                                                                           253


        OFFICE   OF THE ATTORNEY     GENERAL   OF TEXAS
                            AUSTIN
OROVER
     SELLERS
ATIORWEY
      GCNERAL

Hon. Jos. B. Dart
County Attorney
Kansndall
        County
Boere, Texas
Dear Sir:                 Opinion No. O-7486
                         &I:   (1) If a County commissioner~~
                                   Court in faot     98 an order




                                             the     construction   axii
                                           nanoe     thereof?
                                          oontraot between the %m-
                                           ners* Court and an indivi-
                                           whereby the Court oontraota
                                     to ekppendpubllo funds for ao-
                                     qulsltionand maintenance of a
                                     Utah for benefit of a private
                                     individualto prevent washing of
                                     property, such a contraotwithin
                                     the scope of what c:ouldbe termed
                                     county business?




         “A man by the name of H. R. Remsen owns-a/small
    tractor land lying partly in Kendall County and partly
    in the adjoining Kerr County, Hera this property lies
    there 1s a natural overflow during heavy rains $nz ;tk
    property was subject to disastrouswash outs.
    missioners of Kendall and Kerr Counties got togetherand
Hon. Jos. B. Dart - Page 2


   constructeda drainage
                 _.. .    ditch aoross
                                -.    .Mr. Remsencs place.
   At times this ditch was wol%ed by t&a two oommlssioners
   in whose precin ts it lies. Finally, in 1924, %.
   Remsen prevaile8 on the Commissioners'Court of Kendall
   County to purohase this ditoh fran him as he wanted to
   bind the county to keep it in conditionto prevent fm-
   ther erosion of his land.
           "The deed was made out to 'J,A. Phillip, County
   Ju2ie;? Randall County, 'I'exas,  and his 'successorsin
               Judge Philllp is now dead, but our present
   County Judge, B. H. Balser, was then one of the county
   commissioners not, however of the preoinotwhere this
   ditch lies, 'fheoonsiderationgiven in the deed was
   we7.12.   After the description in the deed the following
   proviso was made: *It is expressly understoodthat the
   strip of land herein oonveyed %a to be used by the
   County for a ditoh to take care of flood water now over-
   flowing the Comfort-Kerrvillehighway and the County
   agrees and binds Itself to forever keep the ditch fran
   oaving in and doing damage to grantors'property.'
          *The ditch has not been taken oare of for acme
  _ years and the cave-in ad danmge antioipated in the deed
    is taking plaoe to the extent that Mr. Remsam has threaten-
    ed suit against the County for damagea Sotifailure to keep
    its oontraot as worded in thedesd.
         "There is no entry in the Commissioners'Court
   minutes authorizingJudge Phillip to purchase this pro-
   perty and no authorizationto entm into this maintenance
   agreement. There is, however, among the blanket approvals
   of claims filed one in which the       was authorized to
   pay the claim of H.R. Remsen for         but no explana-
   tion of what the payment was for. his approval entry
   was made Feb. 11th. 1924, and the deed was dated and filed
   with the County Clerk on the same day.
         Wr. Gus H. Lindner, who was then commissionerof
   Precinct Four, where the ditch is located, says that the
   matter was consideredby the Commissioners1Court and
   i&at the County Judge was authorized to purchase the land
   and make the contract, but Judge Palser has no~reoolleotion
   of this.
                                                                  255




Hon. JOS. B. Dart - Page 3


          "Art. 2349, Civil Statutes, provides that 'the
     clerk shall also record all authorized proceedingsof the
     court between terms; and such record be read ati signed on
     ;htedfiSstday of the term next after suth proceedingsoo-
          .
         "Art. 3, Section. 52 of the Constitutionprovides that
    'The Legislature shall have no power to authorize any county,
    City, town or other political corporationor subdivision a?
    of the State to lend its credit or to grant public money or
    thing of value in aid of, or-to any individual,etc.'
         'FbLhmwingArt. 2349 in v,A. Statutes there are several
    quotationsto the effect that a failure to enter the order in
    the minutes did not make the order void but same may be proved
    by parol testimony.
         "If it is correct that the order need not be entered of
    record and can be proven by par01 evideneelthen the question
    arises: was the ,ordermade by the CommisslonerstCourt one
    which was authorized by the Con&itutionand the Statutes.
    The contract to vizpend#ablio funds for aaqiuisitionand main-
    tenanoe of s;,ditch for benefit of a private individualto
    prevent washing of property is clearly not one within the
    soope of what could be termed county or public business.
         *It will be notioed that the latter part of the m&n-
    tenanoe agreement states that the land therein oonveyed is
    to be used by the County to take care of flood water now
    overflowingthe Comfort-KerrvilleHighway, In 1924 the
    Comfort-KerrvilleRighway was an ordinary county road, and
    as such the County Comiss%oners * Court had the authority
    to apportion the ,Roaaand Bridge Fund among the differe@
    commissionersfor the 'purposeof maintainingand keeping the
    county road and to give them suoh protectionas needed in
    cases of overflowing. If the purpose of this deed end oon-
    tract was to protect the roaa from ovdrflow and washouts
    then it would be within the authamity of the county to
    purchase suoh land ss was necessary to prevent these-over-
    flows ati maintain thereon a drainage ditch and to pay for
    same out of the Road and Bridge Fund,
         "I hope I have not enoroaohed on your patience too muoh,
    ard would greatly appreciate it if you w0uia give me your
    opinion as to the correctnessof my 00n01uSi0n8~"
                                                                 ,256
Honorable Jos. B. Dart - Page 4


