Honorable Jerrv 

County Attorney 

Sutton County 

Sonora, Texas 

N. Shurley Opinion No. 791 

Re: Does the Commissioners' 

Court of Sutton County 

have the power of eminent domain to condemn 

land for flood control 

easements where land is 

situated In an adjacent 

county and related questions. 

Dear Mr. Shurley: 

Your request for an opinion concerns several questions. 

The first que,stion is: 

"1. Does the Commissioners' Court of 

Sutton County have the power of eminent domain to condemn land for flood control 

easements if the land is situated in an adjacent county?" 

It is our understanding that a flood control project has 

been instituted in your county under the provisions of Article 

1581e, Vernon's Annotated Civil Statutes. Your letter to us 

stated that a portion of the area from which there is drainage 

into your county lies in an adjacent county and that your Commissioners' Court is the contracting body for that project. 

The pertinent sections of Article 1581e, Vernon's Annotated 

Civil Statutes follow: 

"Section 1. All counties In this State 

shall have the right of eminent domain to condemn and acquire real property and easements and 

right-of-ways over and through all public and 

private lands for the making and digging of 

canals, drains, levees and improvements in the 
Honorable Jerry N. Shurley, page 2 (w-791) 

county for flood control purposes and for drainage as related to flood control, and for providing necessary tlets for waters in such 

counties. No-appE:l from the finding and assessment of damages by the Special Commissioners 

appointed for that purpose shall suspend the work 

for which the land, right-of-way, easement, or 

other property is acquired. Where, in the judgment 

of the Commissioners' Court, the acquisition of 

the fee in the land is necessary, condemnation 

of the fee title may be had; provided, however, 

that the counties shall not have authority to 

condemn the fee of, as distinguished from an 

easement or right-of-way over, across or upon, 

any property lawfully used or occupied by any 

public utility, railroad, canal, levee or other 

person, concern, corporation or body politic devoting Its property to a public use. 

"Sec. 2. The proceedings with respect to 

condemning lands or Interests therein, or other 

property, for the uses above specified shall be 

controlled by the statutes regulating such proceedings by counties in other cases, as provided 

in Article 3264 Revised Statutes of Texas, 1925, 

et seq." (Emphisis supplied.) 

Article 3264 reads as follows: 

"Sec. 1. When real estate is desired for 

public use by the State or by a county, or a 

political subdivision of a county, or by a city 

or town, or by the United States Government, or 

by a corporation having the right of eminent 

domain, or by an irrigation district, water lmprovement district, or a water power control 

district created by authority of law, the party 

desiring to condemn the property after having 

failed to agree with the owner of the land on the 

amount of damages shall file a statement in 

writing with the county judge of the county In 

which the land or a part thereof is situated. It 

shall describe the land sought to be condemned. 

state the purpose for which-it is Intended to be 

used, the name of the owner, if known, and that 

the plaintiff and the owner have been unable to 

agree upon the value of the land or the damages. 

Where the land lies In two or more counties, in 

one of which the owner resides, the statement 
. _. 

Honorable Jerry N. Shurley, Page 3 (WW-7%) 

shall be filed in the county of the owner's 

residence." (emphasis supplied.) 

It appears to be quite clear that Article 1581e, 

Section 1, V.A.C.S. gives a county the right of eminent 

domain in all public and private lands for flood control 

purposes. me only possible language In that section which 

might be urged as limiting the right of eminent domain to 

land In the condemning counties, is "improvements in the 

county." However, a reading of the entire Act. shows that 

this phrase Is present for the sole purpose of restricting 

condemnation proceedings to those projects of benefit to 

the condemning county. 

In construing this Act, we are guided by the well-known 

rules of statutory construction. The court in Magnolia Petroleum Co. v. Walker (Sup.Ct. of Tex.) 83 S.W.2d 929, 934, stated: 

'No Inflexible rule can be announced for 

the construction of statutes. However, the 

dominant rule to be observed is to give effect 

to the Intention of the Legislature. Generally 

the intent and meaning is obtained primarily from 

the language of the statute. In arriving at 

the Intent and purpose of the law, it is proper 

to consider the history of the subject matter 

Involved, the end to be attained, the mischief 

to be remedied, and the purposes to be accomplished." 

