Untitled Texas Attorney General Opinion ( 1943 )

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899
OFFICE OF THE A’ITORNEY GENERAL OF TEXAS
AUSTtN
Bonorahle W. P; Efma, Jr.
County Auditor
W8ller county
Reqw bad, lbxas
as vell a``public interest.
900
Ro~orable W. P; Berms, Jr., Page 2
.
We wLl1 not decide the questign of whether the
rice famers haV,e biilt tie levee in question vron@ally or
negligently or vhether the building of said levee has rem
sulted in floods on other peoples’ land, but for the pur-
pose of your yestion Ye will only discuss what action the
I Coumfsslonero Court can take In the event said levee has
actually been constructed so as to ~3~33 flooding to the
oounty roads and otbeer peoples@ land vlthout the .consent
of’ ‘the custodians and owners of said roads snd lands. .
.I He assme that the lkee In question wa3 made by
the rice fsrzers as en irri&3on lmprovenent to aid then
8. in irrigating tholr rice lnnb, ?%3mfo’r~, Article 0028,
Revlssd Civil Statutes of Texzs, which provides for the
regulation of the building of levees, does not’ apply, be-
,cau38 It contains a provialon as follovsr
a’, .i i , ~Provided, that the pr&lsions
of this section shall not apply to dam, oanals
I or other.kttprovenents uade or to be made by ir-
~rigntion, vater improverjents or lrrljjstlon in-
provenents nade by Lndlviduals or oorporatlons.’
: .__ The Fight of the’nei@borlng farmers for Fedress
of thebr Injuries as a result of the flood3 catised by the
byild~ of. said levee is a prLsate right; and the State
and its politic,al subdivisions, such as Counties, cannot
prosscute aotions for the protection of private rights.
The State has~created courts Ln which the rights of per
sons and ‘ropertp can be protected and disputes betweeil
oitizens Eitigated. A citizen who believes thst his pro-
perty &s .bsen injured.because of the yrongul aot of
another ,ahould go into court and brti?; the proper action
to re,dress~the’ufong done to bin. The State will not
bring .the s&Ion f6r Nn. In 53 Corpus Juris. 324 it aagst
'I . . . . a state is neither a neceesaq
nor proger party pkintiff to a civi& actl.oa
vhLch~lnvolves aerely tfie protection of a pri-
vate right or the rdreas of a private wrong,
in which the ststo or tile puhlio is ti 110 w8y
interested . .,. ..”
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901
EoAorable If. P, Hems, Jr., Pa@ 3
:2, >,
If the State’s groyerty is injured,or 8 publ.Lo
vrong is coxmlttsd, by sorreone the State can go into court
and prosecute an action, but it cannot prosecute an action
to redress a private uroq.. IA the cabe of Ex psrte Xrlghes
133 Tex. 505, 129 3.W. 2nd 270, the Suprane Court of Texas
raid) -, .
b . . . . The State caq go to court to
enforce its own property or 01~3.1 rig&a, and
the prqcrty or oivil riii;hte of the public Fn .
SeAoral. By public in general ia near& the
entire public, not mersly ri&ts of interest
to BOIMparticular group, evm though ttit.
group nsy be of large proportiom.”
in the case of Jeffereon County Dr&?age Disk
Ho. 6,~. Southvell, 32 S.W. 2nd 895, it uas hold that a
draInage district could not nzintaLn a quit to abate a
nuisance caused by a dzxnbuilt by lndivLduols and which
only iajured nearby landowners, but that~ orJy safd in-
jured land,ouners could maintain such suit.
.-
Beoausk of the foregokq reasons, vir are of the
op%nlon that the Comaisslonerst Court has no authority to
take xaq action because of the “flooding of a nmber of
fanners as a result of the build&q of said levee.
OA the qusation oomerdng the floodlcg of the
county.roads, ve me of tha optiioa that the Commissioners’
Court can take some action.
Article 2351, Revised’ Civil Statutes of Texas,
provides I.n part as followa:
“&ch co*ssl,oners co&t shall-i
‘I
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“6. aercise genmal control over all
roads; high-days, ferries and briees in thcir~
CouAtloa* :
tl.. l . ln
902
Honorable Vi P. Hems, Jr., Page 4
..
The authbiity of the Comissio~ers’ Cotits vhich arises by
virtue of the powers co;lferred u?on tima by tho Legislature
%a expressed ,in 11 Texas Jurisprudence 565, 566 as ,follous~
.
.~ 9 ..l’in
th eCo unty
Co sllllssla Aer
c os
ur
’~t
-is the active governing body OS the county,
with 8 juriadictlo~ that touches $.n soze res-
poat alzost ever7 featum of the ‘county’s
buslnass, and the court hse full and ,gemral
charge of the buslnoss affairs of t’ne county.
