Case Information
*1 The Attorney General of Texas December 18, 1981
MARK WHITE
Attorney General Opinion No.MW-412 Honorable Mike Driscoll
Supreme Court Building Harris County Attorney P. 0. Box 12546 Re: Authority of county flood 1001 Preston, Suite 634 Austin. TX. 76711 Houston, Texas 77002 control district to lengthen 5121475-2501 Telex 910/674-1367 private bridge crossing Telecopier 5121475-0266 channel widened by district Dear Mr. Driscoll: 1607 Main St., Suite 1400 Dallas, TX. 75201 2141742-6944
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 4624 Alberta Ave., Suite 160 first ask us to assume that the district has previously approved the El Paso, TX. 79905 construction of the bridge across its easement and that the district 915l533-3464 now proposes to widen the channel. 1220 Dallas Ave., Suite 202 The Harris County Flood Control District, a district organized Houston. TX. 77002 under article 16, section 59 of the Texas Constitution, was created by 713/65M)666 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 606 Broadway, Suite 312 districts. It provides: Lubbock, TX. 79401 6061747.5236 (a) If any district or authority organized
under the provisions of Article III, Section 52, 4309 N. Tenth, Suite S [51216624547] McAllen, TX. 76501 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 200 Main Plaza. Suite 400 San Antonio, TX. 76205 construction of any highway, railroad, electric 512l2254191 transmission, telegraph, or telephone lines,
conduits, poles, properties, facilities, or pipelines, the relocation, raising, lowering, An Equal Opportunity/ rerouting, or change in grade or alteration of Affirmative Action Employer
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 (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 (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