness for those purposes. Article 6831 lets them impose additional uses and burdens on public ways for the location and maintenance of such works. Article 6832 gives them the power of eminent domain to acquire land for those works. Article 6837 cedes to counties and cities acting under title 118 the right to use state-owned land and sea bottom below high tide for the title's purposes.

The Attorney General concluded the evident purpose of title 118 and chapter 421 is flood control (see Attorney General Opinion M-50 (1967) (seawalls "are constructed as an aid in keeping inland lands from becoming inundated by sea water")), while a public beach's purpose would be recreation. Because courts strictly construe such spending authority (see, e.g., Harris County Water Control & Improvement Dist. No. 110 v. Texas Water Rights Comm'n, 593 S.W.2d 852 (Tex. Civ. App. - Austin 1980, no writ) (construction of certain recreation facilities by a municipal utility district not authorized by Water Code § 54.012 and article XVI, section 59, of the Texas Constitution); cf. Attorney General Opinion MW-313 (1981) (river authority authorized to construct certain recreation facilities on a reservoir)), the opinion concluded the commission has no authority to spend funds to construct a public beach unless the beach could be characterized as flood-control works or a related boulevard-beautification measure. The opinion identified article XI, section 7, of the Texas Constitution (tax "for construction of sea walls, breakwaters, or sanitary purposes") as the constitutional basis for these provisions, but did not address the constitutionality of the boulevard-related provisions, which the request did not raise.

Citations

Statutory and constitutional authorities:

• Local Government Code § 421.021(a) (establishing the seawall commission); § 421.023 (tax, use of revenue, disbursement, and 1989 grant of county/municipal authority); § 421.001(a), (b) (referenced functions)
• V.T.C.S. art. 6830 (title 118) (seawalls and related flood-control works; boulevard improvement); art. 6831 (additional uses of public ways); art. 6832 (eminent domain); art. 6837 (use of state land and sea bottom below high tide)
• Water Code § 54.012 (referenced via case law)
• Texas Constitution art. XVI, § 59 (conservation; referenced via case law); art. XI, § 7 (tax for sea walls, breakwaters, or sanitary purposes)
• Acts 1989, 71st Leg., ch. 329, § 3, at 1296 (adding § 421.023(g))

Cases:

• Harris County Water Control & Improvement Dist. No. 110 v. Texas Water Rights Comm'n, 593 S.W.2d 852 (Tex. Civ. App. - Austin 1980, no writ) (strict construction of authority for recreation facilities)

Attorney General opinions referenced:

• M-50 (1967); MW-313 (1981)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1122
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1989/jm1122.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

December 21, 1989

Honorable D.R. "Tom" Uher
Chairman
Redistricting Committee
Texas House of Representatives
P.O. Box 2910
Austin, Texas 78768-2910

Opinion No. JM-1122

Re: Authority of the Matagorda County-Palacios Seawall Commission to expend funds to create a public beach (RQ-1808)

Dear Mr. Uher:

You ask whether the Matagorda County-Palacios Seawall Commission may legally expend funds "for the purpose of constructing or creating a public beach."

Section 421.021(a) of the Local Government Code provides:

The Commissioners Court of Matagorda County and the governing body of a municipality in the county may by resolution establish a seawall commission to perform the functions described by Article 6830, Revised Statutes.

Section 421.023 of the Local Government Code provides in subsections (a) and (b) for the imposition by the commission of a tax on real property within its jurisdiction. Subsection (c) provides that "tax revenue may be used only to finance functions of the commission." Subsection (f) provides additionally that "the commission may disburse funds set aside by the municipality and the county for the performance of its functions."

Subsection (g) of section 421.023, added in 1989, provides:

The commission may exercise any of the authority granted to a county or municipality under:

(1) Articles 6830, 6831, and 6832, Revised Statutes;

(2) Article 6837, Revised Statutes; and

(3) Sections 421.001(a) and (b).

Acts 1989, 71st Leg., ch. 329, § 3, at 1296.

