Untitled Texas Attorney General Opinion ( 1967 )

GENERAL
Hon. Joe Reeweber ~'. Opinion HO. ~-56
County Attorney
H+rrie County Courthouse Re: Whether the Commissioners
Houston, Texas Court of Harrta County may
require that plans and
speclflcatlons of storm
sewers of Fresh Water Sup-
ply Districts be submitted
to the County E@neer,
for hi6 approval, prior
to conefi~ctlon of such
8ewer6 when the storm sewers
are to.be locs``d,wl.th.in~
the area1 ccipfineeof Barr16
County,made; ln '.~.ub~$~:aj.ons
not within. cities;,. ind...qy
p+i@j*, pTopeyty not within
clt,lea;,md whether T,exas
watqr Rlght6 Conrmfssionhq6
any,au$horlty t~i&xf?rdise,
supervisory pates ti+Fr,mch
d&~&,r%cteduring the, cpn-
BtrQctlon and~maintenance
Dear Mr. Remeber:<' Of .su'dh StOl’kll6eWer6.
Your request 'ior an opinicinof this office present6 the fol-
lowing questions:
"1. WIðer or not themComm&a~ioners'Court can requipe
that plane and specifications be eubmitted to'the
County Engineer for his approval.,bythe Fresh Water
Supply District p+pr,.to.$he actual construction and
installation of storm sewerg, when said storm sewers
are located within the area1 confines of Harris
County roads?
'2. Whether or not the Comiesloners Court can re-
quire that plan6 and epecificat,ionsbe submitted to
thenCounty Engineer for his approval by the Fresh
Water Supply District prior to the actual construction
and installation'of storm sewera,.when Said"etor6I
sewers are located within the area1 confines o?
- 256 -
_l”.l c_. _, -....- --.. ---
-~
Hon. Joe Resweber, page 2 (~-56)
Of 6UbdiVi6iOn6, said subdivisions being located out-
side City lititS?
“3. 'Whether or not the Commi,sgi.oners
Court can
require that plan6 and spacifiCat$ons be submitted
to the County Engineer for:,his.,approval
by the
Fresh Water Suppry $$dtefct.pridr to the actual
tj&istticEScii
and installation of '&t&m sewers, when
said storm sewers are built on privately owned lands,
said land6 being located outside city limits?
“4. Does the Texas Water Rights Commission (formerly
Board of Water Engineers) have any,authorlty to
exercise any type Of SUperViSOry power over the fresh
water 6Upply diStriCt6 prior t0 or during the con-
struction and maintenance of storm sewers?"
Theanswef to``yourquestions is dependent upon whether a Fresh
Water Supply District is authorized to construct stcrm sewers;
therefore, consideration shall first .be given to such determination..
Article 7881, Vernon's Civil Statutes, in part, provides:
'There may be created within this State con-
servation districts co be known a6 Fresh Water
Supply District6 for the purpose of conserving,
transporting and di6tributing fresh water from
fakes, pOOl6, reservoirs, wells, springs, creeks,
and rivers for domestic and commercial purposes,
as contemplated b S tl At11 lb fth
State Constitution.
' 'ec(``hii%6 &pElEed) ' e
Article 7918,'Vernon's Civil Statutes, ln.part, provides:
“All district6 Shall have full power and'author-
5--,",t$lld, construct, complete, carry out,
and in case of necessity add to and
rebulld,~all work6 and Improvements within and
without such district necessary to aCCompli6h
any plan of conservation, transportation and
‘distributionof fresh water adopted for or on
behalf of such district,
sary and proper contracts-
son6 and means necessary ioath,
(EmpIiasisSupplieir,
Section 1, Article 7930-4, Vernon's Civil Statute6 (as amended
Acts, 66th Leg., 1957, ch. 232, Sec. 1, p. 484), provides as follows:
- 257 -
Eon. Joe Reeweber, page 3 (~-56)
"All Fresh Water Supply Districts heretofore or
hereafter created under the provisions of Chapter
4 of Title 128, Revised Civil Statutes,of,Texaa,
1925, as wended, in addition to the powers here-
tofore granted, are hereby authorized to pur-
cha6e,``Con6truCt,acquire, own, operate, repair,
improve and extend sanitary sewer syetems for
the collection, transportation, processing, di6-
poeal and control of all domestic, industrial,
and communal wastes provided no other public sanl-
tary sewer 6yatem Is available for the area con-
tained ln such Fresh Water Supply District, and
the powera,herein provided are not.eXerc5.6edex-
cept after a duly called election held In the same
manner as other election6 of Such water district
ae provided by law."
