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        The Honorable William J. Bernardino                 Opinion   No.    H-   280
        Montgomery   County Attorney
        Conroe,  Texas   77301                              Re:   Can a road be considered
                                                            a health nuisance so as to give
                                                            district health officer authority
                                                            to order its abatement?

        Dear Mr.   Bernardino:

                You have requested our opinion on the question of whether “a
        road” can “be considered   a health nuisance so as to authorize a Health
        officer to proceed to abate same under provisions    of V. A. C. S. Art.
        4477-1,   Sec. 3(b). I’

               Article 4477-1, V. T. C. S. , establishes      “minimum     standards of
        sanitation and health protection measures.      ”    In its 5 1 (g) it defines
        “nuisance”    as:

                       “Any object,  place or condition which constitutes
                   a possible and probable medium of transmission     of
                   disease to or between human beings or any other object,
                   place or condition which may be specifically  declared
                   by this Act to be a nuisance. ‘I

              In $ 2, it specifically declares certain conditions           “to be nuisances
        dangerous to the public health, ” among them:

                       !, . . . .


                        “(e) Any place, condition or building controlled
                   or operated by any governmental    agency,  state or
                   local, which is not maintained in a sanitary condition;”




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The Honorable        William     J. Bernardino      page 2   (H-280)




                I,
                     .   .   .




                ‘l(h) Any collection of water in which mosquitos
           are breeding within the limits of any city, towns or
           village;”

                1,:. . . .


      Section   3 (b) provides       as follows:

                “Every local health officer who receives
           information   and proof of the existence of a nuisance
           within his jurisdiction   shall issue a written notice
           to any person responsible     for the said nuisance.
           ordering the abatement of same.        He shall at the
           same time send a copy of the, said notice to the
           local city, county, or district attorney.      Such
           notice shall specify the nature of the nuisance and
            shall designate a reasonable    time within which such
           abatement shall be accomplished.        In the event
           such notice is not complied with within the specified
           time, the local prosecuting     attorney who received
           the copy of the original notice shall be so advised
           by the local health officer,    and he shall immediately
           institute proceedings   for the abatement thereof. ”

       We believe that the basic answer to your question is controlled
by the facts and circumstances     involved in a given case, and the most
we can say is that there is nothing about “a road” that would prevent
conditions existing thereon from being considered       a nuisance under
Article 4477-l   if the conditions defined in the statute exist with reference
to or because of the road or its maintenance.

      In your letter you enclosed a letter to you from the director of
the Montgomery-Walker     County Health District which indicates that the
concern emanates from that agency.      We note our belief that under $ 5 4
and 4a of Article 4447a,  V. T. C. S., the director of a coordinated health




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The Honorable   William   J. Bernardino       page 3   (H-280)




program   such as the Montgomery-Walker      County Health District may be
considered a “local health office” as defined in $ 3 (b) of Article 4477-1,
with a caveat from the narrow construction      of the latter statute in ABC
Rendering Inc. v. State,   342 S. W. 345 (Tex. Civ. App.,       no writ, 1961)
which holds that a “local health officer” under Article 4477-l must have
taken the oath required ,of county health o,fficers and have filed a copy of
his appointment with the State Board of Health.

       The letter from the health unit further indicates that the following
conditions on the road in question are disturbing the agency:

           “1) When a road is so poorly built and/or maintained
           that it persistently contains significant amounts of
           stagnant or unwholesome     water liable to produce disease.

           “2) When a road is so poorly built and/or maintained
           that it interferes with proper drainage causing sub-
           surface water to the degree that it interferes with
           proper functioning of private sewage systems   or
           threatens to contaminate private or public water
           supplies.

           “3) When a private road is       the only means of egress
           to a densely populated area       (e. g. a subdivision) and
           it is so poorly built and/or      maintained that it would
           be impossible    a significant    amount of time for vehicular
           traffic to pass.

           “4) When a private or governmental      owned road is the
           only means of egress of large numbers of people living
           in a densely populated area and it is subject to periodic
           obstruction  (e. g. flooding) not due to an Act of God of
           sufficient degree that vehicular traffic cannot pass a
           significant amount of the time. ”




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The Honorable   William   J. Bernardino      page 4     (H-280)




       The first two conditions described    above i. e., stagnant or un-
wholesome    water and interference   with sewage systems or water supplies,
could logically  fall under the broad definition of nuisance in § 1 (g) of
Article 4477-l and also under the two quoted specific definittons from
$ 2 (we included 5 2e on the assumption    that the road is maintained by the
county or by a county commissioner      and, although your letter does not
reveal this information,    your brief so indicates).    Moreover,  subsections
e and (1) of $ 2 refer to poorly maintained sewage conditions and these
impliedly could apply to the conditions described     in the health unit’s letter.

       On the other hand, we doubt that the conditions described   in 3 and 4
of the letter would invoke the provisions of Article 4477-l.    The fact that a
road is not adequate to handle the amount of traffic required of it seems
to us remote from the health hazards contemplated     by Article 4477-l.

       The well-written    and well-reasoned    brief provided with your request
reaches a contrary result based upon Articles        2351, 6713, 6730 and 6771,
V. T. C. S. , which give county governments      exclusive  authority over the
maintenance    of county roads,   including the construction   and maintenance
of drainage facilities.    We do not believe that these statutes authorize
a violation of Article 4477-1,   V. T. C. S. , or the maintenance    of a health
nuisance as defined     therein,  e. g., Article 4477-1,   $2 (e), V. T. C. S. ,
supra.

                                  SUMMARY

      Conditions of a road may be considered    a health nuisance
      under the provisions  of Article 4477-1,  V. T. C. S. , if the
      conditions defined in the statute exist with reference     to
      or because of the road or its maintenance.

                                           Very   truly yours,




                                    u      JOHN L. HILL
                                           Attorney General       of Texas




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The Honorable   William   J. Bernardino    page 5   (H-280)




DAVID M. KENDALL,         Chairman
Opinion Committee




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