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 

1607 Main St., Suite 1400 

Dallas, TX. 75201 

2141742-6944 

4624 Alberta Ave., Suite 160 

El Paso, TX. 79905 

915l533-3464 

1220 Dallas Ave., Suite 202 

Houston. TX. 77002 

713/65M)666 

606 Broadway, Suite 312 

Lubbock, TX. 79401 

6061747.5236 

4309 N. Tenth, Suite S 

McAllen, TX. 76501 

51216624547 

200 Main Plaza. Suite 400 

San Antonio, TX. 76205 

512l2254191 

An Equal Opportunity/ 

Affirmative Action Employer 

Honorable Mike Driscoll 

Harris County Attorney 

1001 Preston, Suite 634 

Houston, Texas 77002 

Opinion No.MW-412 

Re: Authority of county flood 

control district to lengthen 

private bridge crossing 

channel widened by district 

Dear Mr. Driscoll: 

You have requested our opinion regarding whether the Harris 

County Flood Control District is required to expend funds to lengthen 

a private bridge which crosses a channel widened by 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 to widen the channel. 

The Harris County Flood Control District, a district organized 

under article 16, section 59 of the Texas Constitution, was created by 

special act 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. It provides: 

(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 district or authority. 

(b) 'Sole expense' means the actual cost of 

the relocation, raising, lowering, rerouting, or 

change in grade or alteration of construction and 

providing comparable replacement without enhancing 

p. 1405 
Honorable Mike Driscoll - Page 2 (MW-412) 

the facilities after deducting from it the net 

salvage value 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 effective date of 

this Act, unless the provisions hereinabove are 

contained in the acts of the district authorizing 

said construction or 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... rerouting or... alteration in 

construction of... properties." In such instance, section 50.052 

directs that "relocation... rerouting... or alteration of 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 constructed with 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 district has previously approved 

its construction. 

It has been suggested that several provisions of the Texas 

Constitution prohibit 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 significant distinction, 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 unconstitutionally applied in particular 

situations if the public purpose 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'd n.r.e.). 

SUMMARY 

Section 50.052 of the Water Code requires the 

Harris County Flood Control District tn lengthen a 

private bridge crossing a channel which has been 

widened by the district, without regard to whether 

the district has previously approved the 

p. 1406 
Honorable Mike Driscoll - Page 3 (NW-412) 

construction of the bridge. Section 50.052 of the 

Water Code is not unconstitutional on its face. 

very truly yours, f) 

MARK WHITE 

Attorney General of Texas 

JOHN W. FAINTER, JR. 

First Assistant Attorney General 

RICHARD E. GRAY III 

Executive Assistant Attorney General 

Prepared by Rick Gilpin 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Susan L. Garrison, Chairman 

Rick Gilpin 

Jim Moellinger 

Bruce Youngblood 

p. 1407