Case Information
*1 R-636 THEA~~~~~EYGENEHAL olw TEXAS AUSTIN, TEXAS PIUCE DANlEl. FAOAN DlCEE3ON *-- CaFxuEmAL nppT-A?8x
August 26, 1947 Bon. Beauford H. Jester Opinion No. v-361
Governor of Texas
Austin, Texas Re: Rio Grande Com-
pact - Authority of Compact Com- mission to amend.
Dear Governor:
We have your letter of June 25, 1947, In which you request our opinion on certain proposed changes in the Rio Grande Compact. The problems wNch arise in this connection are set out in an ao- companying letter addressed to you by Hon. J. E. Quaid, Texas Commissioner on the Rio Grande Compact Commission, from which we quote as follows:
"I respectfully take the liberty to direct your attention to Title 128 for
the Revised Civil Statutes of Texas and Article 7466-1, relating to the terms of the Rio Grande Compact Commission. This is found in the Pocket Parts of the Sta- tute. Article XIII thereof .provides that at the expiration of every five years, the Commission may review any provision tbere- of, which is not substantive in character, and which does not affect the basic prin- clples upon which the Compact is founded.
"Last year the Hew Uexico Colmnissioner made a request for a review with reference to the deliveries by New Mexico to Texas.
The matter was referred to the Rngineering Advisors of the respective States, towit: Texas, NW Mexico'and Colorado. They have worked out a new schedule with reference to gaging stations and measurements. They have made a report back to the Commission, wNch I heretith enclose. Each state is submitting to its Attorney General, the question of whe- ther or not, the suggested changes in the re- *2 Hon. Beauford H, Jester - Page 2 --V-361
pert are substantive in character, and
could be made wltheut amenangthe Cem- pact threugh the three LegiaZatures and through &he Federti Qeverzsa#~t~ The En- gineering Adviiaers state that the eb-
ligation8 ef the rbblpecttve states for
the deliveries bf water are net ahanged in amy mbrtantiraf$ wumerb
"I aat a&hag that this sattier be submzltted &e the Atterney Qeneml of
Ten8 and an ogdaien be given ou as te t&et&es or'not this change co lit d be aade without ri&aMng the said Artlale XIX1 ef the Gempaat, Zf the Segal. prepositien $av~%vti is s@%mfered favorable te the Re- port, then 1110 nemt 8tep trill be te advise the Water Bimtrj.cte below the EJ.ephant with %ttte Dam, who wetid be affected favorably er unfamwab~y by the change* Bf coursei the first question bs, can this ohsnge be lega3ly made arithetit amending the whe$e.
Compaot?"
We have also been furnished with a repert by the Cemmissien whiah describes its inwertigation and the cencluoiens reaohed reoePnma* the ohames.
It is preposed te elimZnatt twe gaging stations1 name- 'ly, San Acacia and San Marcia& San Narci~ is PM- aehtly used as the kWe0 Index statlen fer the purpose ef cemput%ng New Eexiao*s ebllgatien te deliver #at&r.
It Is preposed that a gagtig station now existing be- lew ELephent Butte Reservsir be substituted as the lower Index station in fiaae of San Narclafl, Because of this substitution, the tabiklation cf relPtds?nship betveen the upper index station (Otowi) and the lewer Index statlen required to determlne the aeasure if New Nexico's obligation to deliver water must be re- drawn, In addition, the measure of New Mexico's ob- ligatlen will, in Wcnre, be cemputed en the basis of twelve menth@s fkw, rather than the present nine month's flow. The months presently excluded are Jay, August and September,, ,By unanimous agreement, the Gextsml.ssd.eners
find that the changes Indiaated will rt-
suit in substantially the same ob!ligatien and result as now exists under present praotiee.
To aocempliah these changes, the Cenn~Lssion has proposed and recommended in its repert that rines *3 Hon. Beatioti Ii. Jester - Page 3--v-361
(I) and (J) of Article II of the present compact be deleted and ,tha-t Article IV be rewritten. Ue deem it necessmy to set out In full Article IV as it present- ly exists and Article IV as proposed by the Commission:
Article IV (of the present Compact):
"The obligation of Bew Mexico to deliver water in the Rio Grande at San Rarclal, during'each calendar year, ex- clusive of the months of July, August, and September, shall be that quantity set forth in the following tabulation of re- lationship, which corresponds to the
quantity at the upper index station:
"Dischaqe of Rio Grande at Otowl Bridge and at San Marcia1 exclusive of July, August and Septeatber
Quantities in thousands of acre-feet Otowi Index San Marcia1 pdex Supply (6) 100
200 65 141 300 400 219 2:: 33Ei 4669 E 900
1000
1100
1200
ZG
%: 1700
1800
1900
2000
2100
2200 2ilY 2252 2300 *4 Eon. Beauford PI. Jester - Page 4 --v-361
"Intermediate quantities shall be computed by proportional parts.
