# The Attorney General of Texas

December 18, 1981 MARK WHITE Attorney General

Supreme Court Building P. 0. Box 12546 Austin. TX. 76711 5121475-2501 Telex 910/674-1367 Telecopier 5121475-0266

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An Equal Opportunity/ Affirmative Action Employer HonorableMike Driscoll Harris CountyAttorney 1001 Preston, Suite 634 Houston,Texas 77002 OpinionNo.MW-412
Re: Authority of county flood control district to lengthen private bridge crossing channelwidenedby district
Dear Mr. Driscoll:
You have requested our opinion regarding whether the Harris County Flood ControlDistrict is required to expend funds to lengthen a privatebridgewhich crossesa channelwidenedby the district. You first ask us to assume that the district has previously approved the construction of the bridge across its easement and that the district now proposes towiden the channel. The Harris County Flood Control District, a district organized under article 16, section59 of the Texas Constitution,was createdby specialact of the legislature in 1937.Acts 1937, 45th Leg., ch. 360. at 714. Section 50.052 of the Water Code is applicable to such districts. Itprovides:

(a) If any district or authority organized under the provisions of Article III, Section 52, or Article XVI, section 59, of the Texas constitution, in the exercise of the power of eminent domain, the police power, or any other power requires the relocation,raising, lowering, rerouting,or change in grade or alteration in the construction of any highway, railroad, electric transmission, telegraph, or telephone lines, conduits, poles, properties, facilities, or pipelines, the relocation, raising, lowering, rerouting, or change in grade or alteration of construction shall be done at the sole expense of the districtor authority. (b) 'Soleexpense'means the actual cost of the relocation, raising, lowering, rerouting, or change in grade or alteration of constructionand providing comparablereplacementwithout enhancing

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the facilities after deducting from it the net salvagevalue derived from the old facility. (c) This section shall not be applicable to those projects under construction or financed or for which bonds have been voted and approved by the acts of any district on the effectivedate of this Act, unless the provisions hereinabove are contained in the acts of the district authorizing said constructionor financing.
In our opinion, if the district widens the channel so as to render the bridge unusable, the district may reasonably be said to have acted tn require the "relocation...reroutingor... alteration in construction of... properties." In such instance, section 50.052 directs that "relocation...rerouting...or alterationof construction shall be done at the sole expense of the district...." The statute does not make any distinction based upon whether the "property" was originally constructedwith the district's approval. We believe that it requires the district to bear the sole expense of lengthening the bridge without regard to whether the districthas previously approved its construction.
It has been suggested that several provisions of the Texas Constitutionprohibit a district from expending its funds to lengthen a private bridge crossing its channel. See Tex. Const. art. III, - §§50, 51, 52, 55. In State V. City of Austin, 331 S.W.2d 737 (Tex. 1960), however, the Texas Supreme Court upheld the constitutionality of article 6674w-4, V.T.C.S., which provided that relocation of utility facilities necessitated by improvement of highways shall be made at state expense. See also State v. City of Dallas, 319 S.W.2d 767 (Tex.Civ. App. - Austin 1958),aff'd, 331 S.W.2d 737 (Tex. 1960). In our view, there is no significantdistinction, for constitutional purposes, between article 6674w-4 and section 50.052 of the Water Code. Accordingly, we believe it is clear that the Texas Supreme Court would uphold the constitutionality of section 50.052. Of course, the statute may be unconstitutionallyapplied in particular situationsif thepublicpurpose is not adequately served as indicated by the court in State v. City of Austin, supra. See also Harris County v. Dowlearn, 489 S.W.2d 140 (Tex. Civ. App. - Houston 114th Dist.] 1972,writ ref'dn.r.e.).
SUMMARY Section 50.052 of theWater Code requires the Harris County Flood ControlDistrict tn lengthena private bridge crossing a channel which has been widened by the district,without regard towhether the district has previously approved the

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constructionof thebridge. Section50.052 of the Water Code is not unconstitutionalon its face.
very trulyyours, f)

MARK WHITE AttorneyGeneral of Texas JOHNW. FAINTER,JR. FirstAssistantAttorney General
RICHARD E. GRAY III ExecutiveAssistantAttorneyGeneral Preparedby Rick Gilpin AssistantAttorney General
APPROVED: OPINION COMMITTEE Susan L. Garrison,Chairman Rick Gilpin Jim Moellinger BruceYoungblood

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