Your letter does not indicate that "no other public sanitary
sewer system is available for the area” nor does It show that an
election as provided In Article 7930-b has been held; therefore,
the applicability of said Article 7930-4, not being shown, we must
look to Articles 7881~and 7918 for such authority. It is the opinion
of this office that Fresh Water Supply Districts have authority,
under Srticles 7881 and 7918 to cone,tructend maintain storm sewe,rs.
for. the purpose of conserving fresh water, whether such storm sewers
are.uqed ~tpd.ivertthe storm waters from.,thereser.volror other
.water source so .a8 to avoid pollu.~jot~,-
cont+m~atlon, eta*, or
whether they are used to more efficiently route the storm water6 to
the lake, reservoir orother water source. This oplnlon is wrlt-
ten.upon the presumptionthat the storm sewers mentioned in your
letter are to be built for one or both 6uch purposes. However, were
the fact situation such a6 to make.appllcable the provisions of
Section 1 of Article 7930-4, then the purposes for which such storm
sewers could be built would be increased so a6 to include the
uco~ilectlon,transportation, processing, disposal and control of
all domestic, industrial and communal wastes."
I.
It is the opinion of this office that the Commissioners Court
may require that plans and specifications be submitted by the Fresh
Water Supply DiStriCt to the County Engineer for his approval, prior
to the actual construction and lnstallatlon of storm sewers, when
said storm sewers are to be located within the area1 confines of
Harris County roads.
The Commlssioners Court is charged with the duty of exercising
control over the road6 in the county and is authorized to make and
enforce reasonable and necessary rules and orders for working said
roads.
- 258 -
Ron. Joe Resweber, page 4 (~-56)
Article 6741, Vernon's Civil Statutes, enacted In 1889, provides
ln part, as follows:
"The commlssloners court may make and enforce
all reaSOnab,leand necessary Nlee and order6
for the worl&g and repairing of public roads,
and to utilize the labor to be used and money
expended thereon, not In conflict with the
laws of this State. . .n
Article 2351, Vernont6~Clvll Statutes, enacted in 1911, pro-
vided, In part; .as follows:
"Each Comml66loner6 Court shall:
11
. . .
“6. Exercise general control over all roads,
hlghtiay6;ferrles &nd bridges In their counties."
The Harris County Road Law, Acts 33rd Leg.,1913 Special Laws,
ch. 17, p. 64, provides, In part, as follows:
"Section 1. That, subject to the provisions
of this Act, the commlssloners court of Harris
County shall have control of all roads, bridges,
drains, ditches, culvert6 and all works and
constructions Incident to It6 roads, brldgee,
and drainage, that have been heretofore laid
out or COnStruCted, or that may hereafter be
laid otitor COnStruCted by Harris County, or
under Its direction.
'Section 2. Subject to the provisions of
this Act, the commlssloners court of Harris
County shall have the power and right to adopt
such rules and regulations for the proper
construction and malnten&nce of Its roads,
bridges and drainage as it may see proper,
and shall have power from time to time to add
to, alter, repeal or amend same;. . .n
1,
. . .
"Section 33. The provisions of this Act are,
and shall be, held and construed to be cumu-
lative of all General Laws of this State, on
the subject6 treated in this Act, when not in
conflict therewith, but In case of such con-
flict this Act Shall control as to Harris County.
Ron. Joe Resweber, page 5 (~-56)
"Section 9. Any and all laws and parts of
laws in conflict with any oi the provisions of
this Act ShEd.1 be, and the same are hereby
repealed."
Fresh Water,Supply Districts have the right of way across
county roads.. .,Artlcle7927, Vernon's Civil Statutes, enacted ln
1919, provide6 as fOlbW6:
"All districts are hereby.glven the right of
way.'&%.%@ a'lipublic or dtinty roads, but
r&stoke such .roads where crossed
they~.~.shal&.
to their previous condition for use, as near
a6 may be."
Article 7928, Vernon's Civil Statutes, also a part of the same
Act, provides:
"Said districts are authorized and empowered
to make all necessary levees, bridges, and
other improvements across or under any rall-
road embanlsmenta,tracks, or right.6of way,
or public or private roads or the,rights of
way ther,eof,or rivers orother public
improvements of other districts, or other such.
Improvements &nd the rights of way thereof,
for.the purpose of securing the fresh water
supply necessary for Said diStrlCt6."
