              THEATI'ORNEY        GENERAL
                         OF TEXAS
                    Ausrr~~. T-s W3nl

                                   June 18,      1974


The Honorable Harry P. Burleigh                         Opinion No. H-   328
Executive Director
Texas Water Development Board                            Re: Authority of the Texas
P. 0. Box 13087, Capitol Station                         Water Development Board
Austin, Texas 78711                                      regarding approval of plans
                                                        ‘for the construction of levees
The Honorable Joe Resweber                               or other similar improvements.
Harris County Attorney
Harris  County Courthouse
Houston, Texas 77002

Gentlemen:

        Each of you has asked our opinion as to the authority of the Texas
Water Development Board to approve plans for the construction of levees
or other similar improvements.

       Mr.   Burleigh’s   first   question is:

               Does the Texas Water Development Board have the
               duty and authority to approve or disapprove the plans.
               for proposed levees to be constructed by anyone other
               than a levee improvement    district?

       Mr.   Resweber     asks:

                Is the Harris County Flood Control District
                required to submit its plans for the rectification
                or partial realignment of titural streams to the
                Texas Water Development Board?

       and




                                         p. 1519
The Hon. Harry P. Burlcigh
The Hon. Joe Resweber    page 2      (H-328)




               If the Harris County Flood Control District
               is required to submit natural stream plans to the
               Texas Water Development Board, does the requir‘e-
               ment extend to the construction or improvement
               of man-made lateral drainage facilities  as well?

         The Water Development Board (hereafter,        the Board) is charged with
the responsibility    of preparing and developing “a comprehensive      state water
plan” and instructed to “direct its efforts toward the orderly development
and management of water resources         in order that sufficient water will be
availabletireasonable       cost to further the economic development of the entire
state. ” Sec. 11.101, Water Code, V. T. C. S.

        It is the chief purpose of Subchapter K of the Water Code to provide
plansfor improvements     to reclaim land not suitable for use because of water
accumulation.     Section 11.451, Water Code, V. T. C. S. The Board is given
broad powers within certain standards set by the Code. Sets. 11.452,11.453
11.454, Water Code, V. T. C. S. The Subchapter concludes with Sec. 11.458,
which provides:

                     (a) No person, corporation   or levee improvement
                district may construct, attempt to construct,      cause to
                be honstructed, maintain, or cause to be maintained, any
                levee or other such improvement      on, along, or near any
                stream of this state that is subject to floods, freshets,   or
                overflows,   so as to control, regulate,   or otherwise change
                the floodwater of the atream, without firrt obtaining approval
                of the plans by the board.

                     (b) Any person, corporation,  or levee improvement
                district who violates any provision of this section is
                guilty of a misdemeanor   and upon conviction is punish-
                able by a fine of not more than $100.

                     (c) At the request of the board, the attorney general
                shall file suit in a district court of Travis County to enjoin




                                      p. 1520
The Hon Harry P. Burleigh
The Hon. Joe Resweber   page 3        (H-328)




                any violation   or threatened   violation   of this
                section.

                     (d) This section does not apply to structures
                authorized by the Texas Water Rights Commission.

         Furthermore,     Sec. 57.102, Water Code, V. T. C. S., in the chapter
dealing with levee improvement      districts, expressly prohibits any “person,
corporation,or   district ” from constructing a levee or other improvement      on
or near any stream which is subject to floods, freshets,     or overflows,
except for irrigation    or “water improvement”    purposes, without first
obtaining approval of the plans from the Water Development Board           This
provision replaced Article 136. 3, Vernon’s Texas Penal Code, which
called for approval by the State Reclamation     Engineer.

         Therefore,    we would answer Mr. Burleigh’s first question in the
affirmative,   that the Texas Water Development Board does have the duty
and authority to approve or disapprove plans for proposed levees to be
constructed by any person, corporation      or levee improvement district.
The answer to Mr. Resweber’s       first question, aw to whether the Harris
County Flood Control District is one required to submit plans to the Board,
will depend primarily     upon whether it is a “person, corporation,  or levee
improvement     district. ”

