                       The Attorney                  General of Texas
                                             April    15,     1980
MARK WHITE
Attorney General


                   Honorable Joe Resweber                         Opinion No. NW-17 1
                   Harris County Attorney
                   1001 Preston, Suite 634                        Re: Authority of certain counties
                   Houston, Texas 77002                           to require building permits for
                                                                  structures   outside      the area
                                                                  designated by the Federal Flood
                                                                  Insurance Administration.

                   Dear Mr. Resweber:

                         You have asked our opinion whether Harris County has authority under
                   law to require building permits for structures constructed or placed within
                   that portion of the unincorporated area of Harris County which is outside of
                   the flood plain areas designated        by the Federal     Flood Insurance
                   Administration as having special flood hazards. You advise that

                              regulations of Harris County, Texas, for Flood Plain
                              Management      require    everyone   outside   of the
                              corporate limits of any municipality        to secure a
                              permit prior to the construction of a structure, in
                              order to assure that all structures within the loo-year
                              flood plain are build [sic] to the elevation of the lOO-
                              year flood.

                         It is well established that counties have only those powers and duties
                   that are specifically conferred upon them. Canales v. Laughlin, 214 S.W.2d
                   451 (Tex. 1948); Mills County v. Lampasas County, 40 S.W. 403 (Tex. 1897).
                   Consequently,    unless the legislature   has granted the county power to
                   regulate within or without the flood plain areas, it cannot require building
                   permits.

                          Counties have been granted limited powers under the Flood Control
                   and Insurance Act, Water Code S 16.3ll et seq.         We have previously
                   concluded, however, that while that act authorizes political subdivisions to
                   enact land use regulations     which have as their purpose and effect
                   compliance with requirements and criteria promulgated pursuant to the
                   National Flood Insurance program, the regulations have no application
                   outside areas designated by the Federal Flood Insurance Administrator in
                   accordance with 24 C.F.R. section 1910.3, after that designation is made.
                   Attorney General Opinion H-978 (1977).




                                                     P.     544
Honorable Joe Resweber       -   Page TWO     (MW-17 1)



       The same legislature which passed the Flood Control and Insurance Act provided
additional flood damage control powers to certain counties.     These counties are those
bordering on the Gulf of Mexico or the tidewater limits thereof. Article 1581e-l., section
2, V.T.C.S. Harris County is such a county. The power conferred on these counties is set
forth in section 4, which provides:

                 The commissioners court of any such county shall have the power
              and authority to enact and enforce regulations which regulate,
              restrict, or control the management’ and, use of land, structures,
              and other development in flood, or rising water prone, areas in such
              a manner as to reduce the danger of damage caused by flood losses.
              This power and authority may include, but shall not be limited to,
              requirements for floodproofing of structures which are permitted
              to remain in, or be constructed in, flood or rising water prone,
              areas; regulations concerning minimum elevation or any structure
              permitted     to be erected    in, or improved in, such areas;
              specifications for drainage; and any other action which is feasible
              to minimize flooding and rising water damage.

The powers are not restricted       by or conditioned   on any actions   of the Federal   Flood
Insurance Administrator.

      The      powers may only be exercised in the flood or rising water prone areas.
However,     section 2 of the act empowers the commissioners court to conclusively establish
the limits     of the flood or rising water prone areas by making findings in a resolution
passed by    it. Attorney General Opinion H-1024 (1977).

       Thus, upon the definition of flood or rising water prone areas within the county, the
commissioners court acquires regulatory authority in the defined area that is not
contingent on or limited by the actions of the Federal Flood Insurance Administration.
While we do not pass on the specific details of any plan, regulations promulgated by the
commissioners court, requiring building permits within the defined area, to assure that all
structures within the loo-year flood are built to the elevation of the loo-year flood plain,
are clearly within the power delegated to the court. As noted in the purpose of the Act, it
is intended “. . . to promote the public interest by providing appropriate protection against
the perils of flood losses and encouraging sound land use by minimizing exposure of
property to flood losses.” V.T.C.S. art. 1581e-1, S 1.

                                        SUMMARY

              Article 1581+1, V.T.C.S., gives the commissioners court of Harris
              County authority to require building permits in unincorporated
              areas for structures constructed or placed in the &fined flood, or
              rising water prone, areas which are outside the flood plain areas
              designated by the Federal Flood Insurance Administration as having
              special hazards.




                                            P.   545
.   .




        Honorable Joe Resweber       -   Page Three        (Mw-171)



                                                  g&
                                                           Attorney General of Texas

        JOHN W. FAINTER, JR.
        First Assistant Attorney General

        TED L. HARTLEY
        Executive Assistant Attorney General

        Prepared by Tim Brown
        Assistant Attorney General

        APPROVED:
        OPINION COMMITTEE

        C. Robert Heath, Chairman
        Jim Allison
        Tim Brown
        Walter Davis
        rwm. Gn+fm.
         Rick Gilpin
         Bruce Youngblood




                                                      P.    546