By Acts 50th Leg.,.1947,.ch. 205, p. 358, the Harris County
Road Law was amended by the addition of a Section 7-A, which em-
powered ~the Commlss+o~ers Court of,Rarria County-to grapt,$,qany
peraon;~firm or corpo~atlon en easement or right of way over, -~
al&g or across any.public road in HIartii.8,
Cw$y ivldertheir jurls-
diction, s.ncl,
authorized the court to prescribe,such f+aaon@b&e con-
ditions or restrictions'as it may find necessary pr desirable,
including the charging of a reasonable compensation.
In Count of Harris v. Tennessee Product6 Pipeline Company,
332 S.W.=??+ 781 (T Cl A lgb0 lt hl t a case
questioning td author::; o~'t``*Comm&&``a Co&' 0
' require
a pipe l$ne company, which also has an analogous statutory right
of way across county road6 (Articles 6020, 6022 and 1497,~V.C.S.)
to obtain a permit or franchise prior to crossing such road, the
court stated:
- 260 -
Hon. Joe Resweber, page 6 (w-56)
'It la a generai,ruie‘oi atetut~ory'conatructlon
.tha$atatutes must be ao dqnstrued.,.a.s .to,be
reconciled if posalblc. The InEqtl'on of-the ,.
_'.LaglsXat.ke'Ia o?,``~.impq``@nce. .The Legls:
:; .&at&e.d.oe.s,_not:..qpreas
any IntantI.on. to.repeal
dr-iiodi$y.,.nor0e.sIt ma4 e agy mention of,.....
Artlciee '&X?O, %,022.kid..
.e*
$ gT'el$jk In the-title
or ~h~.,b~.lgi:~e.Am~dato~g, Act.. pe:muet,
t~eye~o~e,,.~cpils~,``f.``ether.the-amen``nt I.6so
ge umwt .to.Articlea 6.02?,,. 6022, ,an9 14% that
.9u ~auch...~R!er&lment.
cqn stand....tie think :no &h
'. &+ncy eXlatW.The atatutea are reconcll-
In39;Tex.Jur..iPp..#X,. Se+.~75, statutee,
It-ii steted: Mieiytheie' 16 no express re-
p&i; the~presuii&lon 16 that~in enacting a new
law the legislature Intended the old statute to
remain In operation.'"
I)
. . .
"The Amerknent provides for the authorizing and
regulating of the granting of easements across
or along roads by the CommIssionera Court, etc.
The critical section of the Amendatory Act Is a
new section known as '7-A.' It provides In pert
that the Coaa6lssloneraCourt of Harris County
shall have the power to grant to any person,
firm or corporation en easement or right of way
over, along, or across anypublic road or high-
way In Harris County and under the JurlsdIctlon
of the CoaakIsaIonersCourt In IierrlsCounty,
outside of the llmlts of any Incorporated city
or town. Such section then-provIdes,certaln
terms end COndi~ion6 under which such person,
etc., she11 use or occ,upythe easement or,.rIght
of way, end provides that the Coa6sl6aIonera~
Court may prescribe such reasonable conditions
or ,restrIctlonaas It may find necessary or de-
sirable. It also provides that no such easement
or right of way shall be granted when it Im-
pedes or seriously Interferes~wlth the use and
occupancy of such public thoroughfare as such,
nor shall it be granted without adequate provision
for the protection end repair o? the road or
thoroughfare by suitable bond." *
II. . .
- 261 -
Hon. Joe Resweber, page 7 (M-56)
“In Humble Pipe Line Co. v. State, Tex.Civ.App.,
2 S.W.2d 1018, error ref., the court held that
the right expressly granted by Article 1497 and
rights which followed by necessary implication,
could be taken away from a pipe line.corporation
only by a special act of the Legislature denying
such right. Surely the 1947 amendment does not
constitute such special act as would be required
to take away from pipe line companies the powers
and rights conferred upon them by Articles 6020,
,,_., 6022 and 1497, V.A.C.S.; Nor does it purport to
take away such powers and rights. It does not
provide that no person, firm or corporation shall
cross a county road without a grant or permit
from the ,.Commissionars
Court. It simply gives
the Commissioners Court the power to grant eaae-
merits. It does not give the County power to
grant crossing rights to public utilities
and common carriers as such, nor does it men-
tion them or the statutes which give them such
power, either in its title or body. It does
confer upon the Commissloners Court the power to
grant such rights to any person, firm, corpore-
tion, which would include private corporation.s,
and which would cover pr.ivatewater, gas, sewer
and other priiratecorporations,,and which would
cover private water, gas, sewer and qtf?erprivate
lines of a local nature. It does not, however,
confer upon the Commissioners Court ‘exclusive’
power to grant such.,
rights.
