Case Information
*1 The Attorney General of Texas
December 31, 1982
MARK WHITE
Attorney General
Mr. John W. Millican Opinion No. w-593 Supreme P. 0. BOX 12546 T&x 512,4752501 Austin. Telecmier 9101674-1367 TX. 76711- Court Building 5121475-0266 [2546] P. 0. Box 658 Texas State Soil and Water Acting Executive Director Temple, Texas 76503 Conservation Board Re: Whether a soil and water authority under chapter 201 of the Agriculture Code to serve conservation district has
as a central distribution point for landowners to purchase 1607 Main St.. Suite 1400 fish to stock fish ponds Dallas. TX. 75201.4709 2141742-6944 Dear Mr. Millican: 4624 Alberta Ave., Suite 915/533-3464 El Paso. TX. 799052793 [160]
conservation district is authorized to serve as a central distribution point for landowners to purchase fish and, in addition, whether a You have requested our opinion as to whether a soil and water
district may charge a fee therefor. 1220 Dallas Ave., Suite 202 Hous,~, TX. 77002.6966 Soil and water conservation districts are created by chapter 201 7131650-0666 of the Texas Agriculture Code. With regard to such districts, the
legislature has said, in section 201.001:
606 Broadway, Suite 312 Lubbock, TX. 79401.3479 (c) In order to conserve soil resources and
606,747.5236 control and prevent soil erosion, it is necessary
that land-use practices contributing to soil waste and soil erosion may be discouraged and
4309 N. Tenth, Suite S McAlten, TX. 76501-1665 discontinued, and appropriate soil-conserving 5121662.4547 land-use practices be adopted and carried out.
Among the procedures necessary for widespread adoption are engineering operations such as the
200 Main Plaza, Suite 400 construction of terraces, terrace outlets, check San Antonio, TX. 76205.2797 dams, dikes, ponds, ditches, and the like; the 512/225-4191
utilization of strip-cropping, lister furrowing, contour cultivating, and contour furrowing; land
An Equal Opportunity/ irrigation; seeding and planting of waste, Affirmative Action Employer sloping, abandoned, or eroded lands to water-conserving and erosion-preventing plants, trees, and grasses; forestation and reforestation; rotation of crops, soil stablization with trees, grasses, legumes, and other thick-growing, soil- holding crops, retardation of runoff by increasing absorption of rainfall; and retirement from cultivation of steep, highly erosive areas and areas now badly gullied or otherwise eroded. p. 2204
(d) It is the policy of the legislature to provide for the conservation of soil and soil resources of this state and for the control and prevention of soil erosion, and thereby to preserve natural resources, control floods, prevent impairment of dams and reservoirs, assist in maintaining the navigability of rivers and harbors, preserve wildlife, protect the tax base, protect public lands, and protect and promote the health, safety, and general welfare of the people of this state, and thus to carry out the mandate expressed in Article XVI, section 59a, of the Texas Constitution. It is further declared as a matter of legislative intent and determination of policy that the agencies created, powers conferred, and activities contemplated in this chapter for the conservation of soil and water resources and for the reduction of public damage resulting from failure to conserve those natural resources are supplementary and complementary to the work of various river and other authorities in this state and to other state officers, agencies, and districts engaged in closely related projects, and shall not duplicate or conflict with that work.
You indicate that a number of districts have recently begun programs to encourage landowners to properly manage and stock farm ponds. You state:
The basic approach is for soil and water conserva- tion districts to consolidate pondowners' requests for fish and arrange for a licensed fish producer to deliver needed fish to the pondowners at a central location. In no case are the fish produced or held by the districts. In some cases the soil and water conservation districts may add a handling fee to cover their expenses associated with the program.
Basically, the district acts to "collect orders and serve as a central distribution point for landowners to purchase fish from fish producers licensed by the State of Texas for stocking their individual farm ponds."
Section 201.102 of the Agriculture Code provides:
A conservation district may lXlrl?y out preventive and control tlteasllres within its boundaries, including engineering operations, methods of cultivation, growing of vegetation, changes in the use of land, and measures listed in Section 201.001(c) of this code. The conservation district may carry out the measures on any land that is owned by the state or a state agency with the cooperation of the agency administering and having jurisdiction of the land. If the land is owned by another person, the conservation district m=Y carry out the measures on obtaining the consent of the owner or occupier or the necessary rights or interests in the land.
An administrative or political subdivision of course has only those powers expressly granted to it by statute or necessarily implied therefrom. Stauffer v. City of San Antonio, 344 S.W.2d 158 (Tex. 1961); Attorney General Opinions H-897 (1976); M-1131 (1972). Nevertheless, we believe that, if a district's board of directors determines that the fish stocking program is a necessary "preventive and control measure" under section 201.102, it is authorized to implement the program as you have described it. Constructing a farm pond and stocking it with fish certainly constitutes a "change in the use of land" authorized by that provision.
As to the imposition of a handling fee by a district, it is well established that, unless a fee is provided by law, none may lawfully be charged. Attorney General Opinions H-796 (1976): H-669 (1975): n-443 (i974); V-1426. (1952). See Nueces County v."Currington. 162 S.W.2d 687 (Tex. 1942); McCallarCity of Rockdale, 246 S.W. 654, 655 (Tex. 1922). We conclude that under the facts presented a soil and water conservation district may not impose a handling fee for serving as a central distribution point for the purchase of fish to stock farm ponds. cf. Agric. Code §201.105.
SUMMARY If the board of directors of a soil and water conservation district determines that a fish stocking program is a necessary "preventive and control measure" under section 201.102 of the Agriculture Code, it may implement such a program as described. A district is not authorized to impose a handling fee therefor.
MARK WHITE Attorney General of Texas JOHN W. FAINTER, JR.
First Assistant Attorney General
Mr. John W. Millican - Page 4 (?.lW-593)
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Rick Gilpin
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Steve Martin
Jim Moellinger
Bruce Youngblood