                          The Attorney                      General of Texas
                                                   octdser         14,     1980
MARK WHITE
Attorney General


                   Mr. Doyle W. Neighbours                                   Opinion No. I+%+257
                   Criminal District Attorney
                   Brazoria County Courthouse                                Re: Responsibility    for construction
                   Angleton, Texas   ‘7’7515                                 and maintenance    of drainage district
                                                                             bridges on county roads

                   Dear Mr. Neighbours:

                          You have requested       our opinion regarding       the responsibility    for
                   construction and maintenance       of bridges on county roads in special districts.
                   You first ask who is responsible       for the construction    and maintenance      of
                   bri%es over watercourses      in drainage districts,   municipal utility districts,
                   and water improvement    districts.

                            Section   56.121 of the Water Code provides                   that     the    board of a drainage
                   district:

                                  shall build necessary   briees    and culverts across or
                                  over canals, drains,     ditches,   laterals, and levees
                                  which cross a county or public road and shall pay for
                                  the construction  with funds of the district.

                   Section      55.166   imposes         similar         requirements        for         water   improvement
                   districts:

                                  The district shall build necessary bridges and culverts
                                  across and over district canals, laterals, and ditches
                                  which cross county or public roads.        Funds of the
                                  district  shall be used to construct    the briaes  and
                                  culverts.

                   Section      54.217   states    the     following          with      respect      to     municipal   utility
                   districts:

                                  All districts    are given right-of-way along and across
                                  all public, state, or county roads or highways, but
                                  they shall restore the roads crossed to their previous
                                  condition     of use, as nearly as possible at the sole
                                  expense to the district.




                                                            p.     813
Mr. Doyle W. Neighbours        - Page Two          (Mk+257)




Each of these statutes   imposes upon the respective  special         district   the duty of building
bri*es over watercourses    which cross county roads.

       Article 2351, V.T.C.S., however,     orescribes   that a commissioners   court shall
“build bridges and keep them in repair.”             In Hidalgo County Water Control      &
Improvement    District No. 1 v. Hidalgo County, 134 S.W. 2d 464 (Tex. Civ. App. -San
Antonio 1939, writ ref’d), the court reconciled this apparent conflict regarding the duty
of building bri@es:

               . . .the primary duty rests upon the county to build and maintain
               or cause to be built and maintained      all bridges necessary to the
               proper operation and maintenance       of its roads, and even where
               that duty is delegated     to other agencies. . . the primary duty
               still rests upon the county, so that if the secondary agency fails
               and refuses to perform, the county shall nevertheless        put in and
               maintain     such bri@es,    and exact reimbursement         from the
               defaulter,   through the courts, if necessary.

134 S.W. 2d at 466. We note that a county “may not recover for expenditures       upon
construction, repair or maintenance    of bridges for roads laid out and opened by the
County across pre-existing district canals.” rd, at 468.

          The court in Hidalgo County also made clear         that   the requirement      of building
bridges     extended to their mamtenance and repair:

               . . .it was the intention    of the legislature.  . . to require. . .
               districts to restore county roads to the same condition of safety
               in which the districts find and cross them; to relieve the county
               of any expense made necessary by the intrusion of the district
               upon its prior easement.      Because of the very nature of said
               intrusion - a sort of legal trespass - the statute       by express
               language put the duty upon the district to restore the status quo
               ante, and by implication,   to maintain that status so long as the
               district obstructs the free use of the county’s prior easement.

&     We conclude that a special district is charged with the duty of construction    and
maintaining   bridges across county roads, but that if the district fails to perform such
obligation, the county must construct    end maintain the bridges, and exact reimburse-
ment from the district.   -See Attorney General Opinion O-1018 (1939).

       You also ask whether         a county may specify replacement   specifications              for
bridges over canals.     Section    54.2271 of the Water Code makes such a provision               for
municipal utility districts:

               Construction     work of a district located wholly or partly outside
               the extraterritorial   jurisdiction  of a city shall meet standards
               established    by the commissioners    court of the county in which
               the district is located to protect local drainage and to prevent
               flooding in flood-prone areas.




                                              p.    814
Mr. Doyle W. Neighbours     - Page Three        @@-257)




No such requirement      is imposed for drainage ~districts or for water improvement
districts, however, and in its absence, we do not believe the commissioners    court is
authorized  to require compliance  with particular specifications.

                                      SUMMARY

                 A special district under the Water Code is charged with the
             duty of constructing     and maintaining    bridges across county
             roads, but if the district fails to perform such obligation,   the
             county must construct      and maintain   the briclges, and exact
             reimbursement   from the district.




                                                  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 COMMlTTEE

Susan Garrison,   Acting Chairman
Jon Bible
Walter Davis
Rick Gilpin




                                           p.    815
