(concurring).
I agree with the statement made by the appellant in the County’s brief that: “Any determination of whether the elevation of Lagarto Road along its present route is practical, feasible or necessary will inevitably involve determinations as to various facts which are genuinely in dispute, as will *460any determination as to whether the action of the Commissioners’ Court was a proper exercise of its discretionary authority.”
The statute in question (Art. 7585 V.A. C.S.) is clear. The water district may construct a reservoir over the ground where a public road exists. It is likewise clear that “ * * * it shall be the duty of the commissioners’ court to change said road and to remove such bridge * * * ”, provided further, that the expense of making such change shall be paid by the District. This statute contemplates placing the responsibility of removing the bridge upon the County, determining where the feasible and practical change of the road shall be made, and requiring the District to pay for the change. The County’s determination of where “the change” in the road is to be made, should not of course be such a change as would interfere with the operations of the District’s reservoir or dam.
The County, through the Commissioners Court, entered an order or resolution directing a specific change in the road. Before the change had been actually made, the County sought a declaratory judgment to determine the validity of their action and the liability for such action on the District. If the trial court has jurisdiction of this case at all, the burden of proof should be on the County. 1 McDonald Texas Civil Practice, § 207, p. 145. For “it is plain that where the burden of proof lies may be decisive of the outcome.” Speiser v. Randall, 357 U.S. 513, 525, 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460. The present action should test whether or not the County acted arbitrarily or capriciously and whether it abused its discretion in determining the location of the future road.
If the trial court has jurisdiction of this case, then upon proof and a favorable finding by the trial court of the validity of County’s order or resolution, the County may then be entitled to a declaratory judgment against the District for the expense of the proposed change. Had the County already made “such change” as contemplated by the statute (7585 V.A.C.S.) and was thereafter seeking reimbursement from the District for the expense of making such change, then, the District, if dissatisfied, would be relegated to a collateral attack on the order or resolution of the County.
The County is not limited under this statute to a change of the road either horizontally or vertically so long as it meets the test set forth by our courts: that its decision, if lawfully made, was not tainted with fraud or collusion; and/or that the Commissioners Court’s decision was not so grossly unreasonable or capricious or arbitrary as to amount to fraud as a matter of law. The law vests in the Commissioners Court a duty to act with discretion in this case; its action is not ministerial in nature. 157 Tex.Jur.2d § 47, p. 275-276.
It has been said by appellant County that the County cannot dictate to the District where to locate the dam or what land is to be inundated. Therefore, the District cannot dictate to the County where to change or locate the road. It must be observed, however, that the District pays for the dam and the road. Where the County has the discretion in locating the road, and at the same time is not required to pay for it, its action must be scrutinized. It is therefore, clear that the County has an obligation to act with reason and discretion, considering not only its obligation and duty to the inhabitants that it governs, but also to consider with such action the people, taxpayers and users within the jurisdiction of the district who are required to pay the cost. The District is a separate political subdivision of our state, created by the sovereign will of the state, and standing upon the same footing as the County. Willacy County Water Control and Improvement District No. 1 v. Abendroth, 142 Tex. 320, 177 S.W.2d 936, 937 (Sup.Ct.1944). The statute (Art. 7585 V.A.C.S.) does not contemplate the giving of a “blank check” to the County.
*461The trial court erred in granting the summary judgment because of the fact issues needed to be determined. Based on the above views, I agree that the motion for rehearing should be overruled.