The Attorney General of Texas 

December 12, 1978 

JOHN L. HILL 

Attorney General 

Honorable Joe Resweber 

Harris County Attorney 

1001 Preston 

Houston, Texas 77002 

Opinion No. H-12 78 

Re: May Harris County require 

storm sewers to be designed with 

capacity to drain county road 

used as outlet? 

Dear Mr. Resweber: 

You ask the 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 on such 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 on occasion 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 of storm sewers 

funded by the 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, SS 1, 2, 3, 12, 16, 21, 29, at 64-70. See 

Willacy County v. Oakes, 239 S.W.2d 692 (Tex. Civ. App. F San Antonio l%, 

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Honorable Joe Resweber - Page 2 (R-1278) 

writ ref’d) (county has no right to cause drainage to flow onto adjacent landowner’s 

land). A landowner may not, however, divert the natural flow of surface waters so 

that they threaten county roads. Soule v. Galveston County, 246 S.W.2d 491 (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. 

We note 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 a Voluntary assessment drainage systim pursuant to articles 

67716789, V.T.C.S. Messer v. County of Refugio, 435 S.W.2d 220 (Tex. Civ. App. - 

Corpus Christi 1968, writ ref’d n.r.e.). 

Where a private individual owns the fee interest in and under a county road, 

he mav use the subsurface in a manner that does not imDair the DUbliC easement. 

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 

, 

. . . ) . A stranger to title in the road may not encroach on the easement over 

the objection of the public 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 as to construction of pipelines 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 of the situation, it may be 

reasonable for the county to impose design requirements on the proposed storm 

sewer as a condition to the grant of the 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 SS 16.3ll - 16.3wAttorney General Opinions 

H-1102, H-1011 (munty authority to take actions to comply with National 

Flood Insurance Program established pursuant to 42 U.S.C. SS 4001-4127). 

SUMMARY 

Harris County may require prior submission of plans and 

specifications for storm sewers to be built by water districts 

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Honorable Joe Resweber - Page 3 (H-1278) 

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. In particular 

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-1 to enact 

regulations or drainage specifications for flood prone or 

rising water prone areas. 

APPROVED: v 

DAVID M. KENDALL, First Assistan 

‘&U 

C. ROBERT HEATH, Chairman 

Opinion Committee 

P. 5055