253
OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
OROVER
SELLERS
ATIORWEY
GCNERAL
Hon. Jos. B. Dart
County Attorney
Kansndall
County
Boere, Texas
Dear Sir: Opinion No. O-7486
&I: (1) If a County commissioner~~
Court in faot 98 an order
the construction axii
nanoe thereof?
oontraot between the %m-
ners* Court and an indivi-
whereby the Court oontraota
to ekppendpubllo funds for ao-
qulsltionand maintenance of a
Utah for benefit of a private
individualto prevent washing of
property, such a contraotwithin
the scope of what c:ouldbe termed
county business?
“A man by the name of H. R. Remsen owns-a/small
tractor land lying partly in Kendall County and partly
in the adjoining Kerr County, Hera this property lies
there 1s a natural overflow during heavy rains $nz ;tk
property was subject to disastrouswash outs.
missioners of Kendall and Kerr Counties got togetherand
Hon. Jos. B. Dart - Page 2
constructeda drainage
_.. . ditch aoross
-. .Mr. Remsencs place.
At times this ditch was wol%ed by t&a two oommlssioners
in whose precin ts it lies. Finally, in 1924, %.
Remsen prevaile8 on the Commissioners'Court of Kendall
County to purohase this ditoh fran him as he wanted to
bind the county to keep it in conditionto prevent fm-
ther erosion of his land.
"The deed was made out to 'J,A. Phillip, County
Ju2ie;? Randall County, 'I'exas, and his 'successorsin
Judge Philllp is now dead, but our present
County Judge, B. H. Balser, was then one of the county
commissioners not, however of the preoinotwhere this
ditch lies, 'fheoonsiderationgiven in the deed was
we7.12. After the description in the deed the following
proviso was made: *It is expressly understoodthat the
strip of land herein oonveyed %a to be used by the
County for a ditoh to take care of flood water now over-
flowing the Comfort-Kerrvillehighway and the County
agrees and binds Itself to forever keep the ditch fran
oaving in and doing damage to grantors'property.'
*The ditch has not been taken oare of for acme
_ years and the cave-in ad danmge antioipated in the deed
is taking plaoe to the extent that Mr. Remsam has threaten-
ed suit against the County for damagea Sotifailure to keep
its oontraot as worded in thedesd.
"There is no entry in the Commissioners'Court
minutes authorizingJudge Phillip to purchase this pro-
perty and no authorizationto entm into this maintenance
agreement. There is, however, among the blanket approvals
of claims filed one in which the was authorized to
pay the claim of H.R. Remsen for but no explana-
tion of what the payment was for. his approval entry
was made Feb. 11th. 1924, and the deed was dated and filed
with the County Clerk on the same day.
Wr. Gus H. Lindner, who was then commissionerof
Precinct Four, where the ditch is located, says that the
matter was consideredby the Commissioners1Court and
i&at the County Judge was authorized to purchase the land
and make the contract, but Judge Palser has no~reoolleotion
of this.
255
Hon. JOS. B. Dart - Page 3
"Art. 2349, Civil Statutes, provides that 'the
clerk shall also record all authorized proceedingsof the
court between terms; and such record be read ati signed on
;htedfiSstday of the term next after suth proceedingsoo-
.
"Art. 3, Section. 52 of the Constitutionprovides that
'The Legislature shall have no power to authorize any county,
City, town or other political corporationor subdivision a?
of the State to lend its credit or to grant public money or
thing of value in aid of, or-to any individual,etc.'
'FbLhmwingArt. 2349 in v,A. Statutes there are several
quotationsto the effect that a failure to enter the order in
the minutes did not make the order void but same may be proved
by parol testimony.
"If it is correct that the order need not be entered of
record and can be proven by par01 evideneelthen the question
arises: was the ,ordermade by the CommisslonerstCourt one
which was authorized by the Con&itutionand the Statutes.
The contract to vizpend#ablio funds for aaqiuisitionand main-
tenanoe of s;,ditch for benefit of a private individualto
prevent washing of property is clearly not one within the
soope of what could be termed county or public business.
*It will be notioed that the latter part of the m&n-
tenanoe agreement states that the land therein oonveyed is
to be used by the County to take care of flood water now
overflowingthe Comfort-KerrvilleHighway, In 1924 the
Comfort-KerrvilleRighway was an ordinary county road, and
as such the County Comiss%oners * Court had the authority
to apportion the ,Roaaand Bridge Fund among the differe@
commissionersfor the 'purposeof maintainingand keeping the
county road and to give them suoh protectionas needed in
cases of overflowing. If the purpose of this deed end oon-
tract was to protect the roaa from ovdrflow and washouts
then it would be within the authamity of the county to
purchase suoh land ss was necessary to prevent these-over-
flows ati maintain thereon a drainage ditch and to pay for
same out of the Road and Bridge Fund,
"I hope I have not enoroaohed on your patience too muoh,
ard would greatly appreciate it if you w0uia give me your
opinion as to the correctnessof my 00n01uSi0n8~"
,256
Honorable Jos. B. Dart - Page 4
We have, we hope, in the interest of clarity, formulated the
four legal questions hereinbeforecaptionedand believe our answers
thereto solve the legal problem8 confrontingyou in the given eitua-
tion.
