. . 

. 899 

OFFICE OF THE A’ITORNEY GENERAL OF TEXAS 

AUSTtN 

Bonorahle W. P; Efma, Jr. 

County Auditor 

W8ller county 

Reqw bad, lbxas 

as vell a~~public interest. 
900 

Ro~orable W. P; Berms, Jr., Page 2 

. 

We wLl1 not decide the questign of whether the 

rice famers haV,e biilt tie levee in question vron@ally or 

negligently or vhether the building of said levee has rem 

sulted in floods on other peoples’ land, but for the purI pose of your yestion Ye will only discuss what action the 

Coumfsslonero Court can take In the event said levee has 

actually been constructed so as to ~3~33 flooding to the 

oounty roads and otbeer peoples@ land vlthout the .consent 

of’ ‘the custodians and owners of said roads snd lands. . 

.I He assme that the lkee In question wa3 made by 

the rice fsrzers as en irri&3on lmprovenent to aid then 

8. in irrigating tholr rice lnnb, ?%3mfo’r~, Article 0028, 

Revlssd Civil Statutes of Texzs, which provides for the 

regulation of the building of levees, does not’ apply, be- 

,cau38 It contains a provialon as follovsr 

a’ 

, .i i , ~Provided, that the pr&lsions 

of this section shall not apply to dam, oanals 

I or other.kttprovenents uade or to be made by ir- 

~rigntion, vater improverjents or lrrljjstlon inprovenents nade by Lndlviduals or oorporatlons.’ 

: .__ The Fight of the’nei@borlng farmers for Fedress 

of thebr Injuries as a result of the flood3 catised by the 

byild~ of. said levee is a prLsate right; and the State 

and its politic,al subdivisions, such as Counties, cannot 

prosscute aotions for the protection of private rights. 

The State has~created courts Ln which the rights of per 

sons and ‘ropertp can be protected and disputes betweeil 

oitizens E itigated. A citizen who believes thst his property &s .bsen injured.because of the yrongul aot of 

another ,ahould go into court and brti?; the proper action 

to re,dress~ the’ufong done to bin. The State will not 

bring .the s&Ion f6r Nn. In 53 Corpus Juris. 324 it aagst 

'I 

. . . . a state is neither a neceesaq 

nor proger party pkintiff to a civi& actl.oa 

vhLch~lnvolves aerely tfie protection of a private right or the rdreas of a private wrong, 

in which the ststo or tile puhlio is ti 110 w8y 

interested . .,. ..” 

. 

__ 
901 

EoAorable If. P, Hems, Jr., Pa@ 3 

:2, >, 

If the State’s groyerty is injured, or 8 publ.Lo 

vrong is coxmlttsd, by sorreone the State can go into court 

and prosecute an action, but it cannot prosecute an action 

to redress a private uroq.. IA the cabe of Ex psrte Xrlghes 

133 Tex. 505, 129 3.W. 2nd 270, the Suprane Court of Texas 

raid) . -, 

b 

. . . . The State caq go to court to 

enforce its own property or 01~3.1 rig&a, and 

the prqcrty or oivil riii;hte of the public Fn . 

SeAoral. By public in general ia near& the 

entire public, not mersly ri&ts of interest 

to BOIM particular group, evm though ttit. 

group nsy be of large proportiom.” 

in the case of Jeffereon County Dr&?age Disk 

Ho. 6,~. Southvell, 32 S.W. 2nd 895, it uas hold that a 

draInage district could not nzintaLn a quit to abate a 

nuisance caused by a dzxn built by lndivLduols and which 

only iajured nearby landowners, but that~ orJy safd injured land,ouners could maintain such suit. 

.- 

Beoausk of the foregokq reasons, vir are of the 

op%nlon that the Comaisslonerst Court has no authority to 

take xaq action because of the “flooding of a nmber of 

fanners as a result of the build&q of said levee. 

OA the qusation oomerdng the floodlcg of the 

county.roads, ve me of tha optiioa that the Commissioners’ 

Court can take some action. 

Article 2351, Revised’ Civil Statutes of Texas, 

provides I.n part as followa: 

“&ch co*ssl,oners co&t shall-i 

‘I 

. l . . 

“6. aercise genmal control over all 

roads; high-days, ferries and briees in thcir~ 

CouAtloa* : 

tl 

. . l . l n 
902 

Honorable Vi P. Hems, Jr., Page 4 

. . 

The authbiity of the Comissio~ers’ Cotits vhich arises by 

virtue of the powers co;lferred u?on tima by tho Legislature 

%a expressed ,in 11 Texas Jurisprudence 565, 566 as ,follous~ 

. 

.~ 9 . . l í in the Co untCy o sllllssla Aec or sur~ t 

-is the active governing body OS the county, 

with 8 juriadictlo~ that touches $.n soze respoat alzost ever7 featum of the ‘county’s 

buslnass, and the court hse full and ,gemral 

charge of the buslnoss affairs of t’ne county. 