Other jurisdictions concur with the Magnolia Petroleum 

Co. case, supra, in applying such a rule to the interpretation 

Tall statutes. It is generally accepted that the intent of 

the legislature is paramount in the interpretation of public 

grants of power just as It is paramount in the interpretation 

of all laws. Acheson v. Johnson, 147 Me. 275, 86 A.(2d) 628 

(1952); Valentine v. Lament, 20 NJ. Super. 454, 90 A.(2d) 

143 (195Z?]j State V. Rltschel, 220 Minn. 578, 20 N.W.2d 673, 

168 A;L.R. 274 (1945) Himonas v. Denver & R.G.W.R.Co., 

179 F.2d 171 (1949). ' 

Then in Popham v. Patterson, 121 Tex. 615, 51 S.W.28 

680, 683, the court stated: 

"In construing statutes it Is the duty 

of the court to ascertain the legislative intent, and, when such Intent is once arrived 

at, It should be given effect; in fact, such 
._ .- . 

Honorable Jerry N. Shurley, page 4 (WW-791) 

intent Is the law. In determining the legislative 

Intent, the court should not look alone to any 

one phrase, clause, or sentence of the ACtj and 

this Includes the caption, the body of the Act, 

and the emergency clause.” 

By applying these rules, we look first to the ca tion 

of Acts 1949, Regular Session, Ch. 407, p. 759, (Art. 15 i le 

V.A.C.S.). There the purpose is plainly said to be ". . . for 

making and digging canals, drains, 

flood control. . .' 

levees and improvements for 

It Is to be noted that there is no restrictive language In the caption. Now, what does flood control encompass? 

"Flooding rivers are no respecters of 

county lines. Suitable dam sites are determined by physical and topographical 

characteristics and not by arbitrarily fixed 

boundaries of political subdivisions. It Is 

possible that the construction of a dam at a 

particular site would be of no material or 

practical value to the county within which such 

site was located, yet such dam and the resultant 

impounding of waters might be of inestimable 

value to those living within counties nearer 

the mouth of the river. In view of these circumstances, it would seem unlikely that the 

Legislature would arbitrarily restrict the 

power of eminent domain to the one particular 

county In which the required land was located." 

Richardson v. Cameron County, 275 S.W.2d 709 

-(Tex.Civ.App., no writ history.) 

It seems uncontroverted that a county would be almost 

powerless to effect flood control if restricted to Its borders. 

Since the Legislature must have intended to promulgate a useful 

law, we cannot say that Sutton Countyls right of eminent domain 

is restricted to its borders. Next we look to Section 2 of 

Article 1581e V.A.C.S., which requires that the condemnation 

proceedings be controlled by the statutes regulating such proceedings for counties in other cases, as provided by Article 

3264 V.A.C.S. Article 3264 V.A.C.S., supra, clearly contains 

provisions for condemnation of land in other counties. Again, 

we cannot say that the Legislature did not intend for this 

procedural provision to be applicable. 

By inspecting the general scheme of le 

v. Texas (Commission of Appeals) 53 S.W.2d 774 -7 
Honorable Jerry N. Shurley, page ,5 (WW-791) 

flood control, we again see the Intent of the Legislature. 