We answer question Number One in the negative and cite the
following oases in support thereof and quote from the syllabi of such
canes to show the Courtls holding. .%ommissioners*Court's order need
not be irpreadof record on minutes to be valid.' Brooks v. Frio
County, Civ. App., 28 S. W.,(2) 1107. "While the statute (Art. 2349,
V.A.C.S.) provides that record shall be.made of proceedingsof Court,
the fact that no order appears upon &utes of Court does,,notauthorize
holding that election was void for want of proper order. Ewing vs.
Duncan, 81 Tex. 230, 16 3. W. 1100. "Order of Commissioners1Court L
that has been acted upon by parties for several years is not void be-
cause not entered u on minutes of Baid court." Waggoner vs. Wise
County, Civ. App., fi
3 S. W. 836.
The provisions of Article 2349, R.C.S., referred to in your
letter are directory and not mandatory. Landa va. State, Clv. App.,
131 S. W. (2) 321. In this connection,we refer you to Gordon vs.
Denton County, Clv. App., )8 S. W. 737, holding that "Where there is
sufficientevidence denying that order was made by ~ommissioner18
Court, isaue should be submitted to jurg to deoide. This ffordon
vs. D8ntoq County Case aleo holds that the burden of proving that an
order was passed by the Co~issioners I Court rests upon a plaintiff
olalmin rights thereunder. It is elementary that if the commis-
sionerseiCourt minutes fail.to refleot an order passed by such Court
the same may be amended by a motion of some one or more of the Com-
missioners to show Such order.
We answer question Number Two in the affirmativeand.cite
Brook8 vs. Frio county, supra, holding that "CommissimerslCourt's
order need not be spread of record on minutes to b; valid, but, if
properly passed, MAY BE PROVED BY PAROL TESTIMONY.
We answer your question Number Three in the affirmativeand
cite in support thereof the case of El Paso County va. Elam, 106 S. W.
(2) 393, holding ?f.hematter of oonstruotingdrainage ditches in the
county is, UNQUESTIONABLYCOUNTY BUSINESS, and the Commissioners*
Court is the only active governing body of the county with a juris-
diction bbnfdraed tiponritby law to do that work, and should be given
a broad and liberal constructionso as not to defeat the purpose of
the law." The facts in El Paso County vs. Elam, supra, are almost
identical to your given situation with reference to the construction
of the ditch and we quote from said opinion, viz:
nThe constructionof the ditch was not in connection
with a public road, but, as found by the jury, was constructed
Honorable Jos. B. Dart - Page 5 257
to protect the public roads from overflow,
- In the vicinity
_-. _ -
of Fabens, and did in fact protect sucn pUbI roam from
overflow. We think under the facts shown, the constrUctIon
of the ditch was an lawful and commendableact on the part
of the Commissioners Court and that the County may be made
ltile for damages . . ."
Such case was reversed on a point not material to your inquiries.
We further refer you to the Texas Constitution,Article I,
Section 17, which provides as follows:
"No person's property shall be taken, damaged or destroyed~
for.or applied to public use without adequate compensation
being made, Unless by the consent of such person; and, when'
taken, except for the use of the State, such compensation
shall be first made, or secured by a deposit of money; and
no Irrevocableor uncontrollablegrant of special privileges
or immunities,shall be made; but all privilegesand fran-
chises granted by the Legislature,or created under its au-
thority shall be subjectto the control thereof."
We further refer you to the case of Nussbaum'vs.Bell County,
Texas, Sup. Ct. Texas, 76 S. W. 430-432, holding, to quote from the
case, "understatutory provisions,property may be ,&ken or ds8iagsd
by counties for public use in establishingand maintainingpublic
roads, 'andthe authority thus given EMBEACES TEE MAKING OF DITCEES
AND DRAINS", and such case cites on such propositionthe aases of
Eamllton County vs. Garrett, 62 Tex. 602; Wooldridge vs+ Eastland
County, 70 Tex. 680j Watkins vs..WalkerCounty, 18 Tex. 558.
We answer question Number Four in the negative. Clearly, if
a ditch is constructedfor benefit of a nrivete lndlvidual,thenit
would not be such an act as would come within the scope of county
busbess and the county could not lawfUlly pay damages-resulting '
therefrom to a landowner and could net legally contract for the
constructionand maintenance thereof, because of the constitutional
prohibitionagainst same by virtue of Article III, Sec. 52, of the
Texas Constitution quoted in your lhtter.
You will Understand, it is not the contract clause in the
deed that creates the power or necessarily Imposes the duty upon the
county to maintain the ditch, It is the general law as hereinabove
set out. If at this time, or at any time in the future, the Com-
missioners'Court finds that the upkeep'of ditch is necessary ln
Honorable Jos. B. Dart - Page 6
the maintenance of the road to avert injury to it or to adjacent
property, it bas the power and It would be under the duty to do so.
Trusting this satisfactorilyanswers your Inquiries,we
are
Yours very truly
ATTORNEY GENERAL OF TEXAS
(Signed)Joe McCasland
APPROVED DEC 17 1946 BY
Joe McCasland
(Signed) Grover Sellers Assistant
ATTORNEY GENERAL OF TEXAS
JMc:djm
APPROVED
OPINION COMMITTEE
BY OS
CHAIRMAN