Untitled Texas Attorney General Opinion ( 1978 )

The Attorney General of Texas
December 12, 1978
JOHN L. HILL
Attorney General
Honorable Joe Resweber Opinion No. H-12 78
Harris County Attorney
1001 Preston Re: May Harris County require
Houston, Texas 77002 storm sewers to be designed with
capacity to drain county road
used as outlet?
Dear Mr. Resweber:
You ask the following question:
May Harris County require parties constructing
storm sewers, and using County roads as outlets to
outfall systems, to design the storm sewers with
enough capacity to drain the County road right of way
and the adjacent areas fronting on such County roads.
You state that county roads have been used as an outlet for storm sewers
draining developments which usually are installed by water districts. This
practice has on occasion allowed two storm sewers to be constructed within a
given segment of road right of way without regard to roadside ditch drainage
and has thereby restricted space available for the installation of storm sewers
funded by the county.
Your question involves many possible fact situations and is not subject
to comprehensive resolution in the opinion process. To the extent that you
inquire about storm sewers built by water districts within the areal confines
of Harris County roads, we believe your question is answered by Attorney
General Opinion M-56 (1967). That opinion determined that the commis-
sioners court may require that plans and specifications be submitted to the
County Engineer by a Fresh Water Supply District for his approval prior to
the construction of storm sewers within the areal confines of Harris County
roads. See also Attorney General Opinion M-56A (1967).
It appears, however, that it is the county’s duty to provide drainage for
county roads it constructs. V.T.C.S. art. 6730; Harris County Road Law, Acts
1913, 33rd Leg., Special Laws, ch. 17, SS 1, 2, 3, 12, 16, 21, 29, at 64-70. See
Willacy County v. Oakes, 239 S.W.2d 692 (Tex. Civ. App. F San Antonio l%,
p. 5053
Honorable Joe Resweber - Page 2 (R-1278)
writ ref’d) (county has no right to cause drainage to flow onto adjacent landowner’s
land). A landowner may not, however, divert the natural flow of surface waters so
that they threaten county roads. Soule v. Galveston County, 246 S.W.2d 491 (Tex.
Civ. ADD. - Galveston 1951. writ ref’d). The countv is entitled to a mandatorv
injunc& to prevent such diversion. ~.h& See al&rittian v. Hale County, 297
S.W.2d 721 (Tex. Civ. App. - Amarillo 1957, no writ). Whether these principles
apply in a particular case depends on facts relating to the natural flow of water.
We note that article 6789, V.T.C.S., permits the owners of lands abutting on or
within one mile of a county road or adjacent ditch to connect lateral drainage
ditches with the countv ditch. However. this Drovision aoolies onlv in counties
which have adopted a Voluntary assessment drainage systim pursuant to articles
67716789, V.T.C.S. Messer v. County of Refugio, 435 S.W.2d 220 (Tex. Civ. App. -
Corpus Christi 1968, writ ref’d n.r.e.).
Where a private individual owns the fee interest in and under a county road,
he mav use the subsurface in a manner that does not imDair the DUbliC easement.
Hill &m,~ Inc. v. Hill County, 436 S.W.2d 320 (Tex. 1969); City of Fort Worth v.
;;;i”,“s eHotel Company, 380 S.W.2d 60 (Tex. Civ. App. - Fort Worth 1964, writ
, . . . ). A stranger to title in the road may not encroach on the easement over
the objection of the public agency vested with- jurisdiction in the road. Hill Farm,
Inc. v. Hill County, supra.
The Harris County Road Law authorizes the commissioners court to grant
easements over, along, or across any public road or highway, subject to reasonable
conditions or restrictions prescribed by the court. Sec. 7A, Acts 1947, 50th Leg.,
ch. 205, S 8, at 361. See- enerall county of Harris v. Tennessee Products Pipe
Line Company, 332 S.W.2d +. 777 Tex. Ctv. App. - Houston 1960, no writ) (Harris
Countv could enforce reasonable rexulations as to construction of pipelines crossing
roads but could not deny right to &eline easement given by statute). Cases may
arise where persons seek a drainage easement on or along a county road to which
they are not otherwise entitled. Depending on the facts of the situation, it may be
reasonable for the county to impose design requirements on the proposed storm
sewer as a condition to the grant of the drainage easement.
Finally, Harris County may have some power to regulate the use of land,
structures, and other development so as to control flood damage. Article 1581e-1,
V.T.C.S., authorizes any county bordering on the Gulf of Mexico or the tidewater
limits thereof to enact regulations, which may include drainage specifications, in
“flood, or rising water prone, areas.” Sets. 2, 4; see Attorney General Opinion
h-1624 (1977). See also Water Code SS 16.3ll - 16.3wAttorney General Opinions
H-1102, H-1011 (munty authority to take actions to comply with National
Flood Insurance Program established pursuant to 42 U.S.C. SS 4001-4127).
SUMMARY
Harris County may require prior submission of plans and
specifications for storm sewers to be built by water districts
p. 5054
Honorable Joe Resweber - Page 3 (H-1278)
within the areal confines of Harris County roads. Whether
the county may impose other requirements on the
construction of storm sewers using county roads as outlets
depends on facts relating to the natural flow of water and
the ownership of the subsurface of the road. In particular
cases, the county may have authority under the Harris
County Road Law to impose design requirements as a
condition to the grant of a drainage easement. It may also
have some authority pursuant to article 1581e-1 to enact
regulations or drainage specifications for flood prone or
rising water prone areas.
APPROVED: v
DAVID M. KENDALL, First Assistan
‘&U
C. ROBERT HEATH, Chairman
Opinion Committee
P. 5055