 .   .




                   AaerSTXX.



                         May 20, 1970

Honorable Harvey Davis          Opinion No. M-633
Executive Director
Texas State Soil and            Re:     Authority of County
  Water Conservation Board              Commissioners to authorize
1018 First National Building            flooding of public roads,
Temple, Texas 76501                     and related questions.
Dear Mr. Davis:
          In your recent letter you have described briefly
the role of the Board in implementing the construction, with
federal aid, of small flood control projects, and have ad-
vised us as follows:
          "There are occasions when it is desirable
     to construct flood control structures in locations
     which will temporarily inundate a road or highway
     during periods of heavy rainfall, It has been
     customary for counties to grant permission for
     county roads to be temporarily inundated where
     alternate roads are available and where flooding
     is rare. This seems to be the practical situation
     in many cases rather than permanently closing a
     road or raising a road.
          "The Office of the General Counsel of the
     United States Department of Agriculture has
     raised a question as to the authority of the
     Commissioners Courts to temporarily close a
     road or to give permission to some other politi-
     cal subdivisions sponsoring flood control programs
     to inundate roads which by necessity would
     temporarily close the road. Therefore, we
     request an opinion from your office of the
     following questions:
          "1. Do the County Commissicners have the
     authority under the laws of the State of
     Texas to,grant either to the County or other
     political subdivisions of the State the right


                               -3029-
Hon. Harvey Davis, page 2 (M-633)


    or permission to flood a road within their
    jurisdiction thereby temporarily closing the
    road.
         "2 . If your answer to question No. 1 is af-
    firmative, what is the proper procedure for the
    County Commissioners to grant such right or per-
    mission to flood a road?"
          Canales v. Laughlin, 147 Tex. 169, 214 S.W.Zd, 451,
453 (1948) is authority for the holding that the commissioners
courts have a broad discretion in exercising constitutionally
or statutorily conferred powers and the question to be con-
sidered is whether a particular power is conferred upon such
courts either "expressly or by necessary implication."
          In accord, Rowan v. Pickett, 237 S.W.2d 734 (Tex.Civ.
App. 1951, no writ); Prichard & Abbott v. McKenna, 350 S.W.Zd
333, 334 (Tex.Sup. 1961); Attorney General Opinion No. M-605
(1970).
          In Anderson v. Wood, 137 Tex. 201, 152 S.W.Zd 1084
(1941), the Supreme Court herd that:
          "Where a right is conferred or obligation
     imposed on said court, it has implied authority
     to exercise a broad discretion to accomplish
     the purposes intended."
          The Court said in Stoval v. Shivers, 129 Tex. 256,
103 S.W.2d 363 (1937) that:
          "The duty of the commissioners court is to
     transact ,thebusiness, protect the interest, and
     promote the welfare of the county as a whole."
           In Parkey v. Archer County, 61 S.W.2d 175 (Tex.Civ.
App. 1933, error refused), the Court said that the commissioners
court may,
          "upon their initiative, order the laying
     out and opening of public roads when necessary
     and discontinue all or any roads when it shall
     be deemed expedient," citing authorities.
     IEmphasis added.)




                             -3030-
     .




Hon. Harvey Davis, page 3 (M-633)


          In 40 C.J.S. 213, Highways, Section 218, we find the
following statement of the general rule:
          "Not every obstruction to the use of a
     highway is illegal. Public highways are sub-
     ject to such incidental or partial~obstructions
     as necessity requires provided they do not un-
     reasonably interfere with the rights of the
     public and are not unduly prolonged."
          The cases cited for this statement dealt with ob-
structions brought about by non-governmental entities, but
the same reasoning should equally apply to an obstruction
by a governmental entity clothed with general authority to
discontinue highways and with general control over them.
          The reply to your question then turns on whether
statutory authority, properly construed, permits the commissioners
court to allow the occasional flooding of a county road in
such a manner as to render it temporarily impassable.
          Article 2351, paragraph 3, Vernon's Civil Statutes,
is a general grant of authority and authorizes the commissioners
court to
          "Lay out and establish, change and dis-
     continue,public roads and highways;"
and under paragraph 6 of the same article the court is empowered
to
         "Exercise general control over all roads,
    highways,,,
              ferries and bridges in their counties."
          Article 6703, Vernon's Civil Statutes, reads, in part,
as follows:
         "The commissioners courtshall order the
    laying outland opening of public roads when
    necessary, and discontinue or alter any road
    whenever it shall be deemed expedient. No
    public roads shall be altered or changed except
    to shorten the distance from end:to end, unless
    the court upon a full investigation of the pro-
    posed change finds that the public interest will
    be better served by making the change; and said


                             -3031-
Hon. Harvey Davis, page 4 (M-633)


    change shall be by unanimous consent of all the
    commissioners elected. No part of a public road
    shall be discontinued until a new road is first
    built connecting the parts not discontinued; and
    no entire first or second class road shall be dis-
    continued except upon vacation or non-use for a
    period offthree years." (Emphasis added.)
          We are of the opinion that in the light of the cases
and statutes herein discussed there is statutory authority
for the commissioners court to discontinue temporarily part
of a public road, provided the applicable requirements of
Article 6703 are met, and that the court's discretionary
power under said cases and statutes is broad enough that the
court may,by unanimous consent, electto allow.the
         of a county road and the resultant
%%%nce      of that road if but only if, the court finds that
the public interest will be'better served, and only if the
court provides and maintains a suitable alternate road. Other-
wise, the county commissioners,would have no authority to flood
a road within their jurisdidon,   temporarily closing the road
without providing an alternative road.
          Your second question inquires about the procedure
to be followed in granting authority for the temporary flood-
ing. In answer thereto, you are advised that the entry of
the commissioners court order, granting such authority, in
the Minutes of the Court, should suffice.
          Your third and fourth questions concern purely
hypothetical questions on which this office normally expresses
no opinion,
                       SUMMARY
          The commissioners court may, by unanimous
     consent, elect to allow the temporary flooding
     of a county road and the resultant temporary
     discontinuance of that road if the court follows
     the applicable provisions of Article 6703 and
     finds that the public interest will be better
     served thereby and provides and maintains a suit-
     able alternate road,




                                          eneral of Texas
                            -3032-
 .   .




Hon. Harvey Davis, page 5 (M-633)


Prepared by James S. Swearingen
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor;Chairman
W. E. Allen, Acting Co-Chairman
Sam Jones
Austin Bray
Gordon Cass
Dyer Moore
MEADE F. GRIFFIN
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant




                             -3033-
