GENERAL 

Hon. Joe Reeweber ~'. 

County Attorney 

H+rrie County Courthouse 

Houston, Texas 

Dear Mr. Remeber:<' 

Opinion HO. ~-56 

Re: Whether the Commissioners 

Court of Harrta County may 

require that plans and 

speclflcatlons of storm 

sewers of Fresh Water Supply Districts be submitted 

to the County E@neer, 

for hi6 approval, prior 

to conefi~ctlon of such 

8ewer6 when the storm sewers 

are to.be locs~~d,wl.th.in~ 

the area1 ccipfinee of Barr16 

County, made; ln '.~.ub~$~:aj.on

not within. cities;,. ind...qy 

p+i@j*, pTopeyty not within 

clt,lea; ,md whether T,exas 

watqr Rlght6 Conrmfssion hq6 

any,au$horlty t~i&xf?rdise, 

supervisory pates ti+Fr,mch 

d&~&,r%cte during the, cpnBtrQctlon and~maintenance 

Of .su'dh StOl’kll 6eWer6. 

Your request 'ior an opinicin of this office present6 the following questions: 

"1. WIðer or not themComm&a~ioners'Court can requipe 

that plane and specifications be eubmitted to'the 

County Engineer for his approval.,by the Fresh Water 

Supply District p+pr,.to.$he actual construction and 

installation of storm sewerg, when said storm sewers 

are located within 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 approval by 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 subdivisions being located outside City lititS? 

“3. 'Whether or not the Commi,sgi.oners Court can 

require that plan6 and spacifiCat$ons be 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 land6 being located outside city limits? 

“4. Does the Texas Water Rights Commission (formerly 

Board of Water Engineers) have any,authorlty to 

exercise any type Of SUperViSOry power over the fresh 

water 6Upply diStriCt6 prior t0 or during the construction and maintenance of storm sewers?" 

Theanswef to~~your questions is dependent upon whether a Fresh 

Water Supply District is authorized to construct stcrm sewers; 

therefore, consideration shall first .be given to such determination.. 

Article 7881, Vernon's Civil Statutes, in part, provides: 

'There may be created within this State conservation districts co be known a6 Fresh Water 

Supply District6 for the purpose of conserving, 

transporting and di6tributing fresh water from 

fakes, pOOl6, reservoirs, wells, springs, creeks, 

and rivers for domestic and commercial purposes, 

as contemplated b 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 Improvements within and 

without such district necessary to aCCompli6h 

any plan of conservation, transportation and 

‘distribution of 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 created under the provisions of Chapter 

4 of Title 128, Revised Civil Statutes, of,Texaa, 

1925, as wended, in addition to the powers heretofore 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 communal wastes provided no other public sanltary sewer 6yatem Is available for the area contained ln such Fresh Water Supply District, and 

the powera,herein provided are not.eXerc5.6ed except after a duly called election held In the same 

manner as other election6 of Such water district 

ae provided by law." 

Your letter does not indicate that "no other public sanitary 

sewer system is available for the area” nor does It show that an 

election as provided In Article 7930-b has been held; therefore, 

the applicability of said Article 7930-4, not being shown, we must 

look to Articles 7881~and 7918 for such authority. It is the opinion 

of this office that Fresh Water Supply Districts have 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 ~tp d.ivert the storm waters from.,the reser.volr or other 

.water source so .a8 to avoid pollu.~jot~,- cont+m~atlon, eta*, or 

whether they are used to more efficiently route the storm water6 to 

the lake, reservoir orother water source. This oplnlon is wrltten.upon the presumptionthat the storm sewers mentioned in your 

letter are to be built for one or both 6uch purposes. 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 communal wastes." 

I. 

It is the opinion of this office that the Commissioners Court 

may require that plans and specifications be submitted by 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 commlssloners court may 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 conflict with the 

laws of this State. . .n 

Article 2351, Vernont6~Clvll Statutes, enacted in 1911, provided, In part; .as follows: 

"Each Comml66loner6 Court shall: 

11 

. . . 

“6. Exercise general control over all roads, 

hlghtiay6;ferrles &nd bridges In their counties." 

The Harris County Road Law, Acts 33rd Leg.,1913 Special Laws, 

ch. 17, p. 64, provides, In part, as follows: 

"Section 1. That, subject to the provisions 

of this Act, the commlssloners court of Harris 

County shall have 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 otit or COnStruCted by Harris County, or 

under Its direction. 

'Section 2. Subject to the provisions of 

this Act, the commlssloners court of Harris 

County shall have the power and right to adopt 

such rules and regulations for the proper 

construction and malnten&nce of Its roads, 

bridges and drainage as it may see proper, 

and shall have power from time to time to add 

to, alter, repeal or amend same;. . .n 

1, . . . 

"Section 33. The provisions of this Act are, 

and shall be, held and construed to be cumulative of all General Laws of this State, on 

the subject6 treated in this Act, when not in 

conflict therewith, but In case of such conflict this Act Shall control as to Harris County. 
Ron. Joe Resweber, page 5 (~-56) 

"Section 9. Any and all laws and parts of 

laws in conflict with any oi the provisions 

this Act ShEd.1 be, and the same are hereby 

repealed." 

of 

Fresh Water,Supply Districts have 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 their previous 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 improvements across 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.the purpose of securing the fresh water 

supply necessary 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 ~the Commlss+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 ivlder their 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 franchise prior 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$atatutes must 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.s It ma4 e agy mention of,..... 

Artlciee '&X?O, ,022.kid..e* $ gT'el$jk In the-title 

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 .Articlea 6.02?,,. 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&lon 16 that~in enacting a new 

law the legislature Intended the old statute to 

remain In operation.'" 

I) 

. . . 

