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 %mners* Court and an indiviwhereby the Court oontraota 

to ekppend publlo funds for aoqulsltion and maintenance of a 

Utah for benefit of a private 

individual to prevent washing of 

property, such a contraot within 

the scope of what c:ould be 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 disastrous wash outs. 

missioners of Kendall and Kerr Counties got together and 
Hon. Jos. B. Dart - Page 2 

constructed a 

At times this 

drainage ditch aoross Mr. Remsencs place. _.. . -. . ditch was wol%ed by t&a two oommlssioners 

in whose precin ts it lies. Finally, in 1924, %. 

Remsen prevaile 8 on the Commissioners' Court of Kendall 

County to purohase this ditoh fran him as he wanted to 

bind the county to keep it in condition to prevent fmther erosion of his land. 

"The deed was made out to 'J,A. Phillip, County 

Ju2ie;? Randall County, 'I'exas, and his 'successors in 

Judge Philllp is now dead, but our present 

County Judge, B. H. Balser, was then one of the county 

commissioners 

ditch lies, 

not, however of the preoinot where this 

'fhe oonsideration given in the deed was 

we7.12. After the description in the deed the following 

proviso was made: *It is expressly understood that the 

strip of land herein oonveyed %a to be used by the 

County for a ditoh to take care of flood water now overflowing the Comfort-Kerrville highway 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 threatened suit against the County for damagea Soti failure to keep 

its oontraot as worded in thedesd. 

"There is no entry in the Commissioners' Court 

minutes authorizing Judge Phillip to purchase this property and no authorization to 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 explanation 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 commissioner of 

Precinct Four, where the ditch is located, says that the 

matter was considered by the Commissioners1 Court 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 proceedings of the 

court between terms; and such record be read ati signed on 

;htedfiSst day of the term next after suth proceedings oo- 

. 

"Art. 3, Section. 52 of the Constitution provides that 

'The Legislature shall have no power to authorize any county, 

City, town or other political corporation or 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.' 

'FbLhmwing Art. 2349 in v,A. Statutes there are several 

quotations to 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 evideneel then the question 

arises: was the ,order made by the Commisslonerst Court one 

which was authorized by the Con&itution and the Statutes. 

The contract to vizpend #ablio funds for aaqiuisition and maintenanoe of s;, ditch for benefit of a private individual to 

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&ntenanoe agreement states that the land therein oonveyed is 

to be used by the County to take care of flood water now 

overflowing the Comfort-Kerrville Highway, In 1924 the 

Comfort-Kerrville Righway was an ordinary county road, and 

as such the County Comiss%oners * Court had the authority 

to apportion the ,Roaa and Bridge Fund among the differe@ 

commissioners for the 'purpose of maintaining and keeping the 

county road and to give them suoh protection as needed in 

cases of overflowing. If the purpose of this deed end oontract 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-overflows 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 correctness of my 00n01uSi0n8~" 
,256 

Honorable Jos. B. Dart - Page 4 

We have, we hope, in the interest of clarity, formulated the 

four legal questions hereinbefore captioned and believe our answers 

thereto solve the legal problem8 confronting you in the given eituation. 

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 irpread of 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 proceedings of Court, 

the fact that no order appears upon &utes of Court does,,not authorize 

holding that election was void for want of proper order. Ewing vs. 

Duncan, 81 Tex. 230, 16 3. W. 1100. "Order of Commissioners1 Court L 

that has been acted upon by parties for several years is not void because not entered u on minutes of Baid court." Waggoner vs. Wise 

County, Civ. App., fi 3S. W. 836. 

The provisions of Article 2349, R.C.S., referred to in your 

letter are directory and not mandatory. 

131 S. W. (2) 321. 

Landa va. State, Clv. App., 

In this connection, we refer you to Gordon vs. 

Denton County, Clv. App., )8 S. W. 737, holding that "Where there is 

sufficient evidence 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 

ei 

rights thereunder. It is elementary that if the commissioners Court 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 Commissioners to show Such order. 

We answer question Number Two in the affirmative and.cite 

Brook8 vs. Frio county, supra, holding that "Commissimersl Court'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 affirmative and 

cite in support thereof the case of El Paso County va. Elam, 106 S. W. 

(2) 393, holding ?f.he matter of oonstruoting drainage ditches in the 

county is, UNQUESTIONABLY COUNTY BUSINESS, and the Commissioners* 

Court is the only active governing body of the county with a jurisdiction bbnfdraed tiponrit by law to do that work, and should be given 

a broad and liberal construction so 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 construction of 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 

from overflow, In the vicinity - _-. _ - to protect the public roads 

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 commendable act 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 Irrevocable or uncontrollable grant of special privileges 

or immunities, shall be made; but all privileges and franchises granted by the Legislature, or created under its authority shall be subject to 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 establishing and maintaining public 

roads, 'and the authority thus given EMBEACES TEE MAKING OF DITCEES 

AND DRAINS", and such case cites on such proposition the aases of 

Eamllton County vs. Garrett, 62 Tex. 602; Wooldridge vs+ Eastland 

County, 70 Tex. 680j Watkins vs..Walker County, 18 Tex. 558. 

We answer question Number Four in the negative. Clearly, if 

a ditch is constructed for benefit of a nrivete lndlvidual,then it 

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 

construction and maintenance thereof, because of the constitutional 

prohibition against 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 Commissioners' 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 satisfactorily answers your Inquiries, we 

are 

Yours very truly 

ATTORNEY GENERAL OF TEXAS 

APPROVED DEC 17 1946 

(Signed) Grover Sellers 

ATTORNEY GENERAL OF TEXAS 

(Signed) Joe McCasland 

BY 

Joe McCasland 

Assistant 

JMc:djm 

APPROVED 

OPINION COMMITTEE 

BY OS 

CHAIRMAN