“(5) The Ototi Index Supply is the recorded flow of the Rio Grande at the U.S.G.S. gaging station at Otowi Bridge near San Lldefonso (formerly station near Buckman) during the calendar year, exclusive of the flow during the months of July, August, and September, corrected for the operation of reservoirs construct- ed after 1929 in the drainage basin of the Rio Grande between Lobatos and Otowi Bridge,
“(6) San Marcia1 Index Supply Is the recorded'flow of the Rio Grande at the gag- ing station at San Marcia1 during the cal- endar year exclusive of the flow during the months of July, August, and September.
"The application of this schedule shall,be subject to the provisions herein- after set forth and appropriate adjustments shall be made for (a) any change In location of gaging stations; (b) depletion after 1929 in New Mexico at any time of the year of the natural runoff at Otowi Bridge; (c) deple- tion of the runoff during July, August, and September of tributaries between Otowl Bridge and San Martial, by works constructed after 1937; and (d) any transmountain diversions into the Rio Grande between Lobatos and San Marclal.
"Concurrent records shall be kept of the flow of the Rio Grande at San Martial, near San Acacia, and of the release from Ele- phant Butte Reservoir, to the end that the records of these three (3) stations may be correlated."
Hon. Beauford H. Jester - Page 5--v-361
Article IV (as proposed): "The obligation of Hew Mexico to deliver water In the Rio Or&de into Ele- phant Butte Reservoir during each calendar year shall be measured by that quantity set forth in the following tabulation of relationship which corresponds to the quan- tity at the upper index station;
DISCRARGE OF RIO GRARDE AT OTOWI BBIDGE AND
RLEPRAHT BUTTB EFFECTIVE SUPPLY Quantities in thousands of acre feet Otowi Index Supply (5) Elephant Butte Effective
Index Supply (6) 100 200
1:i 171 300 400 % 500 600 345 406 700 800 ;ii 900 621 1000 1100 1200
5%
1500
1600 1 00
;3 1 oo- 1900
2000 1695
2100 1795 2200 3:: 2500 18% 1995 2095 *6 Hon. Beauford H. Jester - Page 6--v-361
2600 2195 2 00 2295 2 00 2900 zi 22;; 3000 2595 Intermediate quantities shall be computed by proportional parts.
“(5) The Otowl Index Supply Is the recorded flow of the Rio'Crande at the
U.S.G.S. gaging station at Otowl Bridge near San Lldefonso (formerly station near Buckman) during the calendar year, cor- rected for the operation of reservoirs con- structed after 1929 in the drainage basin of the Rio Grande between Lobatos and Oto- wi Bridge.
“(6) Elephant Butte Effective Index Supply is the recorded flow of the Rlo- Grande at thee gaging station below Ele- phant butte Dam during the calendar year plus the net.gain in storage in Elephant Butte Reservoir during the same year or minus the net loss In storage in said re- servoir, as the case may be.
"The application of this schedule shall be subject to the provisions herein- after set forth and appropriate adjustments shall be made for (a) any change in loca- tion of gagi-hg stations; (b) depletion after 1929 in Rew Rexlco of the natural runoff at Otowi Bridge; and (c) any trans-mountain di- versions into the Rio Grande between Lobatos and Elephant Butte Reservoird"
The Compact is shown in full as Article @66e-1, Vernon*8 Citil Statutes. The solution to the question Pre- sented depends upon interpretation and construction of Articles V and XIII of the Compact, whhich we now copy in full1
ARTICLE V -
"If at any t-e it should be the unani- mous finding and detemtion of the Com- *7 Hon. Beauford H. Jester - Page 7--v-361
mission that because of changed physical conditions, or for any other reason, re- liable records are not obtainable, or can- not be obtadned, at any of the stream gaging stations herein referred to, such stations ; may, with the unanimous approval of the Corn+ mission, be abandoned, and with such ap- / proval another station, or other stations, : shall be established and new measurements shall be substituted which, In the unanimous opinion of the Commission, will result in substantially the same results, so far as the rights and obligations to deliver water are concerned, as would have existed if such substitution of stations and measurements had not been so made."
ARTICLE XIII -
"At the expiration of every five-year period after the effective date of this Com- pact, the Commission may, by unanimous con- sent, review any provisions hereof which are not substantive in character and which do not affect the basic principles upon which the Compact is founded, and shalI meet for the consideration of such questions on the re- quest of any member of the Commission; prOVi- ded, however, that the provisions hereof shall remain in full force ana effect until changed and amended WIthin the intent of the Compact by unanimous action of the commissioners, and until any changes In this Compact are rati- fied by the Legislatures of the respective States and consented to by the Congress, in the same msnner as this Compact is required to be ratifiedto become effective."
In our opinion, under Article XIII of the Corn-~ pact, no change in the nature of an amendment affecting the verbiage and physically changing or revri?lting any of the provisions of the Compact can be made without ratifi- cation by the Legislatures of the three states and con- sented to by the Congress, whether the change be substan- tive in character or not. Article XIII clearly covers changes in this regard which are not substantive. A sub- stantive change would necessarily require ratification. This prohibition relates to all provisions of the Compact, *8 Hon. Beauford H. Jester - Page 8--V-361
including Articles II, IV and V, It appears from the CommissIonIs Report that it proposes to amend the Com- pact by substituting mew provisions to take the place of provisions as now wrzttten. The first two paragraphs of Cosmdssioner Quaidls letter to you indicate that the Commission has proceeded in the matter of amendment un- der and in accordance with Article XIII, In our opinion, the Commission may not proceed under Article XIII and ..
delete any provision of the Compact and substitute in lieu thereof a new provision unless it secures ratifica- tion as required by such article.
