Untitled Texas Attorney General Opinion ( 1981 )


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  •                                    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
    

Document Info

Docket Number: MW-412

Judges: Mark White

Filed Date: 7/2/1981

Precedential Status: Precedential

Modified Date: 2/18/2017