GENERAL

Hon. Joe Reeweber ~'. CountyAttorney H+rrie County Courthouse Houston, Texas

Dear Mr. Remeber:<' Opinion HO. ~-56

Re: Whether the Commissioners Court of Harrta County may require thatplans and speclflcatlonsof storm sewers of FreshWater Supply Districts be submitted to the County E@neer, for hi6 approval,prior to conefi~ctlon of such 8ewer6when the storm sewers are to.be locs~~d,wl.th.in~ the area1 ccipfinee of Barr16 County,

made; ln '.~.ub~$~:aj.ons not within. cities;,. ind...qy p+i@j*, pTopeytynot within clt,lea;

,md whether T,exas watqr Rlght6 Conrmfssion hq6 any,au$horlty t~i&xf?rdise, supervisorypates ti+Fr,mch d&~&,r%cte

during the, cpnBtrQctlonand~maintenance Of .su'dh

StOl’kll6eWer6.

Your request 'ioran opinicinof this office present6 the following questions:
"1. WIðeror not themComm&a~ioners'Courtcan requipe that plane and specificationsbe eubmitted to'the County Engineer for his approval.,bythe FreshWater Supply District p+pr,.to.$he actual constructionand installation of storm sewerg,when said storm sewers are locatedwithin the area1 confines of Harris County roads?
'2. Whether or not the Comiesloners Court can require that plan6 and epecificat,ions be submitted to then County Engineer for his approvalby the Fresh Water Supply District prior to the actual construction and installation'

of storm sewera,.when Said"etor6I sewers are located within the area1 confines o?

- 256 -_l”.l c_. _, -....- --.. ---

-~

Hon. Joe Resweber, page 2 (~-56)

Of 6UbdiVi6iOn6, said subdivisionsbeing located outside City lititS?

“3. 'Whetheror not the Commi,sgi.oners Court can require that plan6 and spacifiCat$onsbe submitted to the County Engineer for:,his.,approval by the Fresh Water Suppry $$dtefct.pridr to the actual tj&istticEScii

and installation of '&t&m sewers,when said storm sewers are built on privately owned lands, said land6being located outside city limits?

“4. Does the Texas Water Rights Commission (formerly Board of Water Engineers) have any,authorlty to exercise any type Of SUperViSOrypower over the fresh water 6Upply diStriCt6prior t0 or during the constructionand maintenance of storm sewers?"
Theanswef to~~your questions is dependentupon whether a Fresh Water Supply District is authorized to construct stcrm sewers; therefore,consideration shall first .begiven to such determination..
Article 7881, Vernon's Civil Statutes, in part, provides:
'Theremay be created within this State conservationdistricts co be known a6 Fresh Water Supply District6 for the purpose of conserving, transportingand di6tributing freshwater from fakes, pOOl6, reservoirs,wells, springs, creeks, and rivers for domestic and commercialpurposes, as contemplatedb S tl At11 lb fth State Constitution. ' 'ec(~~hii%6 &pElEed) ' e Article 7918,'Vernon's Civil Statutes, ln.part,provides:
“All district6 Shall have full power and'author5--,",t$lld, construct, complete, carry out,

and in case of necessity add to and rebulld,~

all work6 and Improvementswithin and without such district necessary to aCCompli6h any plan of conservation, transportationand ‘distributionof fresh water adopted for or on behalf of such district, sary and proper contractsson6 and means necessary ioath, (EmpIiasis

Suppliei

r,

Acts,Section 1, Article 7930-4, Vernon's Civil Statute6 (as amended 66th Leg., 1957, ch. 232, Sec. 1, p. 484), provides as follows:

-257 -Eon. Joe Reeweber, page 3 (~-56)

"All Fresh Water Supply Districts heretofore or hereafter createdunder the provisions of Chapter 4 of Title 128, Revised Civil Statutes, of,Texaa, 1925, as wended, in addition to the powersheretofore granted, are hereby authorized to purcha6e,~~Con6truCt, acquire, own, operate, repair, improve and extend sanitary sewer syetems for the collection, transportation,processing, di6- poeal and control of all domestic, industrial, and communalwastes provided no otherpublic sanltary sewer 6yatem Is available for the area contained ln suchFresh Water Supply District, and the powera,hereinprovided are not.eXerc5.6edexcept after a duly called electionheld In the same manner as other election6 of Suchwater district ae provided by law."