. This does not mean that the changes which the Commission recommends and the result which It seeks to obtain by its amendment cannot be accomplished without ratification.
Article V specifically anticipates and covers the procedural changes which the Commission seeks, It permits accomplishment by the actual doing of those things the Conmdssion seems to feel can be done only by amend- ment and actual change in the verbiage of the Compact, The Commission expresses concern over whether or not the chan- ges are substantive. So long as the change is permitted by Article V, it is Wnaterlal whether the change is sub- stantive or not, since the substantive criteria is not a part of Article V but relates only to Article XIII. In our opinion, and so long as the Commission complies with the requirements of Article V, It can effect the result which it seeks by unsnlmous consent and the affirmative doing of the thing desired and to reach this result, we see no need to amend the Compact.
The distinction we have made between Articles V and XIII may seem contradictory, If there is contradiction, then we are unable to reconcile these two articles which, otherwise, would be in hopeless conflict as concerns the matter of ratification. It is stated in Ar';icle XIII that the Ite . e provisions hereof shall remain In full force and effect. o . until any changes in this Compact are ratified. O *' If it is intended that "changes" shall refer to the physical aspects of the provisions of the Compact, rather thanto the purposes which these same provisions intend, and this, in our opinion, is what is meant, then there is still room within which Article V can effectively operate, since Article V ob- viously relates to change in method, approach, or procedure within certain applicable provisions, namely, Articles II, III *9 t .
Hon. Beauford H. Jester - Page g-V-361
and IV. If, on the other hand, changes as used in Article XIII mean every change of result or proce- dure within any of the Compact provisions, then it takes away what has already been clearly authorized by Article V,
Assume for the purpose of this opinion that there is hopeless conflict between these Articles. In that event, under well established rules of ~statu- tory construction, which we believe are applicable to the Compact involved here, it is our opinion that Arti- cle V being specific and relating clear1 to the matters which it covers (Articles II, III and IV 7 would over- rule and prevail over the more general purposes of Article XIII. See 39 Tex. Jur. 212, 59 C. J. 1000, 50 z.RJy 2”. We consider the following language from
. . ., pages 1010 and 1011, applicable here:
1, Where there is, in the same stat&.td,'a general prohibition of a thing and a special permissive recognition of the existence of the same thing under re- gulation, the particular specified,intent on the part of the legislature overrules the general intent incompatible with the specific one. Additional words of quallfi- cation needed .to harmonize a general and a prior special provision in the same statute should be added to the general provision, rather than to the special one.
‘1 . . . It has been said that, in case of conflict between the provisions of the same statute, those susceptible of but one meaning will control those susceptible of two, if the act can thereby be rendered harmonious. When one section of a statute treats specially and solely of a matter, that section prevails in reference to that matter over other sections in which only incidental reference Is made thereto: not '.
because one section has more force as a legis- lative enactment than another, but because the legislative mind, having been in the one sec- tion directed to the particular matter, must be presumed to have there expressed its in- tention thereon rather than In other sections *10 Hon. Beauford H,, Jester - Page 10--v&361
where Us attention was turned to other things. . . ."
In our opinion, all of the proposed changes are within the permissive provisions of Article V. How- ever, It has been with some difficulty that we have reached this conclusion regarding inclusion of th,e July, August and September flow in computing New Eiexlcots obli- gation to deliver water: The Commission may substitute new measurements "which, in the unanimous opinion of the Com- mission, will result in substantially the same results. . .' and since the Comm?ssloners have all agreed that inclusion of July, August and September flow in arriving at the new measurements will produce substantially the same result as now obtains, we accordingly have concluded that such change Is permissive under Art%cle V.
In conclusion,.you are advised that, under either of the theories advanced above, and 80 long as the COm- mission keeps within Article V, it may accomplish the re- sult which It seeks. The Coarmission may not change the physical aspects of the Compact as it seeks to do by amend- ment without ratification.
The Rio Grande Compact Commission is authorized by Article V of the Compact (Art- icle 7466e-1, V. C. S. ), with the unanimous approval of the Commission, to discontinue certain gaging stationsand substitute a new station, or stations, new periods of flow, .' and new tabulations for the purpose of measur- ing Blew Mexicots obligation to deliver water into the Rio ffrande. The results achieved through the change must be, in the unanimous opinion of the Commission, substantially the same as those.which obtain under the Compact.
Article XIII of the Compact has no applica- *11 Hon. Beauford H. Jester - Page U--V-361
tion so long as the change is contem-
plated by Article V.
Yours verytruly ATTOFfEEXGEKEFiAL OF TEXAS -kXSZ-M& m H. D. Pruett, Jc. Assistant EDP:bt
APPROVED ASSISTAFT ATTORNEY GElQERAL