Article 7880-3 V.A.C.S. provides: 

"Water Control and Improvement Districts 

may be organized under the, provisions of 

Section 59 of Article 16 of the Constitution 

for any one or more of the provisions therein 

provided as follows: 'Including the control, 

storing, preservation and distribution of 

its waters and flood waters. . O *I' 

This is essentially the same function required of counties by 

Article 1581e, V.A.C.S. Article 7880-125 V.A.C.S. provides that 

water districts may condemn "all lands . . . easements, rlghtsof way. . .n (emphasis suppliw for accomplishing the purposes 

of the Act which is the same type language used in Section 1 of 

Article 1581e V.A.C.S. It continues by interpreting this to 

mean that the districts may acquire land either within or beyond 

the boundaries of the condemning district. A fortiorl this 

indicates that the Legislature, in legislation of this kind, 

does not hold political boundaries to be limiting factors. Further, by enacting Article 7880-126(n) the Legislature affirmatively 

said that any county could "elect to proceed to condemnation 

under the provisions of, and in the manner established by . . ." 

the Water District Act. Accepting this grant of power, we 

must assume that it meant just what It said, i.e., that counties 

could condemn in the same manner as a water district either 

within or without the boundaries of the condemning county. 

There is no logical reason to differentiate the rights of eminent domain In condemnation proceedin s by a county under 

Article 1581e V.A.C.S. and Article 73 8 0-126(n) V.A.C.S. It 

is only the mechanical procedure that is different. 

Therefore, we answer this first question in the 

affirmative. 

Your second question is as follows: 

"2 . Can Article 7880-126(n) be used by 

the Commissioners' Court without forming a 

water district?" 

Article 7880-126(n), V.A.C.S., states as follows: 

"Any Count 

--cd 

Levee District, or Navigation 

District of s State may elect to proceed to 

condemnation under the provisions of, and In the 

manner established by, this Act, having regard 

only to causing such proceedings to conform to 
Honorable Jerry N. Shurley, page 6 (WW-791) 

the law of the being of any such governmental agency." (Emphasis supplied.) 

The Acts of 1925, 39th Leg., Ch. 25, are codified as Articles 

7880-l to 7880-153, V.A.C.S. inclusive. Article 7880-126(n) 

clearly makes such Acts available to counties as to condemnation. Such Article is quoted next above. It is seen that 

this Article applies only to an election of a condemnation procedure, and does not require the county to organize itself as 

a Water District. This Article is designed to be interchan eable 

with Article 3264, v.A.c.s. as indicated by Article 7880-12 8 (a) 

which permits the Water District's Board of Directors to elect 

to proceed under the provisions of Title 52, hinent Domain, 

V.A.C.S. The Legislature obviously Intended to provide reciprocity of procedures in condemnation. 

We therefore answer your second question in the 

affirmative. 

Your third question is: 

“3 . If the answer to No. 1 is affirmative, 

what is the condemnation procedure to be employed?" 

In view of our answers to questions 1 and 2, supra, our 

conclusion is that the Commissioners' Court has the power of 

election to proceed in condemnation under either Article 1581e 

V.A.C.S. (utilizin 

or under Article 7 % 

the procedure set out In Article 3264 V.A.C.S.) 

80-126 V.A.C.S. 

Your fourth question is as follows: 

,114. If the answer to No. 1 is negative, 

how will the Commissioners' Court of Sutton 

County proceed to obtain such easements?" 

Since our answer to question No. 1 was in the afflrmative, we do not tender an answer to this question. 

SUMMARY 

1. The Commissioners' Court of Sutton 

County does have the power of eminent domain 

to condemn land for flood control easements 

where the land Is situated In an adjacent 

county. 
Honorable Jerry N. Shurley, Page 7 (WW-791) 

2. Sutton County may elect to proceed 

to condemnation under the provisions of 

Article 7880-126(n) V.A.C.S., without forming 

a water district. 

3. The Commissioners' Court of Sutton 

County may elect to proceed in condemnation 

of land situated in an adjacent county under 

either Article 1581e V.A.C.S. or under Article 

7880-126 V.A.C.S. 

Very truly yours, 

WILL WILSON 

Attorney General of Texas 

,44/W 

Donald R. Bernard 

Assistant 

DRB:ljb 

APPROVED: 

OPINION COMMITTEE 

W. V. Geppert, Chairman 

W. Ray Scruggs 

Jack N. Price 

Morgan Nesbitt 

REVIEWED FOR THE ATTORNEY GENERAL 

By: 

Leonard Passmore