Your letter does not indicate that "no otherpublic sanitary sewer system is available **for** the area” nor does It show that an election as provided InArticle 7930-b has been held; therefore, the applicability 

### of said Article 7930-4, not being shown,we must look toArticles 7881~and 7918 for such authority. It is the opinion of this office thatFresh Water Supply Districtshave authority, under Srticles 7881 and 7918 to cone,truct end maintain storm sewe,rs. for. the purpose of conserving fresh water, whether such storm sewers are.uqed ~tpd.ivertthe stormwaters from.,the reser.volr

or other .watersource so .a8 to avoid pollu.~jot~,- cont+m~atlon, eta*, or whether they are used to more efficiently route the stormwater6 to the lake, reservoir orother water source. This oplnlon is wrltten.upon the presumptionthat the storm sewersmentioned inyour letter are to be built for one or both 6uchpurposes. However,were the fact situation such a6 to make.appllcable the provisions of Section 1 of Article 7930-4, then the purposes for which such storm sewers could be built would be increased so a6 to include the uco~ilectlon,

transportation,processing, disposal and control of all domestic, industrial and communalwastes."

I.

It is the opinion of this office that the CommissionersCourt may require that plans and specificationsbe submittedby the Fresh Water Supply DiStriCt to the County Engineer for his approval,prior to the actual construction and lnstallatlon of storm sewers,when said storm sewers are to be located within the area1 confines of Harris County roads.
The Commlssioners Court is charged with the duty of exercising control over the road6 in the county and is authorized to make and enforce reasonable and necessary rules and orders for working said roads.

-258-Ron. Joe Resweber, page 4 (~-56)

Article 6741, Vernon's Civil Statutes, enacted In 1889, provides ln part, as follows:

"The commlsslonerscourtmay make and enforce all reaSOnab,le

and necessary Nlee and order6 for the worl&g and repairing **of** public roads, and to utilize the labor to be used and money expended thereon,not In conflictwith the laws of this State.

. .n Article 2351,Vernont6~Clvll Statutes, enacted in 1911,pro**vided,** In part; .asfollows:

"Each Comml66loner6Court shall:

11

. . .

“6. Exercise general control over all roads, hlghtiay6;ferrles&nd bridges In their counties."
The Harris CountyRoad Law, Acts 33rd Leg.,1913 Special Laws, ch. 17, p. 64, provides, In part, as follows:

"Section 1. That, subject to the provisions of thisAct, the commlssloners court of Harris County shallhave control of all roads,bridges, drains, ditches, culvert6 and all works and constructions Incident to It6 roads, brldgee, and drainage, that have been heretofore laid out or COnStruCted, or that may hereafter be laid otitor COnStruCtedby Harris County, or under Its direction.
'Section 2. Subject to the provisions of thisAct, the commlssloners court **of** Harris County shallhave the power and right to adopt such rules and regulations for the proper constructionand malnten&nce of Its roads, bridges and drainage as it may see proper, and shallhave power from time to time to add to, alter, repeal or amend same;.
. .n 1,

. . . "Section 33. The provisions of thisAct are, and shallbe, held and construed to be cumulative of all GeneralLaws of this State, on the subject6 treated in this Act, when not in conflict therewith,but In case of such conflict thisAct Shall control as to Harris County.Ron. Joe Resweber, page 5 (~-56)

"Section 9. Any and all laws and parts of laws in conflictwith any oi the provisions this Act ShEd.1 be, and the same are hereby repealed." of

FreshWater,Supply Districtshave the right of way across county roads...,Artlcle 7927,Vernon's Civil Statutes, enacted ln 1919, provide6 as fOlbW6:

"All districts are hereby.glven the right of way.'&%.%@ a'li

public or dtinty roads,but they~.~.shal&.

r&stoke such.roads where crossed to theirprevious condition for use, as near a6 may be."
Article 7928, Vernon's Civil Statutes, also a part of the same Act, provides:

"Said districts are authorized and empowered to make all necessary levees, bridges, **and** other improvementsacross or under any rallroad embanlsmenta, tracks, or right.6 of way, or public or private roads or the,rights of way ther,eof,

or rivers orother public improvements of other districts, or other such. Improvements &nd the rights of way thereof, for.thepurpose of securing the freshwater supplynecessary for Said diStrlCt6."
By Acts 50th Leg.,.1947,.ch. 205, p. 358, the Harris County Road Law was amended by the addition of a Section 7-A, which empowered ~theCommlss+o~ers Court of,Rarria County-to grapt,$,q any peraon;~firm or corpo~atlon en easement or right of way over,-~ al&g or across any.public road in HIartii.8, Cw$y ivldertheir jurlsdiction, s.ncl,

authorized the court to prescribe,such f+aaon@b&e conditions or restrictions'as it may find necessary pr desirable, including the charging of a reasonable compensation.

