The Attorney General of Texas
April 15, 1980
MARK WHITE
Attorney General
Honorable Joe Resweber Opinion No. NW-17 1
Harris County Attorney
1001 Preston, Suite 634 Re: Authority of certain counties
Houston, Texas 77002 to require building permits for
structures outside the area
designated by the Federal Flood
Insurance Administration.
Dear Mr. Resweber:
You have asked our opinion whether Harris County has authority under
law to require building permits for structures constructed or placed within
that portion of the unincorporated area of Harris County which is outside of
the flood plain areas designated by the Federal Flood Insurance
Administration as having special flood hazards. You advise that
regulations of Harris County, Texas, for Flood Plain
Management require everyone outside of the
corporate limits of any municipality to secure a
permit prior to the construction of a structure, in
order to assure that all structures within the loo-year
flood plain are build [sic] to the elevation of the lOO-
year flood.
It is well established that counties have only those powers and duties
that are specifically conferred upon them. Canales v. Laughlin, 214 S.W.2d
451 (Tex. 1948); Mills County v. Lampasas County, 40 S.W. 403 (Tex. 1897).
Consequently, unless the legislature has granted the county power to
regulate within or without the flood plain areas, it cannot require building
permits.
Counties have been granted limited powers under the Flood Control
and Insurance Act, Water Code S 16.3ll et seq. We have previously
concluded, however, that while that act authorizes political subdivisions to
enact land use regulations which have as their purpose and effect
compliance with requirements and criteria promulgated pursuant to the
National Flood Insurance program, the regulations have no application
outside areas designated by the Federal Flood Insurance Administrator in
accordance with 24 C.F.R. section 1910.3, after that designation is made.
Attorney General Opinion H-978 (1977).
P. 544
Honorable Joe Resweber - Page TWO (MW-17 1)
The same legislature which passed the Flood Control and Insurance Act provided
additional flood damage control powers to certain counties. These counties are those
bordering on the Gulf of Mexico or the tidewater limits thereof. Article 1581e-l., section
2, V.T.C.S. Harris County is such a county. The power conferred on these counties is set
forth in section 4, which provides:
The commissioners court of any such county shall have the power
and authority to enact and enforce regulations which regulate,
restrict, or control the management’ and, use of land, structures,
and other development in flood, or rising water prone, areas in such
a manner as to reduce the danger of damage caused by flood losses.
This power and authority may include, but shall not be limited to,
requirements for floodproofing of structures which are permitted
to remain in, or be constructed in, flood or rising water prone,
areas; regulations concerning minimum elevation or any structure
permitted to be erected in, or improved in, such areas;
specifications for drainage; and any other action which is feasible
to minimize flooding and rising water damage.
The powers are not restricted by or conditioned on any actions of the Federal Flood
Insurance Administrator.
The powers may only be exercised in the flood or rising water prone areas.
However, section 2 of the act empowers the commissioners court to conclusively establish
the limits of the flood or rising water prone areas by making findings in a resolution
passed by it. Attorney General Opinion H-1024 (1977).
Thus, upon the definition of flood or rising water prone areas within the county, the
commissioners court acquires regulatory authority in the defined area that is not
contingent on or limited by the actions of the Federal Flood Insurance Administration.
While we do not pass on the specific details of any plan, regulations promulgated by the
commissioners court, requiring building permits within the defined area, to assure that all
structures within the loo-year flood are built to the elevation of the loo-year flood plain,
are clearly within the power delegated to the court. As noted in the purpose of the Act, it
is intended “. . . to promote the public interest by providing appropriate protection against
the perils of flood losses and encouraging sound land use by minimizing exposure of
property to flood losses.” V.T.C.S. art. 1581e-1, S 1.
SUMMARY
Article 1581+1, V.T.C.S., gives the commissioners court of Harris
County authority to require building permits in unincorporated
areas for structures constructed or placed in the &fined flood, or
rising water prone, areas which are outside the flood plain areas
designated by the Federal Flood Insurance Administration as having
special hazards.
P. 545
. .
Honorable Joe Resweber - Page Three (Mw-171)
g&
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
TED L. HARTLEY
Executive Assistant Attorney General
Prepared by Tim Brown
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
C. Robert Heath, Chairman
Jim Allison
Tim Brown
Walter Davis
rwm. Gn+fm.
Rick Gilpin
Bruce Youngblood
P. 546