        We have, we hope, in the interest of clarity, formulated the
four legal questions hereinbeforecaptionedand believe our answers
thereto solve the legal problem8 confrontingyou in the given eitua-
tion.
        We answer question Number One in the negative and cite the
following oases in support thereof and quote from the syllabi of such
canes to show the Courtls holding. .%ommissioners*Court's order need
not be irpreadof record on minutes to be valid.' Brooks v. Frio
County, Civ. App., 28 S. W.,(2) 1107. "While the statute (Art. 2349,
V.A.C.S.) provides that record shall be.made of proceedingsof Court,
the fact that no order appears upon &utes of Court does,,notauthorize
holding that election was void for want of proper order. Ewing vs.
Duncan, 81 Tex. 230, 16 3. W. 1100. "Order of Commissioners1Court L
that has been acted upon by parties for several years is not void be-
cause not entered u on minutes of Baid court." Waggoner vs. Wise
County, Civ. App., fi
                    3 S. W. 836.
        The provisions of Article 2349, R.C.S., referred to in your
letter are directory and not mandatory. Landa va. State, Clv. App.,
131 S. W. (2) 321. In this connection,we refer you to Gordon vs.
Denton County, Clv. App., )8 S. W. 737, holding that "Where there is
sufficientevidence denying that order was made by ~ommissioner18
Court, isaue should be submitted to jurg to deoide. This ffordon
vs. D8ntoq County Case aleo holds that the burden of proving that an
order was passed by the Co~issioners I Court rests upon a plaintiff
olalmin rights thereunder. It is elementary that if the commis-
sionerseiCourt minutes fail.to refleot an order passed by such Court
the same may be amended by a motion of some one or more of the Com-
missioners to show Such order.
        We answer question Number Two in the affirmativeand.cite
Brook8 vs. Frio county, supra, holding that "CommissimerslCourt's
order need not be spread of record on minutes to b; valid, but, if
properly passed, MAY BE PROVED BY PAROL TESTIMONY.
        We answer your question Number Three in the affirmativeand
cite in support thereof the case of El Paso County va. Elam, 106 S. W.
(2) 393, holding ?f.hematter of oonstruotingdrainage ditches in the
county is, UNQUESTIONABLYCOUNTY BUSINESS, and the Commissioners*
Court is the only active governing body of the county with a juris-
diction bbnfdraed tiponritby law to do that work, and should be given
a broad and liberal constructionso as not to defeat the purpose of
the law." The facts in El Paso County vs. Elam, supra, are almost
identical to your given situation with reference to the construction
of the ditch and we quote from said opinion, viz:
        nThe constructionof the ditch was not in connection
     with a public road, but, as found by the jury, was constructed
Honorable Jos. B. Dart - Page 5                                257


     to protect the public roads from overflow,
                                           -      In the vicinity
                                                _-.        _ -
     of Fabens, and did in fact protect sucn pUbI     roam   from
     overflow. We think under the facts shown, the constrUctIon
     of the ditch was an lawful and commendableact on the part
     of the Commissioners Court and that the County may be made
     ltile for damages . . ."
Such case was reversed on a point not material to your inquiries.
        We further refer you to the Texas Constitution,Article I,
Section 17, which provides as follows:
        "No person's property shall be taken, damaged or destroyed~
     for.or applied to public use without adequate compensation
     being made, Unless by the consent of such person; and, when'
     taken, except for the use of the State, such compensation
     shall be first made, or secured by a deposit of money; and
     no Irrevocableor uncontrollablegrant of special privileges
     or immunities,shall be made; but all privilegesand fran-
     chises granted by the Legislature,or created under its au-
     thority shall be subjectto the control thereof."
        We further refer you to the case of Nussbaum'vs.Bell County,
Texas, Sup. Ct. Texas, 76 S. W. 430-432, holding, to quote from the
case, "understatutory provisions,property may be ,&ken or ds8iagsd
by counties for public use in establishingand maintainingpublic
roads, 'andthe authority thus given EMBEACES TEE MAKING OF DITCEES
AND DRAINS", and such case cites on such propositionthe aases of
Eamllton County vs. Garrett, 62 Tex. 602; Wooldridge vs+ Eastland
County, 70 Tex. 680j Watkins vs..WalkerCounty, 18 Tex. 558.
        We answer question Number Four in the negative. Clearly, if
a ditch is constructedfor benefit of a nrivete lndlvidual,thenit
would not be such an act as would come within the scope of county
busbess and the county could not lawfUlly pay damages-resulting     '
therefrom to a landowner and could net legally contract for the
constructionand maintenance thereof, because of the constitutional
prohibitionagainst same by virtue of Article III, Sec. 52, of the
Texas Constitution quoted in your lhtter.
        You will Understand, it is not the contract clause in the
deed that creates the power or necessarily Imposes the duty upon the
county to maintain the ditch, It is the general law as hereinabove
set out. If at this time, or at any time in the future, the Com-
missioners'Court finds that the upkeep'of ditch is necessary ln
Honorable Jos. B. Dart - Page 6


the maintenance of the road to avert injury to it or to adjacent
property, it bas the power and It would be under the duty to do so.
          Trusting this satisfactorilyanswers your Inquiries,we
are
                                         Yours very truly
                                    ATTORNEY GENERAL OF TEXAS

                                          (Signed)Joe McCasland
APPROVED DEC 17 1946                BY
                                             Joe McCasland
(Signed) Grover Sellers                      Assistant
ATTORNEY GENERAL OF TEXAS

JMc:djm


                          APPROVED
                        OPINION COMMITTEE
                          BY   OS
                            CHAIRMAN