In Count of Harris v. Tennessee Product6 Pipeline Company, 332 S.W.=??+ 781 (T Cl A lgb0 lt hl t questioning td author::; o~'t~~*Comm&&~~a Co&' ' a case 0 require a pipe l$ne company,which also has an analogous statutory right of way across county road6 (Articles 6020, 6022 and 1497,~ V.C.S.) to obtain a permit or franchiseprior to crossing such road, the court stated:

- 260 -Hon. Joe Resweber, page 6 (w-56)

'It la a generai,

ruie‘oi atetut~ory'conatructlon .tha$atatutesmust be ao dqnstrued.,.a.s .to,be reconciled if posalblc. The InEqtl'on of-the ,. _'. LaglsXat.ke'Ia o?,~~~.impq~~@nce. .The Legls: :; .&at&e.

d.oe.s,_not:..qpreas

any IntantI.on.

to.repeal dr-iiodi$y.,.nor

%0e.sItma4e agy mention of,..... Artlciee '&X?O, ,022.kid.. $ gT'el$jk In the-title e*
or ~h~.,b~.lgi:~e.Am~dato~g, Act.. pe:muet, t~eye~o~e,,.~cpils~,~~f.~~ether.the-amen~~nt I.6so
**.9u** ge umwt .to.Articlea6.02?,,.6022, **,an9**14% **that** ~auch...~R!er&lment.

cqn stand....tie

think :no&h '.&+ncy eXlatW.The atatutea are reconcllIn39;Tex.Jur..iP

p..#X,. Se+.~75, statutee, It-ii steted: Mieiytheie' 16 no express rep&i; the~presuii&lon16 that~in enacting a new law the legislatureIntended the old statute to remain In operation.'" I)

. . . "TheAmerknent provides for the authorizing and regulating of the granting of easements across or along roads

### by the CommIssionera Court, etc. The critical section of the AmendatoryAct Is a new sectionknown as '7-A.' It provides In pert that the Coaa6lsslonera Court of Harris County shallhave the power to grant to any person, firm or corporationen easement or right of way over, along, or across anypublic road or highway In Harris County 

### andunder the JurlsdIctlon of the CoaakIsaIoners Court In IierrlsCounty, outside 

### of the llmlts of any Incorporated city or town. Such section then-provIdes,certaln terms end COndi~ion6under which suchperson, etc., she11use or occ,upythe easement or,.rIght of way, end provides that the Coa6sl6aIonera~ Court may prescribe such reasonable conditions or ,restrIctlona

as It may find necessary or desirable. It also provides that no such easement or right of way shallbe granted when it Impedes or seriously Interferes~wlththe use and occupancy of suchpublic thoroughfare as such, nor shall it be grantedwithout adequate provision for the protectionend repair o? the road or thoroughfareby suitablebond." *
II

. . .

-261-Hon. Joe 

### Resweber,page7 (M-56)

“In Humble Pipe Line Co. v. State, Tex.Civ.App., 2 S.W.2d 1018, error ref., the court held that the right expressly granted by Article 1497 and rights which followed by necessary implication, could be taken away from a pipe line.corporation only by a special act of the Legislature denying such right. Surely the 1947 amendment does not constitute such special **act** as would be required to take away from pipe line companies the powers and rights conferred upon them by Articles 6020,

,,_.,6022 and 1497,V.A.C.S.; Nor does it purport to take away such powers and rights. It does not provide that no person, firm or corporation shall cross a county road without a grant or permit **from** the ,.Commissionars Court. It simply gives the Commissioners Court the power to grant eaaemerits. It does not give the County power to grant **crossing** rights to public utilities and common carriers as such, nor does itmention them or the statuteswhich give them such power, either in its title or body. It does confer upon the CommisslonersCourt the power to grant such rights to any person, firm, corporetion, which would includeprivate corporation.s, 

### andwhich would cover pr.ivate water, gas, 

### sewer and other priiratecorporations,,andwhich would cover private water, gas, sewer and qtf?er private lines of a local nature. It does not, however, confer upon the Commissioners Court ‘exclusive’ power to grant such., rights.
“The County, **as** hereinbefore stated,, clearly has the.right and power to enforce reasonable regulations in connection with the construction and maintenance of pipe lines crossing its roads, but,it has no right to use its regulatorypower in such manner as to deny pipe lines the right to cross under roads and highways under its control. We are of the opinion that it has no right to demand pipe line companies such as appellee,.engaged in laying inter-countypipe lines, obtain from it a permit or frAnchiss before copstructing crossingsunder such roads. We find no inconsistency or repugnancybetween Articlai 6020, 6022 and 1497, V.A.C.S., as they relate to pipeline companies such as appellees doing an inter-countybusine,ss, and the aforesaidAmendatory Act as it relates to persons and corporationsboth private and public conducting. local business witin the confines of the county.”

