Untitled Texas Attorney General Opinion
KP-0008
| Tex. Att'y Gen. | Jul 2, 2015Background
- The Edwards Aquifer Authority (EAA), a Texas regional management district, obtained an incidental take permit from the U.S. Fish & Wildlife Service (USFWS) under the Endangered Species Act by submitting a habitat conservation plan that requires certain mitigation measures.
- The Plan requires EAA to "support and coordinate" with USFWS to operate off-site refugia (facilities to house covered species during drought, disease, or poor water quality) at USFWS-owned federal sites.
- USFWS proposed a management contract under which USFWS would acquire/construct and own facilities and equipment on federal land and operate the refugia; EAA would provide funding to USFWS for implementation.
- EAA asked whether providing funds to USFWS would violate the Texas Constitution's prohibition on gratuitous grants of public funds (Art. III, §52(a)), whether EAA has statutory authority to enter the proposed (non-joint) contract, and whether Water Code chapter 49, subchapter I procurement rules apply.
- The Attorney General analyzed (1) whether a federal agency counts as an "individual, association or corporation" under Art. III, §52(a); (2) whether the EAA Act authorizes the contract; and (3) whether subchapter I governs the procurement and advance payments.
Issues
| Issue | Plaintiff's Argument (EAA / requester) | Defendant's Argument (opposing view) | Held |
|---|---|---|---|
| Whether Art. III, §52(a) prohibits EAA from funding USFWS | EAA sought confirmation that funding USFWS to implement refugia would be permitted | Concern that §52(a) forbids political subdivisions from granting funds to "individuals, associations, or corporations" and might bar payment | Likely no barrier: under Texas precedent a state agency is not an "individual, association or corporation," and a court would likely treat a federal agency similarly, so §52(a) would not prohibit funding USFWS |
| Whether EAA has statutory authority to contract with USFWS on the proposed terms | EAA relies on broad EAA Act authority to "enter into contracts" and powers to manage, conserve, protect the aquifer | Argument that Water Code provisions authorizing joint projects restrict contracting to joint-ownership/operation contexts | Likely authorized: EAA Act grants broad contracting powers; chapters cited (49.213/49.227) authorize joint projects but do not limit EAA's general contracting authority |
| Whether chapter 49, subchapter I (construction contract procurement rules) applies | EAA contends the management contract is for USFWS services (operation) and USFWS will control design/construction, so subchapter I should not apply; alternatively, exceptions (sole source/professional services) would fit | Concern that the contract requires construction/equipment and might trigger progress payment rules (e.g., §49.276) | Likely inapplicable: a court would probably conclude subchapter I does not apply to the EAA–USFWS refugia contract, particularly given sole-source and professional-services exceptions |
| Whether EAA may make advance payments to USFWS for construction/equipment without violating §52(a) | EAA asked if advance funding would contravene §52(a) | Potential §52(a) prohibition on gratuitous grants could bar advance payments to non-exempt entities | Not separately decided: because federal agency likely not covered by §52(a), the Attorney General did not further address advance-payment constitutional issues |
Key Cases Cited
- Tex. Mun. League Intergov'l Risk Pool v. Tex. Workers' Comp. Comm'n, 74 S.W.3d 377 (Tex. 2002) (state agency not an "individual, association or corporation" under art. III, §52)
- San Antonio Indep. Sch. Dist. v. Bd. of Trs. of San Antonio Elec. & Gas Sys., 204 S.W.2d 22 (Tex. Civ. App.-El Paso 1947) (art. III, §52 prohibits city donating funds to independent school district)
- Harris Cnty. Flood Control Dist. v. Mann, 140 S.W.2d 1098 (Tex. 1940) (statutes authorizing district cooperation with federal government do not violate art. III, §52)
- GDF Realty Invs., Ltd. v. Norton, 326 F.3d 622 (5th Cir. 2003) (upholding federal authority under Commerce Clause to apply ESA take provisions to intrastate species)