Untitled Texas Attorney General Opinion

THEATI'ORNEY GENERAL
OF TEXAS
Ausrr~~. T-s W3nl

June 18, 1974

The Honorable Harry P. Burleigh Opinion No. H- 328
Executive Director
Texas Water Development Board Re: Authority of the Texas
P. 0. Box 13087, Capitol Station Water Development Board
Austin, Texas 78711 regarding approval of plans
‘for the construction of levees
The Honorable Joe Resweber or other similar improvements.
Harris County Attorney
Harris County Courthouse
Houston, Texas 77002

Gentlemen:

Each of you has asked our opinion as to the authority of the Texas
Water Development Board to approve plans for the construction of levees
or other similar improvements.

Mr. Burleigh’s first question is:

Does the Texas Water Development Board have the
duty and authority to approve or disapprove the plans.
for proposed levees to be constructed by anyone other
than a levee improvement district?

Mr. Resweber asks:

Is the Harris County Flood Control District
required to submit its plans for the rectification
or partial realignment of titural streams to the
Texas Water Development Board?

and

p. 1519
The Hon. Harry P. Burlcigh
The Hon. Joe Resweber page 2 (H-328)

If the Harris County Flood Control District
is required to submit natural stream plans to the
Texas Water Development Board, does the requir‘e-
ment extend to the construction or improvement
of man-made lateral drainage facilities as well?

The Water Development Board (hereafter, the Board) is charged with
the responsibility of preparing and developing “a comprehensive state water
plan” and instructed to “direct its efforts toward the orderly development
and management of water resources in order that sufficient water will be
availabletireasonable cost to further the economic development of the entire
state. ” Sec. 11.101, Water Code, V. T. C. S.

It is the chief purpose of Subchapter K of the Water Code to provide
plansfor improvements to reclaim land not suitable for use because of water
accumulation. Section 11.451, Water Code, V. T. C. S. The Board is given
broad powers within certain standards set by the Code. Sets. 11.452,11.453
11.454, Water Code, V. T. C. S. The Subchapter concludes with Sec. 11.458,
which provides:

(a) No person, corporation or levee improvement
district may construct, attempt to construct, cause to
be honstructed, maintain, or cause to be maintained, any
levee or other such improvement on, along, or near any
stream of this state that is subject to floods, freshets, or
overflows, so as to control, regulate, or otherwise change
the floodwater of the atream, without firrt obtaining approval
of the plans by the board.

(b) Any person, corporation, or levee improvement
district who violates any provision of this section is
guilty of a misdemeanor and upon conviction is punish-
able by a fine of not more than $100.

p. 1520
The Hon Harry P. Burleigh
The Hon. Joe Resweber page 3 (H-328)

any violation or threatened violation of this
section.

(d) This section does not apply to structures
authorized by the Texas Water Rights Commission.

Furthermore, Sec. 57.102, Water Code, V. T. C. S., in the chapter
dealing with levee improvement districts, expressly prohibits any “person,
corporation,or district ” from constructing a levee or other improvement on
or near any stream which is subject to floods, freshets, or overflows,
except for irrigation or “water improvement” purposes, without first
obtaining approval of the plans from the Water Development Board This
provision replaced Article 136. 3, Vernon’s Texas Penal Code, which
called for approval by the State Reclamation Engineer.

Therefore, we would answer Mr. Burleigh’s first question in the
affirmative, that the Texas Water Development Board does have the duty
and authority to approve or disapprove plans for proposed levees to be
constructed by any person, corporation or levee improvement district.
The answer to Mr. Resweber’s first question, aw to whether the Harris
County Flood Control District is one required to submit plans to the Board,
will depend primarily upon whether it is a “person, corporation, or levee
improvement district. ”

The Harris County Flood Control District is not a general law “levee
improvement district”, Sets. 57,001 et seq. Water Code, V. T. C.S. It is,
on the other hand, a special law district created in 1937 by Article 8280-120,
V. T. C. S. Section 1 of Article 8280-120 provides that’-the District “shall be
a governmental agency and body politic and corporate . . . ” The District
was created pursuant to Sec. 59 of Article 16 of the Texas Constitution,
which provides that such ~districts “shall be governmental agencies and
bodies politic and corporate . . . ”

Nothing in the Act creating the District, nor in subsequent amendments,
demonstrates a legislative intent that it should not be required to comply with
statutes (Article 8028, R. C. S., 1925, repealed, 1967, and Article 1363, Texas
Penal Code of 1925, now Section 57-102 of the Water Code), which requires

p. 1521
The Hon. Harry P. Burleigh
The Hon. Joe Rerweber page 4 (H-328)

the approval of su,ch plan6 by the Board or its predecernor.

No cane has decided whether a Sec. 59 flood control district is a
person or a corporation within Sec. 11.458 or Sec. 57.102 of the Water
Code. But it has been held that it ir a corporation within the prohibition
of Sec. 52 of Article 3 of the Conlrtitution prohibiting the lending of a county’s
credit to “any individual, a66ociation or corporation. ” Harrir County Flood
Control District v. Mann, 140 S. W. 2d 1098 (Tex. 1940). Compare San
Antonio River Authority v. Sheppard, 299 S. W. 2d 920 (Tax. 1957) and
Bexar County Holrpifal Di6t. v. Crorby, 327 S. W. 2d 445 (Tex. 1959).