-262-Hon. Joe Resweber, page 8 (~-56)

As held in Tennessee Products Pipeline Co., supra, the applicable statutesmust be construed so as to be reconciled if possible. As -_-.-~-~ ~~~-~-

-~ .~~~~..~

~, a pipe line companyhas a right to cross a county road under Articles 6020, 6022 and 1497, it follows that under Articles 7881 and 7918, Fresh Water Supply Districts have a right o.f way ac.rosscounty roads. It .lsthe opinion of th.is.offlce that the Commissioners Court-may neither.

requiresuch..dis,trI.ct. to.obtaln a permit or franchise,nor may lt,,raquira.

such. diqtrict to submitplans and spqclfi.cations of
However, under Articles 6741, 23513 and under Sections limproposed crossingsbefore such district has the.rl t ;;ds; zpss. 4 the Harris County Road Law,.the Cosznlaaloners Court of Harris County is chargedwith the duty .pfgeneral control over allroads and they are authorized tomake reasonableand necessaryrules and orders for working such roads and the maintenance thereof.
Such statutesare either in hopeless conflict or they may be reconciled. This office is of the opinion that such statutesmay be recopclled and that, in,part, quoting from the case~ofTennessee~ Products Pipeline Co., supr.a,.TheCounty.

.. ..clearlyhas the right and Dower to enforce reasonable reuulations in connection with the cons%&&t'iori~and

maintenance of" P&sh Water Supply District storm sewers "crossing Its roads,,,but lt.haa no right to use its regulatory power In such,manneras to dany".Fre$hWater Supply Dlstrlcts "the right to croaa under roads andhighways under its control."

In holding that a water district could be required to bear the expense of lowering Its water lines crossing streets, taken into the llmlts of the Citv of San Antonio after the laying of the.lines, so as to conform to n'ewcity Improvements, In the case of San Antonio v. Baxar MetropolitanWater District, 309 S.W. nex.Civ.App. 199, error ref.), the Court said:

"Themain purpose of roads and streets are for travel and transportation, and while public utllitieemay use such roada~.andstreets for the laying of their telegraph, telephone and water lines, and Sor other.purposes, suchuaes are subservient to the'mai,n uses and purposes of such roads and streets';"

A .likeexpressionwas contained in City of San Antonio v. united Gas Pipe Line Co., 388 S.W.2d 231 (Tex.Clv.App.lgb5, error ref., n.r.e.).

In the case of State of Texas v. City of Austin, 160 Te%. 348, 331 .S.W.26

737, 741, (lgbO), the Court also expressed a like opinion In holding that:

: 263 -. .

.

Ron. Joe Resweber, page 9 (~-56)

It sionera "As pointed.out in theBexar Metropolitan

Water Distric~t

case, the main purposes of roads and streets are 

### for travel and transportation. While public utilities may use the same for laying their lines, suchuse is subject.to reasonable regulationby either the state, the county or the city, as the case may be. The utility may always be required, in the valid~exercise of thepolice power by proper governmental authority, to remove or adjust Its lnstalletion to meet the needs 

### of the public for travel and transportation." is, therefore, the'opinion of this office that the CommisCourt,may,requireFresh:~Water Supply Districts tosubmit plans and specifications to the County Engineer for his approval prior to the actual construction and installation

### of storm sewers, when said storm sewers'are located within the area1 confines of Harris County roads, as it is a~valld exercise of the police power by the governmental agency charged with tha'~duty of control over such roads. It is~::further thel'opinion

of this office that such regulationmay,not be'used by the Commissioners Court so as to defeat the right oi?way,of~the.Fre8.h Water Supply District to,cross suchroads;but that-such regulation and Its use will be,:governed by a standard oft

necesslty..and

reasonableness, from an abuse of which any party would,‘of course, have its redress in court.
ft.is further the opinionof th1.s office that, in ,view

### of the foregoing authorit,ies, had your letter of request.setout, facts indicating the applicability oi Section 1, oi Article 7930-4, as amended, the first question none the less would have been answered in a like manner and as above conditioned.

