TRP: ATIVDRNEY GENERAL 

OF TEXAS 

AUWISN. - 7elll 

*O-N L BII.& 

Am- o-An,, 

July 18, 1977 

Hon. Joe A. Hubenak, Chairman Opinion No. H-1024 

House Committee on Agriculture 

and Livestock Re: Authority of counties 

Texas House of Representatives bordering Gulf of !4exico or 

State Capitol its tidewater limits to enact 

Austin, Texas 78701 flood control regulations 

under article 1581e-1, V.T.C.S. 

Dear Chairman Bubenak: 

You have asked whether a county bordering the Gulf of 

Mexico or its tidewater limits is authorized by article 158le-1, 

V.T.C.S., to enact flood control regulations governing all areas 

of the county subject to flooding , or if regulations,so enacted 

are applicable only to areas subject to flooding by the Gulf.of 

Mexico or its tidal waters. 

Legislature in 1969. 

Article 1581e-1 was enacted by the 

Like article 8280-13, V.T.C.S., article 

1581e-1 was enacted for the purpose, inter alia, of permitting 

political subdivisions of the State to enactregulations necessary to participate in the National Flood Insurance Program. 

See 42 U.S.C. 66 4001-4128: Attorney General Opinions H-1011, 

-78 (1977). Unlike article 8280-13, however, article 1581e-1 

applies only to counties bordering on the Gulf of Mexico or the 

tidewater limits thereof. Article 1581e-1 is also dissimilar 

from article 8280-13 in that it contains no deadline for counties 

to qualify for participation in the National Flood Insurance Program., Cf. Attorney General Opinion H-1011 (1977) (a county has 

no presx authority to enact land use regulations for floodprone areas 'under a?ticle 8280-~13 unless it qualified for particination in the National Flood Insurance Program bv June 30, 

Article 1581e-1 thus authorizes counties bordering the 

Gulf of Mexico or its tidewaters to qualify for participation in the federal flood insurance program at any time, but 

limits the geographical coverage of flood control regulations 

promulgated by such counties to "flood, or rising water prone, 

areas. " Section 4 of article 1581e-1 provides: 

,p. 4229 
. , 

, 

Hon. Joe A. Rubenak, Chairman - Page 2 

The cosmiissioners court of any such county 

shall have the power and authority to enact 

and enforce regulations which regulate, restrict, or control the management and use 

of land, structures, and other development 

in flood, or rising water prone, areas in 

~such a manner as to reduce the danger of 

damage caused by flood losses. This power 

and authority may include, but shall not be 

limited to, requirements for flood-proofing 

of structures which are oermitted to remain 

in, or be constructed ini, flood or rising 

water prone, areas; regulations concerning 

minimum elevation of any structure nermitted 

to be erected in, or improved in, &ch areas; 

specifications for drainage; and any other 

action which is feasible to minimize flooding 

and rising water damage. 

(Smphasis added). A "flood, or rising water prone, area" is 

defined by section 3 as 

an area that is subject to or exposed to. 

flooding by the Gulf of Mexico or its tidal 

waters, including lakes, bays, inlets, and 

lagoons, which results in damage to land 

or property. 

We believe these provisions of article 1581e-1 limit the 

power of the commissioners court to enacting regulations applicable to areas subject to flooding by the Gulf of Wexico or its 

tidal waters, including lakes, bays, inlets and lagoons, and do 

not make those regulations applicable to all areas of the county. 

Cur conclusion is supported by an examination of the legislative history of article 1581e-1. As originally introduced, the 

bill which was ultimately enacted as article 1581e-1 provided: 

The term 'flood, or rising water prone, 

area" as used in this Act means areas 

that are subject to or exposed to flooding 

by waters and consequential damages. 

Senate Bill 734, 61st Leg., Reg. Sees., S 2. The Senate Committee on Insurance amended the bill to substitute the more 

limited definition of "flood, or rising water prone, area" 

found in section 3 of article 1581e-1. The amended bill then 

p. 4230 
Hon. Joe A. Hubenak, Chairman - Page 3 

passed both houses of the Legislature unanimously. We think 

it clear that the action of the Senate Cosnnittee was intended 

to limit the geographical scope of regulations promulgated 

pursuant to article 1581e-1 to areas subject to flooding by 

the Gulf of Mexico or its tidal waters, including lakes, bays, 

inlets and lagoons. 

Section 2 of article 1581e-1, however, empowers the commissioners court of the affected county to determine the 

boundaries of such areas. Section 2 provides: 

Any county bordering on the Gulf of 

Mexico or the tidewater limits thereof 

may determine and describe the boundaries of flood; or rising water prone, 

areas. The suitability of such determination shall be conclusively established when the commissioners court of 

auchounty shall have made a finding 

in a resolution passed by it that an 

area or areas located within the boundaries of such county are flood, or rising 

water prone, areas. 

(Emphasis added). Thus, the commissioners court of a county 

bordering the Gulf of Mexico or its tidewater limits may conclusively determine the geographical scope of its powers 

under article 1581e-1 through a resolution finding the boundaries of flood or rising water prone areas. Cf. Texas Highway 

Commission v. El Paso Building and Constructii%-Trades Council, 

234 S.W.Zd 857 (Tex. 1950) (statute making determination of 

the Highway Commission as to general prevailing wage "final" 

made Commission's decision not subject to review by the courts). 

SUMMARY 

The commissioners court of a County bordering the Gulf of Mexico or its tidewaters is authorized by article 1581e-1, 

V.T.C.S., to enact land use regulations 

applicable only to areas subject to flooding 

by the Gulf of Mexico or its tidal waters, 

including lakes~, bays, inlets and lagoons. 

The commissioners court may conclusively 

establish ~the limits of such 'areas by making 

findings in a resolution passed by it. 

p. 4231 
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Hon. Joe A. Hubenak, Chairman - Page 4 

APPROVED: 

Attorney General of Texas 

ROBERT ~HMTE, 

ginion Cosdttee 

Chairman 

klw 

p. 4232