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## 899

OFFICE OF THE A’ITORNEY GENERAL OF TEXAS AUSTtN

Bonorahle W. P; Efma, Jr. CountyAuditor W8ller county Reqwbad, lbxas

as vell a~~public interest.

### 900

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

. WewLl1 not decide the questign of whether the rice famers haV,ebiilt 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 otbeerpeoples@ land vlthout the .consent of ’ ‘the custodians and owners of said roads snd lands.
. .I He assme that the lkee In question **wa3** madeby 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 madeby ir-

~rigntion, vater improverjents or lrrljjstlon inprovenentsnade by Lndlviduals or oorporatlons.’ : .__TheFight 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 Lnwhich the rights of per sons and ‘ropertp can be protected and disputes betweeil oitizens itigated.

E A citizen whobelieves thst his property &s .bsen injured.because of the yrongul aot of another ,ahouldgo into court andbrti?; 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
. .,. ..”

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### 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 Expsrte Xrlghes 133 Tex. 505, 129 3.W. 2nd270, the Suprane Court of Texas raid)

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-, b TheState caq go to court to
. . . . enforce its ownproperty or 01~3.1rig&a, and the prqcrty or oivil riii;hte of the public Fn
. SeAoral. Bypublic 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 andwhich 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.

OAthe qusation oomerdng the floodlcg of the county.roads, ve me of tha optiioa that the Commissioners’ Court can take someaction.

Article 2351, Revised’ Civil Statutes of Texas, provides I.npart 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* :

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### 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 %aexpressed ,in 11 Texas Jurisprudence 565, 566 as ,follous~

. .~ 9 . . lí in the County

CosllllsslaAers ~

c ourt -is the active governing body OSthe county, with 8 juriadictlo~ that touches $.nsoze 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.

., . . . Antiit is held that the comissionera’ courts have lzzpllsd euthority to da whatmy 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. Snthe 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 whena suit shall be instituted ti the nme of and for the benefit of the count$.nEanor8ble 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 whXohit 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 tou xls . . l .í As the.Comissioners* Court hes control over the camit* rozds a?d 4s said court hzmtha 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 tlmbezcfit 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 woqdaas follows:

‘Injumtion oxL?.mrily lie* at tho 

### suit of the proper public authorities to prevent 8.uun14wrfulobstruction of or encroacixmt upon a publtc w4yuixLch lnterfemg~with the enjoyment of the public rl@t, to prGvG3.tthe 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. 

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### 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:&%lfof 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~~ 

### CourtIse'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. OScourse, ue are not indicatlng the outcozm of such a suit, becmxi that vi11 dcpend onth3 fact8 that are dovelopd during the trial. ..



### ATTORiQY02iX2R&L

OF !iXXAS