., . . . Anti it is held that the comissionera’ 

courts have lzzpllsd euthority to da what my 

be necessary in the exercise of the duties or 

pdrers conferred UBOA thm,” 

%W& authority lnoludes the filing of! suits, if necessary, 

in orc?er to carry out their povors. Sn the case of ~ooecan 

v. County. of Earris, 58 Tex. 511# the court sa1.d: 

. 

“The comslssloners~ court, prcsldid over 

bi'the Counts Sudae. is VirtuallY a council 

vegted with polar 

- _ 

to mnage and hircct all such 

msterlal aa f33i3ncirrl Interests of the county 

as the laws ,of the stats have confided to its 

jurisbiction. TUG caao~exmt of’ the fimr~eial 

affairs of the coyty hme always heretofore 

been vested in tribunals vfrich have existed st 

different tines under vsrl.ous mms and desig- . . 

nations, such as county court, com%esZonors’ 

court, etc.; they have, however, all been 

alothed with similar powers, and like &ties 

have been tipo?ed upon then. The cmlssloners~ 

oaurt undoubtedly has tha right to cause stits 

to be instituted in the nme of snd for the 

.ba?er”lt of the coimty, and except where a aoncurrent rQjht to do the 3am thin& or whore 

an exclusive right in a specified case or oases 

‘is conferred upon tcm othor tribunal or som 

other officer of the govemmnt, the COX&- 

sioners’ court must be decned to be the quasi 

executive head of the county, vested with exoluslve power to deternine when a suit shall 

be instituted ti the nme of and for the benefit of the count$.n 
Eanor8ble W. Pr Eems, Jr., Pa3e 5 

To~the sea8 &feat is the holding of the aouzt in the case 

ot.Brite v, Atasaosa County, 247 9.W. 878, in whXoh it MS 

aaid: 

s ..“’ The statute (article 1365) ex- 

~pressly’~&~s*eac’i county a body-cozporste and 

polltic, and as such it unao-.iXmIly ha the 

‘paver sod 4utoority to Institute suit3 2nd 

,’ &fed a&nat those brought a@.nst it. The 

iComtitut2on of Texas reco;;nizes domties as 

muniaipal.corporations along vith cities end 

i to u x ls . . l .í 

As the.Comissioners* Court hes control over the 

camit* rozds a?d 4s said court hzm tha lqlied authority 

to do vhxt is necessary ti order to aarry out the powers 

aonforred upon it oven to the extent of institutirq suits 

in the nem of a.pd.for tlm bezcfit of the comty, we see 

no ressoz w*hy the Comisaiomr3~ Court could not tistitute a suit to prevent 4n unlcvful i&m?femme with the 

county roads. xn 25 &mdcan ~~~ioprum~ce 618 t’ais partiaular subject is discussed L~I woqda as follows: 

‘Injumtion oxL?.mrily lie* at tho suit 

of the proper public authorities to prevent 

8.u un14wrful obstruction of or encroacixmt 

upon a publtc w4y uixLch lnterfemg~with the 

enjoyment of the public rl@t, to prGvG3.t the 

creation or ~alntexnce of a nuisance th?srein, 

or to congcl the removal or ab4tezent of such 

83 obstruation, enc,no4chzent, or nuiszi~ae. A 

govermental agency which owns the fee of the 

atreet’or othep hishmy imy also, in 4 propeP 

case, naimh3.n .an action to enjoin 311 mlzmr’ul 

obstpuotlon thereof, upon the grmi~3 that suoh 

obstructions mounts to a tresp,css . . . .’ 

In the recent case of State v. Dickey, 158 S.Y. ad 894, the 

State brought s-tit against ILL Ltiividu?l31 fo? dzmging a . 

bridge on a highvay controlled by the State through its 

State Hishvoy Departuent. 

903 
i I. . 904 

our ansver to your inquiry is th3t the Coz!mliarlmers’ Court of Yaller Comty ha5 no authority to take 

amy actio?l on be:&%lf of the famers vhooe lfinds have )oen 

Slooded 08 a result of the building of tba lovae by other 

parsons . Scid finer8 are entitled to t&e action on their 

ovn baslr. Ho*mver, it IS o'ur further enwer thzt the 

Coixtlssioner~~ Court Is e'lltltlcd to Lnstltute suit ln the 

none of and for tho benefit of the county to enjoin the 

msintdning of said levee In a imnner %hat Vi11 cause 

flooding of the county rocds. OS course, ue are not indicatlng the outcozm of such a suit, becmxi that vi11 dcpend onth3 fact8 that are dovelopd during the trial. 

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ATTORiQY 02iX2R&L OF !iXXAS