TRP: ATIVDRNEY GENERAL
OF TEXAS
AUWISN.
- 7elll
*O-N L BII.&
Am- o-An,,
July 18, 1977
Hon. Joe A. Hubenak, Chairman Opinion No. H-1024
House Committee on Agriculture
and Livestock Re: Authority of counties
Texas House of Representatives bordering Gulf of !4exicoor
State Capitol its tidewater limits to enact
Austin, Texas 78701 flood control regulations
under article 1581e-1, V.T.C.S.
Dear Chairman Bubenak:
You have asked whether a county bordering the Gulf of
Mexico or its tidewater limits is authorized by article 158le-1,
V.T.C.S., to enact flood control regulations governing all areas
of the county subject to flooding , or if regulations,so enacted
are applicable only to areas subject to flooding by the Gulf.of
Mexico or its tidal waters. Article 1581e-1 was enacted by the
Legislature in 1969. Like article 8280-13, V.T.C.S., article
1581e-1 was enacted for the purpose, inter alia, of permitting
political subdivisions of the State to enactregulations neces-
sary to participate in the National Flood Insurance Program.
See 42 U.S.C. 66 4001-4128: Attorney General Opinions H-1011,
-78 (1977). Unlike article 8280-13, however, article 1581e-1
applies only to counties bordering on the Gulf of Mexico or the
tidewater limits thereof. Article 1581e-1 is also dissimilar
from article 8280-13 in that it contains no deadline for counties
to qualify for participation in the National Flood Insurance Pro-
gram., Cf. Attorney General Opinion H-1011 (1977) (a county has
no presx authority to enact land use regulations for flood-
prone areas 'undera?ticle 8280-~13unless it qualified for par-
ticination in the National Flood Insurance Program bv June 30,
Article 1581e-1 thus authorizes counties bordering the
Gulf of Mexico or its tidewaters to qualify for participa-
tion in the federal flood insurance program at any time, but
limits the geographical coverage of flood control regulations
promulgated by such counties to "flood, or rising water prone,
areas. " Section 4 of article 1581e-1 provides:
,p. 4229
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Hon. Joe A. Rubenak, Chairman - Page 2
The cosmiissionerscourt of any such county
shall have the power and authority to enact
and enforce regulations which regulate, re-
strict, 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 flood-proofing
of structures which are oermitted to remain
in, or be constructed ini,flood or rising
water prone, areas; regulations concerning
minimum elevation of any structure nermitted
to be erected in, or improved in, &ch areas;
specifications for drainage; and any other
action which is feasible to minimize flooding
and rising water damage.
(Smphasis added). A "flood, or rising water prone, area" is
defined by section 3 as
an area that is subject to or exposed to.
flooding by the Gulf of Mexico or its tidal
waters, including lakes, bays, inlets, and
lagoons, which results in damage to land
or property.
We believe these provisions of article 1581e-1 limit the
power of the commissioners court to enacting regulations appli-
cable to areas subject to flooding by the Gulf of Wexico or its
tidal waters, including lakes, bays, inlets and lagoons, and do
not make those regulations applicable to all areas of the county.
Cur conclusion is supported by an examination of the legisla-
tive history of article 1581e-1. As originally introduced, the
bill which was ultimately enacted as article 1581e-1 provided:
The term 'flood, or rising water prone,
area" as used in this Act means areas
that are subject to or exposed to flooding
by waters and consequential damages.
Senate Bill 734, 61st Leg., Reg. Sees., S 2. The Senate Com-
mittee on Insurance amended the bill to substitute the more
limited definition of "flood, or rising water prone, area"
found in section 3 of article 1581e-1. The amended bill then
p. 4230
Hon. Joe A. Hubenak, Chairman - Page 3
passed both houses of the Legislature unanimously. We think
it clear that the action of the Senate Cosnnitteewas intended
to limit the geographical scope of regulations promulgated
pursuant to article 1581e-1 to areas subject to flooding by
the Gulf of Mexico or its tidal waters, including lakes, bays,
inlets and lagoons.
Section 2 of article 1581e-1, however, empowers the com-
missioners court of the affected county to determine the
boundaries of such areas. Section 2 provides:
Any county bordering on the Gulf of
Mexico or the tidewater limits thereof
may determine and describe the bound-
aries of flood; or rising water prone,
areas. The suitability of such deter-
mination shall be conclusively estab-
lished when the commissioners court of
auchounty shall have made a finding
in a resolution passed by it that an
area or areas located within the bound-
aries of such county are flood, or rising
water prone, areas.
(Emphasis added). Thus, the commissioners court of a county
bordering the Gulf of Mexico or its tidewater limits may con-
clusively determine the geographical scope of its powers
under article 1581e-1 through a resolution finding the bound-
aries of flood or rising water prone areas. Cf. Texas Highway
Commission v. El Paso Building and Constructii%-Trades Council,
234 S.W.Zd 857 (Tex. 1950) (statute making determination of
the Highway Commission as to general prevailing wage "final"
made Commission's decision not subject to review by the courts).
SUMMARY
The commissioners court of a County bor-
dering the Gulf of Mexico or its tide-
waters is authorized by article 1581e-1,
V.T.C.S., to enact land use regulations
applicable only to areas subject to flooding
by the Gulf of Mexico or its tidal waters,
including lakes~,bays, inlets and lagoons.
The commissioners court may conclusively
establish ~the limits of such 'areasby making
findings in a resolution passed by it.
p. 4231
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Hon. Joe A. Hubenak, Chairman - Page 4
Attorney General of Texas
APPROVED:
ROBERT ~HMTE, Chairman
ginion Cosdttee
klw
p. 4232