"The Amerknent 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 Amendatory Act Is a 

new section known as '7-A.' It provides In pert 

that the Coaa6lsslonera Court of Harris County 

shall have the power to grant to any person, 

firm or corporation en easement or right of way 

over, along, or across anypublic road or highway In Harris County and under the JurlsdIctlon 

of the CoaakIsaIoners Court In Iierrls County, 

outside of the llmlts of any Incorporated city 

or town. Such section then-provIdes,certaln 

terms end COndi~ion6 under which such person, 

etc., she11 use or occ,upy the 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 shall be granted when it Impedes or seriously Interferes~wlth the use and 

occupancy of such public thoroughfare as such, 

nor shall it be granted without adequate provision 

for the protection end repair o? the road or 

thoroughfare by suitable bond." * 

II 

. . . 

- 261 - 
Hon. Joe Resweber, page 7 (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 it mention them or the statutes which give them such 

power, either in its title or body. It does 

confer upon the Commissloners Court the power to 

grant such rights to any person, firm, corporetion, which would include private corporation.s, 

and which would cover pr.ivate water, gas, sewer 

and other priirate corporations,,and which 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 regulatory power 

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-county pipe 

lines, obtain from it a permit or frAnchiss 

before copstructing crossings under such roads. 

We find no inconsistency or repugnancy between 

Articlai 6020, 6022 and 1497, V.A.C.S., as they 

relate to pipeline companies such as appellees 

doing an inter-county busine,ss, and the aforesaid Amendatory Act as it relates to persons and 

corporations both 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 

statutes -_-.-~-~ must ~~~-~- 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.ross county roads. 

It .ls the opinion of th.is.offlce that the Commissioners Court-may 

neither. require such..dis,trI.ct. to.obtaln a permit or franchise, nor 

may lt,,raquira. such. diqtrict to submit plans and spqclfi.cations of 

However, under Articles 6741, 23513 and under Sections 

limproposed crossings before such district has the.rl t ;;ds; zpss. 

4 

the Harris County Road Law,.the Cosznlaaloners Court of Harris County 

is charged with the duty .pf general control over all roads and they 

are authorized to make reasonable and necessaryrules and orders 

for working such roads and the maintenance thereof. 

Such statutes are either in hopeless conflict or they may be 

reconciled. This office is of the opinion that such statutes may be 

recopclled and that, in,part, quoting from the case ~of Tennessee~ 

Products Pipeline Co., supr.a, .The County. . . ..clearly has 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,manner as to dany".Fre$h Water Supply Dlstrlcts 

"the right to croaa under roads and highways 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'ew city Improvements, In the case of 

San Antonio v. Baxar Metropolitan Water District, 309 S.W. 

nex.Civ.App. 199, error ref.), the Court said: 

"The main purpose of roads and streets are for 

travel and transportation, and while public 

utllitiee may use such roada~.and streets for the 

laying of their telegraph, telephone and water 

lines, and Sor other.purposes, such uaes are 

subservient to the'mai,n uses and purposes of 

such roads and streets';" 

A .like expression was 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 the Bexar 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, such use is 

subject.to reasonable regulation by either 

the state, the county or the city, as the 

case may be. The utility may always be required, in the valid~ exercise of the police 

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,require Fresh:~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 

regulation may,not be'used by the Commissioners Court so as to defeat the right oi?way,of~ the.Fre8.h Water Supply District to, cross 

such roads;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 

should be 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 accompanying your request +zggests,that &ticle 

23'72 K, Vernon's Civil Statutes, grants to,.t,he Commissioners Court, 

the continuing power of regulation, of, or-control over, drainage 

in subdivisions after the authorization by.the Commissioners Court 

of the recordation of the subdivision plat. 

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

It is the oplnion’of this office, ,as expressed in Attorney 

General's OpinionC-66 (1963),+tthst,Artlcle 2372 K mu& be consldered in pari -materie with Article 6626, Vernon~s~Glvll Statutes, 

and that It constltutea a reglStrSti~n statute setting out certain 

prerequisites $h_at ~w,be requlred,.before a p&at is approved for 

recordatlon; thatthe Gommissionera. Court may not make requirements not therein authorized; and that the itatute does not pur- 

,port to grant any owers of regulation by the Commissioners Court 

after recordatlon e hat 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 County Road Law, set out.certaln powers 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 

conjunction with Articles 7881 and 7g18,grantlng certain powers to 

Fresh Water Supply Districts.. If the Commissioners Uourt had the 

authority to require its prior approval of a Fresh Water Supply 

District storm sewer plans and specifications enerally, such would 

in effect nullify the provislcns of Articles 7 88 1 and 7918. 

Therefore, it 1s the opinion of this office that insofar as 

1ands~i.n subdlvlsl~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 sewers for 

his approval prior 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 sewers within the area1 confines of :ounty roads 

not within subdivisions, and - the question as to the,prlor submission 

of such plans and speciflcatlons to the County Engineer for his 

approval.would be included within, and answered by, the answer to 

your first question. 

III. 

It is the opinion of this office that your third question 

should be answered in the nega~lve, for the same reasormas set out 

in.inswiw to your second question insofar.68 such-answer applies 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 subject matter,thereof does not cqpcern the Com- 

,missioners Court 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 conservation of .freeh 

water. The Harris County Commissioners~ Court,may require 

that plans and spaciflcatio?is of such distrlctls storm 

sewers,. that..are to be located within the weal confines 

of ,Harris, County roadsj beg, submit.te,d. tom the.. County Rnginee,r prior to the construction thereof.; but .may.not 

require such plans and specifications to be,. submitted in 

situations where the storm sewers are to be located in 

subdivisiona, “outside city~ limits and not within the 

area1 confines of c’ounty roads; and nay not require the 

submlselon of such plans when ~the ~stom $awera era to be 

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