Untitled Texas Attorney General Opinion ( 1974 )

. .
The Honorable William J. Bernardino Opinion No. H- 280
Montgomery County Attorney
Conroe, Texas 77301 Re: Can a road be considered
a health nuisance so as to give
district health officer authority
to order its abatement?
Dear Mr. Bernardino:
You have requested our opinion on the question of whether “a
road” can “be considered a health nuisance so as to authorize a Health
officer to proceed to abate same under provisions of V. A. C. S. Art.
4477-1, Sec. 3(b). I’
Article 4477-1, V. T. C. S. , establishes “minimum standards of
sanitation and health protection measures. ” In its 5 1 (g) it defines
“nuisance” as:
“Any object, place or condition which constitutes
a possible and probable medium of transmission of
disease to or between human beings or any other object,
place or condition which may be specifically declared
by this Act to be a nuisance. ‘I
In $ 2, it specifically declares certain conditions “to be nuisances
dangerous to the public health, ” among them:
!, . . . .
“(e) Any place, condition or building controlled
or operated by any governmental agency, state or
local, which is not maintained in a sanitary condition;”
p. 1304
. I
The Honorable William J. Bernardino page 2 (H-280)
I,
. . .
‘l(h) Any collection of water in which mosquitos
are breeding within the limits of any city, towns or
village;”
1,:. . . .
Section 3 (b) provides as follows:
“Every local health officer who receives
information and proof of the existence of a nuisance
within his jurisdiction shall issue a written notice
to any person responsible for the said nuisance.
ordering the abatement of same. He shall at the
same time send a copy of the, said notice to the
local city, county, or district attorney. Such
notice shall specify the nature of the nuisance and
shall designate a reasonable time within which such
abatement shall be accomplished. In the event
such notice is not complied with within the specified
time, the local prosecuting attorney who received
the copy of the original notice shall be so advised
by the local health officer, and he shall immediately
institute proceedings for the abatement thereof. ”
We believe that the basic answer to your question is controlled
by the facts and circumstances involved in a given case, and the most
we can say is that there is nothing about “a road” that would prevent
conditions existing thereon from being considered a nuisance under
Article 4477-l if the conditions defined in the statute exist with reference
to or because of the road or its maintenance.
In your letter you enclosed a letter to you from the director of
the Montgomery-Walker County Health District which indicates that the
concern emanates from that agency. We note our belief that under $ 5 4
and 4a of Article 4447a, V. T. C. S., the director of a coordinated health
p. 1305
The Honorable William J. Bernardino page 3 (H-280)
program such as the Montgomery-Walker County Health District may be
considered a “local health office” as defined in $ 3 (b) of Article 4477-1,
with a caveat from the narrow construction of the latter statute in ABC
Rendering Inc. v. State, 342 S. W. 345 (Tex. Civ. App., no writ, 1961)
which holds that a “local health officer” under Article 4477-l must have
taken the oath required ,of county health o,fficers and have filed a copy of
his appointment with the State Board of Health.
The letter from the health unit further indicates that the following
conditions on the road in question are disturbing the agency:
“1) When a road is so poorly built and/or maintained
that it persistently contains significant amounts of
stagnant or unwholesome water liable to produce disease.
“2) When a road is so poorly built and/or maintained
that it interferes with proper drainage causing sub-
surface water to the degree that it interferes with
proper functioning of private sewage systems or
threatens to contaminate private or public water
supplies.
“3) When a private road is the only means of egress
to a densely populated area (e. g. a subdivision) and
it is so poorly built and/or maintained that it would
be impossible a significant amount of time for vehicular
traffic to pass.
“4) When a private or governmental owned road is the
only means of egress of large numbers of people living
in a densely populated area and it is subject to periodic
obstruction (e. g. flooding) not due to an Act of God of
sufficient degree that vehicular traffic cannot pass a
significant amount of the time. ”
p. 1306
The Honorable William J. Bernardino page 4 (H-280)
The first two conditions described above i. e., stagnant or un-
wholesome water and interference with sewage systems or water supplies,
could logically fall under the broad definition of nuisance in § 1 (g) of
Article 4477-l and also under the two quoted specific definittons from
$ 2 (we included 5 2e on the assumption that the road is maintained by the
county or by a county commissioner and, although your letter does not
reveal this information, your brief so indicates). Moreover, subsections
e and (1) of $ 2 refer to poorly maintained sewage conditions and these
impliedly could apply to the conditions described in the health unit’s letter.
On the other hand, we doubt that the conditions described in 3 and 4
of the letter would invoke the provisions of Article 4477-l. The fact that a
road is not adequate to handle the amount of traffic required of it seems
to us remote from the health hazards contemplated by Article 4477-l.
The well-written and well-reasoned brief provided with your request
reaches a contrary result based upon Articles 2351, 6713, 6730 and 6771,
V. T. C. S. , which give county governments exclusive authority over the
maintenance of county roads, including the construction and maintenance
of drainage facilities. We do not believe that these statutes authorize
a violation of Article 4477-1, V. T. C. S. , or the maintenance of a health
nuisance as defined therein, e. g., Article 4477-1, $2 (e), V. T. C. S. ,
supra.
SUMMARY
Conditions of a road may be considered a health nuisance
under the provisions of Article 4477-1, V. T. C. S. , if the
conditions defined in the statute exist with reference to
or because of the road or its maintenance.
Very truly yours,
u JOHN L. HILL
Attorney General of Texas
p. 1307
The Honorable William J. Bernardino page 5 (H-280)
DAVID M. KENDALL, Chairman
Opinion Committee
p. 1308