., . . . Anti it is held that the comissionera’
courts have lzzpllsd euthority to da what my
be necessary in the exercise of the duties or
pdrers conferred UBOAthm,”
%W& authority lnoludes the filing of! suits, if necessary,
in orc?er to carry out their povors. Sn the case of ~ooecan
v. County. of Earris, 58 Tex. 511# the court sa1.d:
.
“The comslssloners~ court, prcsldid over
bi'the Counts Sudae. - _ is VirtuallY a council
vegted with polar to mnage and hircct all such
msterlal aa f33i3ncirrl Interests of the county
as the laws ,of the stats have confided to its
jurisbiction. TUGcaao~exmt of’ the fimr~eial
affairs of the coyty hme always heretofore
been vested in tribunals vfrich have existed st
different tines under vsrl.ous mms and desig- ..
nations, such as county court, com%esZonors’
court, etc.; they have, however, all been
alothed with similar powers, and like &ties
have been tipo?ed upon then. The cmlssloners~
oaurt undoubtedly has tha right to cause stits
to be instituted in the nme of snd for the
.ba?er”lt of the coimty, and except where a aon-
current rQjht to do the 3am thin& or whore
an exclusive right in a specified case or oases
‘is conferred upon tcm othor tribunal or som
other officer of the govemmnt, the COX&-
sioners’ court must be decned to be the quasi
executive head of the county, vested with ex-
oluslve power to deternine when a suit shall
be instituted ti the nme of and for the bene-
fit of the count$.n
903
Eanor8ble W. Pr Eems, Jr., Pa3e 5
To~the sea8 &feat is the holding of the aouzt in the case
ot.Brite v, Atasaosa County, 247 9.W. 878, in whXoh it MS
aaid:
s ..“’ The statute (article 1365) ex-
~pressly’~&~s*eac’i county a body-cozporste and
polltic, and as such it unao-.iXmIly ha the
‘paver sod 4utoority to Institute suit3 2nd
,’&fed a&nat those brought a@.nst it. The
iComtitut2on of Texas reco;;nizes domties as
muniaipal.corporations along vith cities end
i to u x ls . . l .’
As the.Comissioners* Court hes control over the
camit* rozds a?d 4s said court hzm tha lqlied authority
to do vhxt is necessary ti order to aarry out the powers
aonforred upon it oven to the extent of institutirq suits
in the nem of a.pd.for tlm bezcfit of the comty, we see
no ressoz w*hythe Comisaiomr3~ Court could not tisti-
tute a suit to prevent 4n unlcvful i&m?femme with the
county roads. xn 25 &mdcan ``~ioprum~ce 618 t’ais par-
tiaular subject is discussed L~Iwoqda as follows:
‘Injumtion oxL?.mrily lie* at tho suit
of the proper public authorities to prevent
8.u un14wrful obstruction of or encroacixmt
upon a publtc w4y uixLchlnterfemg~with the
enjoyment of the public rl@t, to prGvG3.t the
creation or ~alntexnce of a nuisance th?srein,
or to congcl the removal or ab4tezent of such
83 obstruation, enc,no4chzent, or nuiszi~ae. A
govermental agency which owns the fee of the
atreet’or othep hishmy imy also, in 4 propeP
case, naimh3.n .an action to enjoin 311mlzmr’ul
obstpuotlon thereof, upon the grmi~3 that suoh
obstructions mounts to a tresp,css . . . .’
In the recent case of State v. Dickey, 158 S.Y. ad 894, the
State brought s-tit against ILLLtiividu?l31 fo? dzmging a .
bridge on a highvay controlled by the State through its
State Hishvoy Departuent.
i I. .
904
our ansver to your inquiry is th3t the Coz!mlia-
rlmers’ Court of Yaller Comty ha5 no authority to take
amy actio?l on be:&%lf of the famers vhooe lfinds have )oen
Slooded 08 a result of the building of tba lovae by other
parsons . Scid finer8 are entitled to t&e action on their
ovn baslr. Ho*mver, it IS o'ur further enwer thzt the
Coixtlssioner`` Court Is e'lltltlcd to Lnstltute suit ln the
none of and for tho benefit of the county to enjoin the
msintdning of said levee In a imnner %hat Vi11 cause
flooding of the county rocds. OS course, ue are not indi- ..
catlng the outcozm of such a suit, becmxi that vi11 dc-
pend onth3 fact8 that are dovelopd during the trial.
ATTORiQY02iX2R&L
OF !iXXAS