### 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: OpinionNo. 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 aoqulsltionand maintenanceof a Utah for benefit of a private individualto 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 adjoiningKerr County, Hera this property lies there 1s a natural overflowduring heavy rains $nz ;tk propertywas subjectto disastrous wash outs. missionersof Kendall and Kerr Countiesgot togetherandHon. Jos. B. Dart - Page 2

constructeda At times this drainageditch aorossMr. Remsencsplace.

_.. . -. . 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 conditionto 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 preoinotwhere this

'fhe oonsideration

given in the deed was we7.12. After the descriptionin the deed the following provisowas made: *It is expresslyunderstoodthat the strip of land herein oonveyed%a to be used by the County for a ditoh to take care of floodwater now overflowing the Comfort-Kerrville highway and the County agrees and binds Itself to foreverkeep 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-inad danmge antioipatedin the deed is taking plaoe to the extent that Mr. Remsam has threatened suit against the County for damageaSoti failure to keep its oontraotas worded in thedesd. "There is no entry in the Commissioners' Court minutes authorizingJudge Phillip to purchase this property and no authorizationto entm into this maintenance agreement. There is, however,among the blanket approvals of claims filed one in which the was authorizedto pay the claim of H.R. Remsen for but no explanation of what the paymentwas 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 consideredby the Commissioners1 Courtand i&at the County Judge was authorizedto 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,providesthat 'the clerk shallalso record all authorizedproceedingsof the court between terms; and such record be read ati signed on ;htedfiSst

day of the term next after suth proceedingsoo-

. "Art. 3, Section. 52 of the Constitution providesthat 'TheLegislatureshall have no power to authorizeany county, City, town or other political corporation or subdivisiona? 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. Statutesthere are several quotationsto the effect that a failureto 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 evideneelthen the question arises: was the ,order made by the Commisslonerst Court one which was authorizedby the Con&itution and the Statutes. The contractto vizpend #ablio funds for aaqiuisition and maintenanoe of s;,

ditch for benefit of a private individualto preventwashing of property is clearlynot one within the soope of what could be termed county or public business. *It will be notioed that the latter part of the m&ntenanoeagreement states that the land therein oonveyed is to be used by the County to take care of floodwater now overflowingthe Comfort-Kerrville Highway, In 1924 the Comfort-Kerrville

Righwaywas 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 maintainingand keeping the countyroad and to give them suoh protectionas needed in cases of overflowing. If the purpose of this deed end oontractwas to protect the roaa from ovdrflowand washouts then it would be within the authamityof the county to purchase suoh land ss was necessaryto prevent these-overflows ati maintain thereon a drainageditch and to pay for same out of the Road and Bridge Fund,
"I hope I have not enoroaohedon your patience too muoh, ard would greatly appreciate it if you w0uia give me your opinionas to the correctnessof my 00n01uSi0n8~"

### ,256

HonorableJos. B. Dart - Page 4

We have, we hope, in the interestof clarity, formulatedthe four legal questionshereinbeforecaptionedand believe our answers thereto solve the legal problem8 confronting you in the given eituation.
We answer questionNumber One in the negativeand cite the followingoases in support thereofand quote from the syllabi of such canes to show the Courtlsholding. .%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 proceedingsof Court, the fact that no order appears upon &utes of Court does,,not authorize holding that electionwas 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 severalyears is not void because not enteredu on minutes of Baid court." Waggoner vs. Wise County, Civ. App., fi 3 S. W. 836. The provisionsof Article 2349, R.C.S., referred to in your letter are directoryand 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 sufficientevidencedenying 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 elementarythat if the commissioners Court minutes fail.to refleot an order passedby such Court the same may be amended by a motion of some one or more of the Commissioners to show Such order.

We answer questionNumber 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 properlypassed,MAY BE PROVED BY PAROL TESTIMONY.

We answer your questionNumber Three in the affirmativeand cite in support thereof the case of El Paso County va. Elam, 106 S. W. (2) 393, holding ?f.he matter of oonstruoting drainageditches in the county is, UNQUESTIONABLY COUNTY BUSINESS,and the Commissioners* Court is the only active governingbody of the countywith a jurisdictionbbnfdraedtiponrit 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 identicalto your given situationwith reference to the construction of the ditch and we quote from said opinion,viz:

nThe constructionof the ditch was not in connection with a public road, but, as found by the jury, was constructedHonorableJos. 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 providesas follows:

"No person'sproperty shall be taken,damaged or destroyed~ for.or applied to public use withoutadequate 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 securedby a deposit of money; and no Irrevocableor uncontrollable grant of specialprivileges or immunities,shall be made; but all privilegesand franchises granted by the Legislature,or createdunder 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,propertymay be ,&ken or ds8iagsd by counties for public use in establishing and maintainingpublic roads, 'andthe authority thus given EMBEACES TEE MAKING OF DITCEES AND DRAINS",and such case cites on such propositionthe aases of EamlltonCounty vs. Garrett, 62 Tex. 602; Wooldridgevs+ Eastland County, 70 Tex. 680j Watkins vs..Walker County, 18 Tex. 558.
We answer questionNumber Four in the negative. Clearly, if a ditch is constructedfor 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 lawfUllypay damages-resulting ' therefromto a landownerand could net legally contract for the construction

and maintenancethereof,because of the constitutional prohibitionagainst same by virtue of Article III, Sec. 52, of the Texas Constitutionquoted in your lhtter.

You will Understand,it is not the contractclause in the deed that creates the power or necessarilyImposes 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'ofditch is necessary lnHonorableJos. B. Dart - Page 6

the maintenanceof 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 ATTORNEYGENERAL OF TEXAS

APPROVEDDEC 17 1946 (Signed)Grover Sellers
ATTORNEYGENERAL OF TEXAS (Signed)Joe McCasland BY Joe McCasland

Assistant

JMc:djm

APPROVED OPINION COMMITTEE
BY OS CHAIRMAN