.       .
    .
                                                                      899


                  OFFICE OF THE A’ITORNEY        GENERAL   OF TEXAS
                                        AUSTtN




            Bonorahle W. P; Efma,     Jr.
            County Auditor
            W8ller county
            Reqw bad, lbxas




                 as vell   a~~public interest.
                                                                              900



        Ro~orable W.   P; Berms, Jr.,   Page 2
                                        .

                    We wLl1 not decide the questign of whether the
        rice   famers haV,e biilt tie levee in question vron@ally  or
        negligently or vhether the building of said levee has rem
        sulted in floods on other peoples’ land, but for the pur-
        pose of your yestion    Ye will only discuss what action the
I       Coumfsslonero Court can take In the event said levee has
        actually been constructed so as to ~3~33 flooding to the
        oounty roads and otbeer peoples@ land vlthout the .consent
        of’ ‘the custodians and owners of said roads snd lands.    .
             .I        He assme that the lkee In question wa3 made by
         the rice fsrzers as en irri&3on          lmprovenent to aid then
8.       in irrigating tholr rice lnnb,          ?%3mfo’r~, Article 0028,
         Revlssd Civil Statutes of Texzs, which provides for the
         regulation of the building of levees, does not’ apply, be-
        ,cau38 It contains a provialon as follovsr
                       a’, .i i , ~Provided, that the pr&lsions
                 of this section shall not apply to dam, oanals
    I            or other.kttprovenents uade or to be made by ir-
                ~rigntion, vater improverjents or lrrljjstlon     in-
                 provenents nade by Lndlviduals or oorporatlons.’
           :       .__ The Fight of the’nei@borlng     farmers for Fedress
         of thebr Injuries as a result of the flood3         catised by the
         byild~      of. said levee is a prLsate right; and the State
         and its politic,al     subdivisions,   such as Counties, cannot
         prosscute aotions for the protection of private rights.
         The State has~created courts Ln which the rights of per
         sons and ‘ropertp can be protected and disputes betweeil
         oitizens Eitigated.       A citizen who believes thst his pro-
         perty &s .bsen injured.because of the yrongul aot of
         another ,ahould go into court and brti?; the proper action
         to re,dress~the’ufong done to bin.        The State will not
         bring .the s&Ion f6r Nn.          In 53 Corpus Juris. 324 it aagst
                    'I . . . . a state is     neither a neceesaq
               nor proger party pkintiff       to a civi& actl.oa
               vhLch~lnvolves aerely   tfie   protection of a pri-
               vate right or the rdreas       of a private wrong,
               in which the ststo or tile     puhlio is ti 110 w8y
               interested . .,. ..”
                                          .


                                                      __
                                                                   901


EoAorable If. P, Hems, Jr., Pa@ 3
             :2,           >,

            If the State’s groyerty is injured,or 8 publ.Lo
vrong is coxmlttsd, by sorreone the State can go into court
and prosecute an action, but it cannot prosecute an action
to redress a private uroq..      IA the cabe of Ex psrte Xrlghes
133 Tex. 505, 129 3.W. 2nd 270, the Suprane Court of Texas
raid)             -,        .
            b . . . . The State caq go to court to
      enforce its own property or 01~3.1 rig&a, and
      the prqcrty    or oivil riii;hte of the public Fn .
      SeAoral.   By public in general ia near& the
      entire public, not mersly ri&ts of interest
      to BOIMparticular group, evm though ttit.
      group nsy be of large proportiom.”
           in the case of Jeffereon County Dr&?age Disk
Ho. 6,~. Southvell, 32 S.W. 2nd 895, it uas hold that a
draInage district   could not nzintaLn a quit to abate a
nuisance caused by a dzxnbuilt by lndivLduols and which
only iajured nearby landowners, but that~ orJy safd in-
jured land,ouners could maintain such suit.
                   .-
           Beoausk of the foregokq   reasons, vir are of the
op%nlon that the Comaisslonerst Court has no authority to
take xaq action because of the “flooding of a nmber of
fanners as a result of the build&q of said levee.
           OA the qusation oomerdng the floodlcg of the
county.roads,  ve me of tha optiioa that the Commissioners’
Court can take some action.
            Article 2351, Revised’ Civil     Statutes of Texas,
provides   I.n part as followa:
            “&ch co*ssl,oners    co&t      shall-i
            ‘I
                 . l   . .


           “6.   aercise  genmal control over all
     roads; high-days, ferries and briees   in thcir~
     CouAtloa*                            :
           tl.. l .  ln
                                                                       902



Honorable Vi P. Hems, Jr.,      Page 4
                                                     ..


