. ! 

The Attorney General of Texas 

June 7, 1978 

JOHN L. HILL 

Attorney General 

Mr. Harvey Davis 

Executive Director 

Opinion No. H- 1177 

Texas Department of Water Resources 

1700 N. Congress Avenue 

Austin, Texas 

Re: Jurisdiction of Texas Water 

Commission regarding approval 

of plans for the construction of 

drainage facilities in Harris 

County Flood Control District. 

Dear Mr. Davis: 

You ask whether plans for a drainage project which have been approved 

by the Harris County Flood Control District must also be approved by the 

Texas Water Commission pursuant to section 16.238 of the Water Code. The 

drainage projects you inquire about are to be constructed by entities other 

than the Harris County Flood Control District. 

Section 16.238 of the Water Code provides in part: 

(a) No person, corporation, or levee improvement 

district may construct, attempt to construct, cause to 

be constructed, maintain, or cause to be maintained 

any levee or other such improvement on, along, or near 

any stream of this state that is subject to floods, 

freshets, or overflows so as to control, regulate, or 

otherwise change the floodwater of the stream without 

first obtaining approval of the plans by the commission. 

In Attorney General Opinion H-328 (1974) we considered whether this 

provision applied to the construction of lateral drainage facilities. We stated 

as follows: 

Only those levees or improvements need be approved 

which are constructed, or maintained on, along or near 

one of the described streams ‘so as to control, 

regulate, or otherwise change the flood water of the 

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Mr. Harvey Davis - Page 2 (H-1177) 

stream.’ Whether . . . this requirement extends to the 

construction or improvement of . . . lateral drainage 

facilities depends on the facts in a given situation, and 

resolution of this question should at least initially be made 

by the [Water Development] Board subject to judicial 

review. Security State Bank of San Juan v. State, 169 S.W.2d 

554 (Tex. Civ. App. - Austin 1943, err. ref’d., w.o.m.) 

Attorney General Opinion H-328 (1974). We concluded that the plans for lateral 

drainage facilities should be submitted to the Board for its determination of the 

relevant fact questions. 

In Attorney General Opinion H-328 we also determined that the Harris 

County Flood Control District was subject to the requirements of section 16.238. 

The Legislature subsequently enacted the following amendment to the statute 

creating the Harris County Flood Control District: 

3A. Projects proposed to be constructed by the Harris 

County Flood Control District, other than levees and 

structures related to levees, shall be under the control of 

the Commissioners Court acting as the governing board for 

the District. The findings of the Commissioners Court as to 

the plan of work, the necessity, the location, and the type of 

improvement of a project covered by this section shall he 

final and not subject to review. 

Acts 1975, 64th Leg., ch. 593, at 1877. We considered this amendment in Attorney 

General Opinion H-915 (1976) and determined that the Harris County Flood Control 

District was no longer required to submit its plans for projects other than levees 

and structures relating to levees to the Water Development Board. 

We believe the language of section 3A is clear. It applies only to projects “to 

be constructed by the Harris County Flood Control District” and not to projects to 

be constructed in Harris County by other persons or corporations. We do not 

believe the District’s approval of another entity’s drainage project converts it into 

a project “to be constructed by the . . . District” or otherwise exempts it from the 

requirements of section 16.238. The plans for such a project must also be submitted 

to the Department of Water Resources for an initial determination as to whether 

the construction will “control, regulate, or otherwise change the floodwater of the 

stream” and thus be subject to section 16.238. 

SUMMARY 

A drainage project to be constructed by an entity other than 

the Harris County Flood Control District is not exempted 

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Mr. Harvey Davis - Page3 (H-1177) 

from section 16.238 of the Water Code merely because the 

plans have been approved by the District. 

Very truly yours, 

Attorney General of Texas 

APPROVED: 

DAVID M. KENDALL, First Assistant 

C. ROBERT HEATH, Chairman 

Opinion Committee 

jsn 

p. 4756