In addition, part Attorney General opinion6 have cla66ified many
6imilar governmental entitie6 as “person6 ” for the purpores of taxation
and admini6trative control over their actions. The6e entitie6 include the
State Board of Control, Opinion No. WW-721 (1959); the State Park6
Board, Opinion No. WW-821 (1960) ; and the Tao6 Department of Correc-
tions, Opinion No. M-651, M-651-A (1970). Such a construction ir required
in thi6 ca6e by Section 1.04 (2) of Article 5429b-2, V. T. C.S., which states
the following:

(2) “person” includes corporation, organization,
government or governmental 6ubdivi6ion or agency,
. . . , and any other legal entity;

It i6 our opinion that Harri6 County Flood Control District ir a person
or a corporation, within the coverage of Sets. 11.458 and 57.102, Water Code,
V.T.C.S., and i6 required to obtain the approval of the Texas Water Develop-
ment Board, 60 long as not otherwise excepted, and we anrwer Mr. Resweber’s
fir6t question in the affirmative.

Not every activity in or about a rtream rubjectr the actor to the
regulation of the Water Development Board. Section ll. 458 (d) itself,
excepts structures authorized by the Texas Water Rights Commission.
Only those levee6 or improvement6 need be approved which are constructed,
or maintained on, along or near one of the described streams “so as to

p. 1522
The Hon. Harry P. Burleigh
The Hon. Joe Resweber page 5 (H-328)

control, regulate, or otherwise change the flood water of the stream.”
Whether, as asked by Mr. Resweber’6 second question. this requirement
extends to the construction or improvement of a man-made lateral drainage
facilities depends on the facts in a given situation, and resolution of this
question should at least initially be made by the Board subject to judicial
review. Security State Bank of San Juan v. State, 169 S. W. 2d 554 (Tex.
Civ. App., Austin, 1943, err. ref’d., w. o-m.) Consequently, the plans
for both lateral drainage facilities and rectification or partial realignment
of natural stream6 should be submitted to the Board for its determination
as to whether such structures would control, regulate, or otherwise change
the flood waters of the stream involved.

Finally, Mr. Btirfeigh a6ki~: ‘. :‘. (’

If such a duty exists, should the criteria and procedure
which have heretofore been employed be followed, or
must the Texas Water Development Board consider effects
of a propoeed levee upon the rights of third parties who
may assert that their interests are adversely affected
rather than consider only the technical aspects of whether
a proposed levee will safely perform the function for
which it is intended? If third party rights are to be
considered, what procedures should be followed?

The “criteria and procedures which have heretofore been employed”
are described as follows:

For as long as we have been able to determine,
the State Reclamation Engineer as well as his various
successors, including the Texas Water Development
Board, have passed upon the plans of proposed levees
according to two criteria only. These are:

1. The construction of the levee must be
based upon sound engineering principle6
so that its structural integrity will safely

p. 1523
The Hon. Harry P. Burleigh.
The Hon. Joe Rerweber page 6 (H-328)

withstand the water6 which it ir designed
to redrain, con6idering all topographic
feature8 including exirting leveer.

2. The plan of the propored levee muat be
compatible with exirting hydrological
condition6. In thin connection, con-
6ideration mu6t be given a6 to any
po66ible deleteriou6 effecta, 6uch a6
overtopping or undermining, upon any
exirting 6y6tem of leveer.

At no time in the part did the State Reclamation
Engineer or any of hi6 6ucces6or6, including the
Texan Water Development Board, act ae’an adminiatra-,
tive tribunal in determining or adjudicating the right6
of third partie6. Levee plan6 have alway been approved
if the two criteria 6tated above have been met and
dirapproved btherwire. without adminirtrative hearing6
or the procedural requirement6 which accompany them.
Thi6 has been the con6i6tent adminicltrative conrtruction
of the rtatuter, relating to the approval or dilrapproval of
propolled levee construction by the State Reclamation
Engineer and hia 6ucce66or6.

We find it difficult to underrtand how the Board can determine the
proprieq of a levee in a vacuum without giving consideration to the right6
of third partier.

Indeed, Sec. 11.452, Vernon’6 Texar Water Code, which i6 a part
of the rame chapter as Sec. 11,458,6pecifically require6 the Board to be
governed by equitable COn6ideratiOn6. We believe a con6ideration of the
rights of third parties is essential to any determination of whether a
particular project is equitable. We feel that, at the very least, third
parties whose propertie and right6 are to be affected by activitieo over

p. 1524

L
The Hon. Harry P. Burleigh
The Hon. Joe Rerweber page 7 (H-328)

which the Water Development Board has jurirdiction, should be given
notice of the proposal and a rea6onable opportunity to be heard.

The fact that the Water Code in Sec. 57.094, provides a procedure
for suit to be brought by any interested person to set aside a reclamation
plan approved by the Board, or that an injured party would have recourse
to a suit for damage, [Henderson County Levee Improvement Dist. No. 3
v. Williams, 19 S. W. 2d 197 (Tex. Civ. App., Austin 1929, rev’d on
other grounds, 36 S. W. 2d 204 (Tex. Comm. App. 1931)], would not, in
our opinion, satisfy the statutory responsibility exprerrsed in Sec. 11.452.

Other than to say, a6 we have, that intere6ted third parties should
be given notice and a reasonable opportunity to be heard, we cannot prescribe
more specifically the procedure to be followed in each case.

SUMMARY

The Water Development Board ha6 the duty to
approve or diclapprove plans for proposed levee6 to
be constructed by any person, corporation or levee
improvement district on, along or near any stream
that is subject to floods, freshet8 or overflows.
The Harris County Flood Control District is a
corporation within the 6tatute.

In passing upon such plans the rights of third
parties should be considered and such persons
should be given notice and a reasonable opportunity
to be heard.

ry truly yours,

Attorney General of Texas

p. 1525
The Hon. Harry P. Burleigh
The Hon. Joe Rerweber page 8 (H-328)

APPROVED:

LAqRY Fi YORK, F 6tA66i6hlt '

DAVID M. KENDALL, Chairman
Opinion Committee

p. 1526