The Attorney General of Texas
octdser 14, 1980
MARK WHITE
Attorney General
Mr. Doyle W. Neighbours Opinion No. I+%+257
Criminal District Attorney
Brazoria County Courthouse Re: Responsibility for construction
Angleton, Texas ‘7’7515 and maintenance of drainage district
bridges on county roads
Dear Mr. Neighbours:
You have requested our opinion regarding the responsibility for
construction and maintenance of bridges on county roads in special districts.
You first ask who is responsible for the construction and maintenance of
bri%es over watercourses in drainage districts, municipal utility districts,
and water improvement districts.
Section 56.121 of the Water Code provides that the board of a drainage
district:
shall build necessary briees and culverts across or
over canals, drains, ditches, laterals, and levees
which cross a county or public road and shall pay for
the construction with funds of the district.
Section 55.166 imposes similar requirements for water improvement
districts:
The district shall build necessary bridges and culverts
across and over district canals, laterals, and ditches
which cross county or public roads. Funds of the
district shall be used to construct the briaes and
culverts.
Section 54.217 states the following with respect to municipal utility
districts:
All districts are given right-of-way along and across
all public, state, or county roads or highways, but
they shall restore the roads crossed to their previous
condition of use, as nearly as possible at the sole
expense to the district.
p. 813
Mr. Doyle W. Neighbours - Page Two (Mk+257)
Each of these statutes imposes upon the respective special district the duty of building
bri*es over watercourses which cross county roads.
Article 2351, V.T.C.S., however, orescribes that a commissioners court shall
“build bridges and keep them in repair.” In Hidalgo County Water Control &
Improvement District No. 1 v. Hidalgo County, 134 S.W. 2d 464 (Tex. Civ. App. -San
Antonio 1939, writ ref’d), the court reconciled this apparent conflict regarding the duty
of building bri@es:
. . .the primary duty rests upon the county to build and maintain
or cause to be built and maintained all bridges necessary to the
proper operation and maintenance of its roads, and even where
that duty is delegated to other agencies. . . the primary duty
still rests upon the county, so that if the secondary agency fails
and refuses to perform, the county shall nevertheless put in and
maintain such bri@es, and exact reimbursement from the
defaulter, through the courts, if necessary.
134 S.W. 2d at 466. We note that a county “may not recover for expenditures upon
construction, repair or maintenance of bridges for roads laid out and opened by the
County across pre-existing district canals.” rd, at 468.
The court in Hidalgo County also made clear that the requirement of building
bridges extended to their mamtenance and repair:
. . .it was the intention of the legislature. . . to require. . .
districts to restore county roads to the same condition of safety
in which the districts find and cross them; to relieve the county
of any expense made necessary by the intrusion of the district
upon its prior easement. Because of the very nature of said
intrusion - a sort of legal trespass - the statute by express
language put the duty upon the district to restore the status quo
ante, and by implication, to maintain that status so long as the
district obstructs the free use of the county’s prior easement.
& We conclude that a special district is charged with the duty of construction and
maintaining bridges across county roads, but that if the district fails to perform such
obligation, the county must construct end maintain the bridges, and exact reimburse-
ment from the district. -See Attorney General Opinion O-1018 (1939).
You also ask whether a county may specify replacement specifications for
bridges over canals. Section 54.2271 of the Water Code makes such a provision for
municipal utility districts:
Construction work of a district located wholly or partly outside
the extraterritorial jurisdiction of a city shall meet standards
established by the commissioners court of the county in which
the district is located to protect local drainage and to prevent
flooding in flood-prone areas.
p. 814
Mr. Doyle W. Neighbours - Page Three @@-257)
No such requirement is imposed for drainage ~districts or for water improvement
districts, however, and in its absence, we do not believe the commissioners court is
authorized to require compliance with particular specifications.
SUMMARY
A special district under the Water Code is charged with the
duty of constructing and maintaining bridges across county
roads, but if the district fails to perform such obligation, the
county must construct and maintain the briclges, and exact
reimbursement from the district.
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Rick Gilpin
Assistant Attorney General
APPROVED:
OPINION COMMlTTEE
Susan Garrison, Acting Chairman
Jon Bible
Walter Davis
Rick Gilpin
p. 815