“The County, as hereinbefore stated,,clearly
has the.right and power to enforce reasonable
regulations in connection with the construction
and maintenance of pipe lines crossing its roads,
but,it has no right to use its regulatory power
in such manner as to deny pipe lines the right
to cross under roads and highways under its con-
trol. We are of the opinion that it has no
right to demand pipe line companies such as
appellee,.engaged in laying inter-county pipe
lines, obtain from it a permit or frAnchiss
before copstructing crossings under such roads.
We find no inconsistency or repugnancy between
Articlai 6020, 6022 and 1497, V.A.C.S., as they
relate to pipeline companies such as appellees
doing an inter-county busine,ss,and the afore-
said Amendatory Act as it relates to persons and
corporations both private and public conducting.
local business witin the confines of the county.”
- 262 -
Hon. Joe Resweber, page 8 (~-56)
As held in Tennessee Products Pipeline Co., supra, the applicable
-_-.-~-~
statutes ``~-~-be
must -~ construed
.````..~
~, so as to be reconciled if possible. As
a pipe line companyhas a right to cross a county road under Articles
6020, 6022 and 1497, it follows that under Articles 7881 and 7918,
Fresh Water Supply Districts have a right o.fway ac.rosscounty roads.
It .ls the opinion of th.is.offlcethat the Commissioners Court-may
neither.require such..dis,trI.ct.to.obtaln a permit or franchise, nor
may lt,,raquira. such.diqtrict to submit plans and spqclfi.cationsof
limproposed crossings before such district has the.rl t ;;ds; zpss.
However, under Articles 6741, 23513 and under Sections4
the Harris County Road Law,.the CosznlaalonersCourt of Harris County
is charged with the duty .pfgeneral control over all roads and they
are authorized to make reasonable and necessaryrules and orders
for working such roads and the maintenance thereof.
Such statutes are either in hopeless conflict or they may be
reconciled. This office is of the opinion that such statutes may be
recopclled and that, in,part, quoting from the case ~of Tennessee~
Products Pipeline Co., supr.a, .The County. ....clearly has the right
and Dower to enforce reasonable reuulations in connection with the
cons%&&t'iori~andmaintenance of" P&sh Water Supply District storm
sewers "crossing Its roads,,,butlt.haa no right to use its regula-
tory power In such,manner as to dany".Fre$h Water Supply Dlstrlcts
"the right to croaa under roads and highways under its control."
In holding that a water district could be required to bear the
expense of lowering Its water lines crossing streets, taken into
the llmlts of the Citv of San Antonio after the laying of the.lines,
so as to conform to n'ew city Improvements, In the case of
San Antonio v. Baxar Metropolitan Water District, 309 S.W.
nex.Civ.App. 199, error ref.), the Court said:
"The main purpose of roads and streets are for
travel and transportation, and while public
utllitiee may use such roada~.andstreets for the
laying of their telegraph, telephone and water
lines, and Sor other.purposes, such uaes are
subservient to the'mai,nuses and purposes of
such roads and streets';"
A .like expression was contained in City of San Antonio v. united
Gas Pipe Line Co., 388 S.W.2d 231 (Tex.Clv.App. lgb5, error ref.,
n.r.e.).
In the case of State of Texas v. City of Austin, 160 Te%. 348,
331 .S.W.26737, 741, (lgbO), the Court also expressed a like opinion
In holding that:
: 263 -
. .
.
Ron. Joe Resweber, page 9 (~-56)
"As pointed.out in the Bexar Metropolitan
Water Distric~tcase, the main purposes of
roads and streets are for travel and trans-
portation. While public utilities may use
the same for laying their lines, such use is
subject.to reasonable regulation by either
the state, the county or the city, as the
case may be. The utility may always be re-
quired, in the valid~exercise of the police
power by proper governmental authority, to
remove or adjust Its lnstalletion to meet
the needs of the public for travel and
transportation."
It is, therefore, the'opinion of this office that the Commis-
sionera Court,may,require Fresh:~WaterSupply Districts tosubmit
plans and specifications to the County Engineer for his approval
prior to the actual construction and installation of storm sewers,
when said storm sewers'are located within the area1 confines of
Harris County roads, as it is a~valld exercise of the police power
by the governmental agency charged with tha'~dutyof control over
such roads. It is~::further thel'opinionof this office that such
regulation may,not be'used by the Commissioners Court so as to de-
feat the right oi?way,of~the.Fre8.hWater Supply District to,cross
such roads;but that-such regulation and Its use will be,:governed
by a standard oftnecesslty..andreasonableness, from an abuse of
which any party would,‘of course, have its redress in court.
ft.is further the opinionof th1.soffice that, in ,view of the
foregoing authorit,ies,had your letter of request.setout, facts
indicating the applicability oi Section 1, oi Article 7930-4, as
amended, the first question none the less would have been answered
in a like manner and as above conditioned.