The authbiity of the Comissio~ers’ Cotits vhich arises by
virtue of the powers co;lferred u?on tima by tho Legislature
%a expressed ,in 11 Texas Jurisprudence 565, 566 as ,follous~
                   .
         .~ 9 ..l’in
                   th eCo unty
                             Co sllllssla Aer
                                           c os
                                              ur
                                               ’~t
     -is the active governing body OS the county,
      with 8 juriadictlo~   that touches $.n soze res-
      poat alzost ever7 featum of the ‘county’s
      buslnass, and the court hse full and ,gemral
      charge of the buslnoss affairs of t’ne county.
      ., . . . Anti it is held that the comissionera’
      courts have lzzpllsd euthority to da what my
      be necessary in the exercise of the duties or
      pdrers conferred UBOAthm,”
%W& authority lnoludes the filing          of! suits, if necessary,
in orc?er to carry out their povors.          Sn the case of ~ooecan
v. County. of Earris, 58 Tex. 511# the court sa1.d:
                                            .
             “The comslssloners~ court, prcsldid over
      bi'the Counts Sudae.   - _ is VirtuallY a council
      vegted with polar to mnage         and hircct all such
      msterlal aa f33i3ncirrl Interests of the county
      as the laws ,of the stats have confided to its
      jurisbiction.        TUGcaao~exmt of’ the fimr~eial
      affairs of the coyty hme always heretofore
      been vested in tribunals vfrich have existed st
      different     tines under vsrl.ous mms and desig-       ..
      nations,    such as county court, com%esZonors’
      court, etc.; they have, however, all been
      alothed with similar powers, and like &ties
      have been tipo?ed upon then. The cmlssloners~
      oaurt undoubtedly has tha right to cause stits
      to be instituted       in the nme of snd for the
     .ba?er”lt of the coimty, and except where a aon-
      current rQjht to do the 3am thin& or whore
      an exclusive right in a specified case or oases
     ‘is conferred upon tcm othor tribunal or som
      other officer      of the govemmnt, the COX&-
      sioners’ court must be decned to be the quasi
      executive head of the county, vested with ex-
      oluslve power to deternine when a suit shall
     be instituted       ti the nme of and for the bene-
      fit of the count$.n
                                                                903



Eanor8ble W. Pr Eems,          Jr.,   Pa3e 5


To~the     sea8 &feat is the holding of the aouzt in the case
ot.Brite     v, Atasaosa County, 247 9.W. 878, in whXoh it MS
aaid:
             s   ..“’  The statute (article   1365) ex-
     ~pressly’~&~s*eac’i    county a body-cozporste and
      polltic,   and as such it unao-.iXmIly ha the
     ‘paver sod 4utoority to Institute suit3 2nd
    ,’&fed     a&nat   those brought a@.nst it.     The
     iComtitut2on of Texas reco;;nizes domties as
      muniaipal.corporations    along vith cities end
    i to u x ls   . . l   .’


           As the.Comissioners*   Court hes control over the
camit* rozds a?d 4s said court hzm tha lqlied     authority
to do vhxt is necessary ti order to aarry out the powers
aonforred upon it oven to the extent of institutirq     suits
in the nem of a.pd.for tlm bezcfit of the comty, we see
no ressoz w*hythe Comisaiomr3~     Court could not tisti-
tute a suit to prevent 4n unlcvful i&m?femme with the
county roads.   xn 25 &mdcan ~~~ioprum~ce 618 t’ais par-
tiaular subject is discussed L~Iwoqda as follows:
            ‘Injumtion    oxL?.mrily lie* at tho suit
      of the proper public authorities      to prevent
      8.u un14wrful obstruction of or encroacixmt
      upon a publtc w4y uixLchlnterfemg~with       the
      enjoyment of the public rl@t,      to prGvG3.t the
      creation or ~alntexnce      of a nuisance th?srein,
      or to congcl the removal or ab4tezent of such
      83 obstruation,    enc,no4chzent, or nuiszi~ae. A
      govermental agency which owns the fee of the
      atreet’or   othep hishmy imy also, in 4 propeP
      case, naimh3.n .an action to enjoin 311mlzmr’ul
      obstpuotlon thereof, upon the grmi~3 that suoh
      obstructions mounts to a tresp,css . . . .’
In the recent case of State v. Dickey, 158 S.Y. ad 894, the
State brought s-tit against ILLLtiividu?l31 fo? dzmging a .
bridge on a highvay controlled by the State through its
State Hishvoy Departuent.
i   I.     .
                                                                            904




                     our ansver to your inquiry is th3t the Coz!mlia-
          rlmers’ Court of Yaller Comty ha5 no authority to take
         amy actio?l on be:&%lf of the famers vhooe lfinds have )oen
          Slooded 08 a result of the building of tba lovae by other
         parsons . Scid finer8    are entitled to t&e action on their
         ovn baslr.     Ho*mver, it IS o'ur further enwer      thzt the
         Coixtlssioner~~ Court Is e'lltltlcd  to Lnstltute    suit ln the
         none of and for tho benefit of the county to enjoin the
         msintdning of said levee In a imnner       %hat   Vi11 cause
          flooding of the county rocds.    OS course, ue are not indi-            ..
         catlng the outcozm of such a suit, becmxi that vi11 dc-
         pend onth3    fact8 that are dovelopd during the trial.



                                            ATTORiQY02iX2R&L
                                                           OF !iXXAS