II.
.,, It is the opinion of this office that your second question shouldbe answered in the negative, Insofar as It relates.to storm sewers of Fresh Water Supply Districts to be located outside the area1 confines of Harris County roads.
The brief accompanyingyour request +zggests,that&ticle 23'72 

### K, Vernon's Civil Statutes, grants to,.t,he Commissioners Court, the continuingpower of regulation, of, or-control over, drainage in subdivisionsafter the authorizationby.the Commissioners Court of the recordation of the subdivisionplat.

:-264-Ron. Joe Resweber, page 10 (~-56)

It is the oplnion’of this office,,asexpressed in Attorney General'sOpinionC-66 (1963),+tthst,Artlcle 2372 Kmu& be consldered in pari -materie with Article 6626, Vernon~s~Glvll Statutes, and that It constltutea a reglStrSti~n statute settingout certain prerequisites $h_at ~w,be requlred,.before a p&at is approved for recordatlon; thatthe Gommissionera. Courtmay not make requirements not therein authorized; and that the itatute does not pur- ,portto grant any owers of regulation by the Commissioners Court after recordatlonehat are different from, or in addition to, the powers they have over any other area ln the county. Commissioners court v. Frank Jester Development Co. 1% S.W.2d 1064, loq (Tex.clv.App.lgb0, error ref. n.r.e.
. Article 67'i'l;Vernon~s Civil Statutes, and Section 14 of the Harris CountyRoad Law, set out.certalnpowers ln the Commissioners Court in regard to drainage and the regulation thereof;but it 1s the oplnlon 

### of thiS.OfflCe that such statutes also must be read ln conjunctionwith Articles 7881 and 7g18,grantlng certain powers to Fresh Water Supply Districts.. If the CommissionersUourt had the authority to **require** its **prior** approval of a Fresh Water Supply District storm sewerplans and specifications enerally, suchwould in effect nullify the provislcns of Articles 7881 and 7918.
Therefore, it 1s the opinion of this office that insofar as 1ands~i.nsubdlvlsl~s,~outslde the area1 conflnes 

### of. county roads, are concerned, the .Commlsslonera Court.18 without authority to require that a Fresh Water Supply District submit to the. County Rngineer its plans and specifications of proposed storm 

### sewersfor his approvalprior to the construction thereof. Fresh Water Supply District storm 

### sewers,to be placed within the area1 confines of county roads within subdivisions, would be governed by the same laws.as storm sewerswithin the area1 confines of :ounty roads not within subdivisions,and the question as to the,prlor submission - of suchplans and speciflcatlons to the County Engineer for his approval.wouldbe included within, and answeredby, the answer to your first question.

III.

It is the opinion of this office thatyour third question shouldbe answered in the nega~lve, for the same reasormas set out in.inswiw to your second question insofar.68 such-answerapplies to lands ln subdivlslons,but outside the area1 confines of county roads

IV.

We are not author1ze.d to,..answer

your'fourth question, as it appears that the subjectmatter,thereof does not cqpcern the Com- ,missionersCourt and you can only advise said Court on~matters concerning it's official duties.. 1,

.

Hon. Joe Resweber, page 11 (n-56)

SUMMARY

A Fresh Water Supply District may construct storm sewers necessary to,

a.coomplish

a plan of conservationof .freeh water. The Harris County Commissioners~ Court,may require that plans and spaciflcatio?is of such distrlctlsstorm sewers,.

that..are

to be located within the weal confines of,Harris,

County roadsjbeg, submit.te,d.

tomthe..

CountyRnginee,r

prior to the construction thereof.; but .may.not require suchplans and specificationsto be,. submitted in situationswhere the storm sewers are to be located in subdivisiona,“outsidecity~limits and not within the area1 confines of c’ounty roads; and nay not require the submlselonof such plans when ~the~stom $awera era tobe built on private property located outside city limits. V#jJ tnily yours,

Prepared by 

### Harold 0. K.wedy Assistant Attorney General RGiC:bp

APFaovKD: OPIRIOR COMMITlcEE
Hawthorne Phillips,,Chai~rman W. V. Geppert, Co-chairman Roger Tyler Houghton Brownlee,Jr. pJ:kBg;;;

STAFF LRGAL ASSISTANT A. J. CARURRI, JR.

-266-

t