Article 6830, title 118, V.T.C.S., provides in relevant part:

The county commissioners' court of all counties, and the municipal authorities of all cities, bordering on the coast of the Gulf of Mexico, shall have the power and are authorized from time to time to establish, locate, erect, construct, extend, protect, strengthen, maintain, and keep in repair and otherwise improve any sea wall or breakwater, levees, dikes, floodways and drainways, and to improve, maintain and beautify any boulevard erected in connection with such sea wall or breakwater, levees, dikes, floodways and drainways, and to incur indebtedness therefor . . . .

Article 6831 provides:

Said county commissioners' court, and municipal authorities, shall have the power to impose such additional uses and burdens upon all streets, alleys, public highways and other public grounds as they may deem necessary for the location, erection, construction and maintenance of seawalls, breakwaters, levees, dikes, floodways and drainways, and to license, regulate or grant such additional uses of said seawalls, breakwaters, levees, dikes, floodways or drainways as will not impair their efficiency.

Article 6832 provides in relevant part:

Said counties and cities shall have the power to take and appropriate such land and other property as may be deemed necessary for the establishment, location, construction and maintenance of said seaways, breakwaters, levees, dikes, floodways and drainways, and to define the area of land needed, and to acquire, take, hold and enjoy the same for the purposes aforesaid, and to that end shall have the right to exercise the right of eminent domain and to condemn land for the uses and purposes aforesaid . . . .

Article 6837 cedes to counties and cities acting under title 118 (articles 6830 et seq.) the right to use state owned land and sea bottom below high tide for purposes set out in title 118.

We think that the evident purpose of title 118 and chapter 421 is flood control. See Attorney General Opinion M-50 (1967) (stating that seawalls "are constructed as an aid in keeping inland lands from becoming inundated by sea water"). Also, article 6830 includes authorization "to improve, maintain and beautify any boulevard erected in connection with such sea wall." See also Local Gov't Code § 421.001(b) (authorizing contribution of funds to United States in connection with federal projects relating to "construction or maintenance of a seawall, boulevard, or other project authorized under Title 118"). The purpose of a public beach would be, we assume, to provide recreation.

Case law suggests that a court would strictly construe the applicable statutes and constitutional provisions in determining whether the commission is authorized to expend funds to construct or create a public beach. See, e.g., Harris County Water Control & Improvement Dist. No. 110 v. Texas Water Rights Comm'n, 593 S.W.2d 852 (Tex. Civ. App. - Austin 1980, no writ) (construction of certain recreation facilities by a municipal utility district not authorized by section 54.012 of the Water Code and article XVI, section 59, of the Texas Constitution); cf. Attorney General Opinion MW-313 (1981) (river authority authorized to construct certain recreation facilities on reservoir).

Consequently, we think that the commission has no authority to expend funds to construct a public beach unless a particular public beach could somehow be accurately characterized as a seawall, breakwater, levee, dike, floodway, or drainway, or as a beautification measure for a "boulevard" erected in connection with such flood control projects.[Footnote 1]

SUMMARY

Unless, on the facts of a particular case, a public beach could be accurately characterized as a seawall, breakwater, levee, dike, floodway, or drainway, or as a beautification measure for a boulevard erected in connection with such a flood control project, a seawall commission operating under chapter 421 of the Local Government Code and title 118, V.T.C.S., such as the Matagorda County-Palacios Seawall Commission, lacks authority to expend funds for the beach's creation or construction.

Very truly yours,

JIM MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by William Walker
Assistant Attorney General

Footnote 1: Constitutional authority for the provisions of title 118 and Local Government Code chapter 421 is found in article XI, section 7, of the Texas Constitution, which provides for the imposition of a tax "for construction of sea walls, breakwaters, or sanitary purposes." Please note that, as you do not specifically raise any such issue, we do not here address the constitutionality of the provisions of chapter 421 or title 118 that relate to improving, maintaining, or beautifying boulevards.