# The Attorney General of Texas
December 12, 1978
JOHN L.HILL AttorneyGeneral

Honorable Joe Resweber Harris County Attorney 1001Preston Houston, Texas 77002 Opinion No.H-1278
Re: May Harris County require storm sewers tobe designed with capacity to drain county road used asoutlet? Dear Mr.Resweber:
Youaskthe following question:

May Harris County require parties constructing storm sewers, and using County roads as outlets to outfall systems, to design the storm sewers with enough capacity to drain the County road right of way and the adjacent areas fronting onsuch County roads.
You state that county roads have been used as an outlet for storm sewers draining developments which usually are installed by water districts. This practice has onoccasion allowed two storm sewers to be constructed within a given segment of road right of way without regard to roadside ditch drainage and has thereby restricted space available for the installation ofstorm sewers funded bythe county. Your question involves many possible fact situations and is not subject to comprehensive resolution in the opinion process. To the extent that you inquire about storm sewers built by water districts within the areal confines of Harris County roads, we believe your question is answered by Attorney General Opinion M-56 (1967). That opinion determined that the commissioners court may require that plans and specifications be submitted to the County Engineer by a Fresh Water Supply District for his approval prior to the construction of storm sewers within the areal confines of Harris County roads. See also Attorney General Opinion M-56A(1967). It appears, however, that it is the county’s duty to provide drainage for county roads it constructs. V.T.C.S. art. 6730; Harris County Road Law, Acts 1913,33rd Leg., Special Laws, ch. 17,SS1,2, 3, 12,16,21,29, at 64-70. See Willacy County v. Oakes, 239S.W.2d692 (Tex. Civ. App. F San Antonio l%,

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writ ref’d) (county has noright to cause drainage to flow onto adjacent landowner’s land). Alandowner may not, however, divert the natural flow of surface waters so that they threaten county roads. Soule v. Galveston County, 246S.W.2d491(Tex. Civ. ADD.- Galveston 1951.writ ref’d). The countv is entitled to a mandatorv injunc& to prevent such diversion. ~.h& See al&rittian v. Hale County, 297 S.W.2d 721(Tex. Civ. App. - Amarillo 1957,no writ). Whether these principles apply in a particular case depends on facts relating to the natural flow of water. Wenote that article 6789, V.T.C.S., permits the owners of lands abutting on or within one mile of a county road or adjacent ditch to connect lateral drainage ditches with the countv ditch. However. this Drovision aoolies onlv in counties which have adopted aVoluntary assessment drainage systim pursuant to articles 67716789, V.T.C.S. Messer v. County ofRefugio, 435S.W.2d220(Tex. Civ. App.- Corpus Christi 1968,writ ref’d n.r.e.). Where a private individual owns the fee interest in and under acounty road, he mav use the subsurface in a manner that does not imDair the DUbliCeasement. Hill &m,~ Inc. v. Hill County, 436 S.W.2d 320 (Tex. 1969);City of Fort Worth v. ;;;i”,“s eHotel Company, 380 S.W.2d 60 (Tex. Civ. App. - Fort Worth 1964,writ

, . . )

.. Astranger to title inthe road maynot encroach onthe easement over the objection of thepublic agency vested with-jurisdiction in the road. Hill Farm, Inc. v. Hill County, supra. The Harris County Road Law authorizes the commissioners court to grant easements over, along, or across any public road or highway, subject to reasonable conditions or restrictions prescribed by the court. Sec. 7A, Acts 1947,50th Leg., ch. 205, S 8, at 361. See- enerall county of Harris v. Tennessee Products Pipe Line Company, 332 S.W.2d 777 Tex. Ctv. App. - Houston 1960,no writ) (Harris +. Countv could enforce reasonable rexulations asto construction ofpipelines crossing roads but could not deny right to &eline easement given by statute). Cases may arise where persons seek a drainage easement on or along a county road to which they are not otherwise entitled. Depending on the facts ofthe situation, it maybe reasonable for the county to impose design requirements on the proposed storm sewer asacondition to the grant ofthe drainage easement. Finally, Harris County may have some power to regulate the use of land, structures, and other development so as to control flood damage. Article 1581e-1, V.T.C.S., authorizes any county bordering on the Gulf of Mexico or the tidewater limits thereof to enact regulations, which may include drainage specifications, in

“flood, or rising water prone, areas.” Sets. 2, 4; see Attorney General Opinion h-1624 (1977). See also Water Code SS16.3ll - 16.3wAttorney General Opinions H-1102, H-1011(munty authority to take actions to comply with National Flood Insurance Program established pursuant to42U.S.C. SS4001-4127). SUMMARY Harris County may require prior submission of plans and specifications for storm sewers tobebuilt by water districts

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within the areal confines of Harris County roads. Whether the county may impose other requirements on the construction of storm sewers using county roads as outlets depends on facts relating to the natural flow of water and the ownership of the subsurface of the road. Inparticular cases, the county may have authority under the Harris County Road Law to impose design requirements as a condition to the grant of a drainage easement. It may also have some authority pursuant to article 1581e-1to enact regulations or drainage specifications for flood prone or rising water prone areas.

APPROVED: v

DAVIDM.KENDALL, First Assistan

‘&U C. ROBERT HEATH, Chairman Opinion Committee

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