The Attorney General of Texas
December 18, 1981
MARK WHITE
Attorney General
Supreme Court Building
Honorable Mike Driscoll Opinion No.MW-412
P. 0. Box 12546 Harris County Attorney
Austin. TX. 76711 1001 Preston, Suite 634 Re: Authority of county flood
5121475-2501 Houston, Texas 77002 control district to lengthen
Telex 910/674-1367 private bridge crossing
Telecopier 5121475-0266
channel widened by district
1607 Main St., Suite 1400 Dear Mr. Driscoll:
Dallas, TX. 75201
2141742-6944
You have requested our opinion regarding whether the Harris
County Flood Control District is required to expend funds to lengthen
4624 Alberta Ave., Suite 160 a private bridge which crosses a channel widened by the district. You
El Paso, TX. 79905 first ask us to assume that the district has previously approved the
915l533-3464 construction of the bridge across its easement and that the district
now proposes to widen the channel.
1220 Dallas Ave., Suite 202
Houston. TX. 77002 The Harris County Flood Control District, a district organized
713/65M)666 under article 16, section 59 of the Texas Constitution, was created by
special act of the legislature in 1937.Acts 1937, 45th Leg., ch. 360.
at 714. Section 50.052 of the Water Code is applicable to such
606 Broadway, Suite 312
Lubbock, TX. 79401
districts. It provides:
6061747.5236
(a) If any district or authority organized
under the provisions of Article III, Section 52,
4309 N. Tenth, Suite S
or Article XVI, section 59, of the Texas
McAllen, TX. 76501
51216624547
constitution, in the exercise of the power of
eminent domain, the police power, or any other
power requires the relocation, raising, lowering,
200 Main Plaza. Suite 400 rerouting, or change in grade or alteration in the
San Antonio, TX. 76205
construction of any highway, railroad, electric
512l2254191
transmission, telegraph, or telephone lines,
conduits, poles, properties, facilities, or
An Equal Opportunity/ pipelines, the relocation, raising, lowering,
Affirmative Action Employer rerouting, or change in grade or alteration of
construction shall be done at the sole expense of
the district or authority.
(b) 'Sole expense' means the actual cost of
the relocation, raising, lowering, rerouting, or
change in grade or alteration of construction and
providing comparable replacement without enhancing
p. 1405
Honorable Mike Driscoll - Page 2 (MW-412)
the facilities after deducting from it the net
salvage value derived from the old facility.
(c) This section shall not be applicable to
those projects under construction or financed or
for which bonds have been voted and approved by
the acts of any district on the effective date of
this Act, unless the provisions hereinabove are
contained in the acts of the district authorizing
said construction or financing.
In our opinion, if the district widens the channel so as to
render the bridge unusable, the district may reasonably be said to
have acted tn require the "relocation... rerouting or... alteration in
construction of... properties." In such instance, section 50.052
directs that "relocation... rerouting... or alteration of construction
shall be done at the sole expense of the district...." The statute
does not make any distinction based upon whether the "property" was
originally constructed with the district's approval. We believe that
it requires the district to bear the sole expense of lengthening the
bridge without regard to whether the district has previously approved
its construction.
It has been suggested that several provisions of the Texas
Constitution prohibit a district from expending its funds to lengthen
a private bridge crossing its channel. -See Tex. Const. art. III,
§§50, 51, 52, 55. In State V. City of Austin, 331 S.W.2d 737 (Tex.
1960), however, the Texas Supreme Court upheld the constitutionality
of article 6674w-4, V.T.C.S., which provided that relocation of
utility facilities necessitated by improvement of highways shall be
made at state expense. See also State v. City of Dallas, 319 S.W.2d
767 (Tex. Civ. App. - Austin 1958), aff'd, 331 S.W.2d 737 (Tex. 1960).
In our view, there is no significant distinction, for constitutional
purposes, between article 6674w-4 and section 50.052 of the Water
Code. Accordingly, we believe it is clear that the Texas Supreme
Court would uphold the constitutionality of section 50.052. Of
course, the statute may be unconstitutionally applied in particular
situations if the public purpose is not adequately served as indicated
by the court in State v. City of Austin, supra. See also Harris
County v. Dowlearn, 489 S.W.2d 140 (Tex. Civ. App. - Houston 114th
Dist.] 1972, writ ref'd n.r.e.).
SUMMARY
Section 50.052 of the Water Code requires the
Harris County Flood Control District tn lengthen a
private bridge crossing a channel which has been
widened by the district, without regard to whether
the district has previously approved the
p. 1406
Honorable Mike Driscoll - Page 3 (NW-412)
construction of the bridge. Section 50.052 of the
Water Code is not unconstitutional on its face.
very truly yours, f)
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Rick Gilpin
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Rick Gilpin
Jim Moellinger
Bruce Youngblood
p. 1407