.,, II.
It is the opinion of this office that your second question
should be answered in the negative, Insofar as It relates.to storm
sewers of Fresh Water Supply Districts to be located outside the
area1 confines of Harris County roads.
The brief accompanying your request +zggests,that &ticle
23'72K, Vernon's Civil Statutes, grants to,.t,he
Commissioners Court,
the continuing power of regulation,of, or-control over, drainage
in subdivisions after the authorization by.the Commissioners Court
of the recordation of the subdivision plat.
:-264 -
Ron. Joe Resweber, page 10 (~-56)
It is the oplnion’of this office, ,as expressed in Attorney
General's OpinionC-66 (1963),+tthst,Artlcle2372 K mu& be con-
sldered in pari -materiewith Article 6626, Vernon~s~Glvll Statutes,
and that It constltutea a reglStrSti~n statute setting out certain
prerequisites $h_at ~w,be requlred,.beforea p&at is approved for
recordatlon; thatthe Gommissionera.Court may not make require-
ments not therein authorized; and that the itatute does not pur-
,port to grant any owers of regulation by the Commissioners Court
after recordatlon ehat are different from, or in addition to, the
powers they have over any other area ln the county. Commissioners
court v. Frank Jester Development Co. 1% S.W.2d 1064, loq
(Tex.clv.App. lgb0, error ref. n.r.e. .
Article 67'i'l;Vernon~sCivil Statutes, and Section 14 of the
Harris County Road Law, set out.certaln powers ln the Commissioners
Court in regard to drainage and the regulation thereof; but it 1s
the oplnlon of thiS.OfflCe that such statutes also must be read ln
conjunction with Articles 7881 and 7g18,grantlng certain powers to
Fresh Water Supply Districts.. If the Commissioners Uourt had the
authority to require its prior approval of a Fresh Water Supply
District storm sewer plans and specifications enerally, such would
in effect nullify the provislcns of Articles 7 88 1 and 7918.
Therefore, it 1s the opinion of this office that insofar as
1ands~i.nsubdlvlsl~s,~outslde the area1 conflnes of.county roads,
are concerned, the .CommlssloneraCourt.18 without authority to
require that a Fresh Water Supply District submit to the.County
Rngineer its plans and specifications of proposed storm sewers for
his approval prior to the construction thereof. Fresh Water Supply
District storm sewers, to be placed within the area1 confines of
county roads within subdivisions, would be governed by the same
laws.as storm sewers within the area1 confines of :ounty roads
not within subdivisions, and -the question as to the,prlor submission
of such plans and speciflcatlons to the County Engineer for his
approval.would be included within, and answered by, the answer to
your first question.
III.
It is the opinion of this office that your third question
should be answered in the nega~lve, for the same reasormas set out
in.inswiw to your second question insofar.68 such-answer applies to
lands ln subdivlslons, but outside the area1 confines of county roads
IV.
We are not author1ze.dto,..answer
your'fourth question, as it
appears that the subject matter,thereof does not cqpcern the Com-
,missionersCourt and you can only advise said Court on~matters
concerning it's official duties.
. 1, .
Hon. Joe Resweber, page 11 (n-56)
SUMMARY
A Fresh Water Supply District may construct storm sewers
necessary to,a.coomplisha plan of conservation of .freeh
water. The Harris County Commissioners~Court,may require
that plans and spaciflcatio?isof such distrlctls storm
sewers,.that..areto be located within the weal confines
of ,Harris,County roadsj beg,
submit.te,d.
tomthe..
County Rn-
ginee,rprior to the construction thereof.;but .may.not
require such plans and specifications to be,.submitted in
situations where the storm sewers are to be located in
subdivisiona, “outside city~limits and not within the
area1 confines of c’ountyroads; and nay not require the
submlselon of such plans when ~the ~stom $awera era to be
built on private property located outside city limits.
V#jJ tnily yours,
Prepared by Harold 0. K.wedy
Assistant Attorney General
RGiC:bp
APFaovKD:
OPIRIOR COMMITlcEE
Hawthorne Phillips,,Chai~rman
W. V. Geppert, Co-chairman
Roger Tyler
Houghton Brownlee, Jr.
pJ:kBg;;;
STAFF LRGAL ASSISTANT
A. J. CARURRI, JR.
- 266 -
t