         The Harris County Flood Control District is not a general law “levee
improvement    district”, Sets. 57,001 et seq. Water Code, V. T. C.S.     It is,
on the other hand, a special law district created in 1937 by Article 8280-120,
V. T. C. S. Section 1 of Article 8280-120 provides that’-the District “shall be
a governmental    agency and body politic and corporate . . . ” The District
was created pursuant to Sec. 59 of Article 16 of the Texas Constitution,
which provides that such ~districts “shall be governmental agencies and
bodies politic and corporate . . . ”

        Nothing in the Act creating the District,    nor in subsequent amendments,
demonstrates    a legislative intent that it should not be required to comply with
statutes (Article   8028, R. C. S., 1925, repealed, 1967, and Article 1363, Texas
Penal Code of 1925, now Section 57-102 of the Water Code), which requires




                                       p. 1521
The Hon. Harry P. Burleigh
The Hon. Joe Rerweber     page 4        (H-328)




the approval   of su,ch plan6 by the Board or its predecernor.

        No cane has decided whether a Sec. 59 flood control district is a
person or a corporation within Sec. 11.458 or Sec. 57.102 of the Water
Code.   But it has been held that it ir a corporation      within the prohibition
of Sec.  52 of Article 3 of the Conlrtitution  prohibiting    the lending of a county’s
credit to “any individual, a66ociation or corporation. ” Harrir County Flood
Control District v. Mann, 140 S. W. 2d 1098 (Tex. 1940). Compare San
Antonio River Authority v. Sheppard,        299 S. W. 2d 920 (Tax. 1957) and
Bexar County Holrpifal Di6t. v. Crorby,       327 S. W. 2d 445 (Tex. 1959).

         In addition, part Attorney General opinion6 have cla66ified many
6imilar governmental     entitie6 as “person6 ” for the purpores of taxation
and admini6trative    control over their actions.   The6e entitie6 include the
State Board of Control, Opinion No. WW-721 (1959); the State Park6
Board,     Opinion No. WW-821 (1960) ; and the Tao6 Department of Correc-
tions, Opinion No. M-651, M-651-A (1970).         Such a construction ir required
in thi6 ca6e by Section 1.04 (2) of Article   5429b-2, V. T. C.S., which states
the following:

                 (2) “person” includes corporation,   organization,
                 government or governmental     6ubdivi6ion or agency,
                 . . . , and any other legal entity;

          It i6 our opinion that Harri6 County Flood Control District ir a person
or a corporation,      within the coverage of Sets. 11.458 and 57.102, Water Code,
V.T.C.S.,       and i6 required to obtain the approval of the Texas Water Develop-
ment Board, 60 long as not otherwise excepted, and we anrwer Mr. Resweber’s
fir6t question in the affirmative.

         Not every activity in or about a rtream rubjectr the actor to the
regulation of the Water Development Board.      Section ll. 458 (d) itself,
excepts structures authorized by the Texas Water Rights Commission.
Only those levee6 or improvement6      need be approved which are constructed,
or maintained on, along or near one of the described streams “so as to




                                         p. 1522
The Hon. Harry P. Burleigh
The Hon. Joe Resweber    page 5             (H-328)




control, regulate, or otherwise change the flood water of the stream.”
Whether, as asked by Mr. Resweber’6        second question. this requirement
extends to the construction or improvement       of a man-made lateral drainage
facilities depends on the facts in a given situation, and resolution of this
question should at least initially be made by the Board subject to judicial
review.    Security State Bank of San Juan v. State, 169 S. W. 2d 554 (Tex.
Civ. App., Austin, 1943, err. ref’d.,      w. o-m.)     Consequently,  the plans
for both lateral drainage facilities  and rectification   or partial realignment
of natural stream6 should be submitted to the Board for its determination
as to whether such structures     would control, regulate, or otherwise change
the flood waters of the stream involved.

        Finally,    Mr.    Btirfeigh   a6ki~: ‘.       :‘. (’

                   If such a duty exists,  should the criteria and procedure
                   which have heretofore    been employed be followed,   or
                   must the Texas Water Development Board consider effects
                   of a propoeed levee upon the rights of third parties who
                   may assert that their interests are adversely affected
                   rather than consider only the technical aspects of whether
                   a proposed levee will safely perform the function for
                   which it is intended?   If third party rights are to be
                   considered,   what procedures    should be followed?

        The “criteria and procedures               which have heretofore   been employed”
are described as follows:

                       For as long as we have been able to determine,
                   the State Reclamation   Engineer as well as his various
                   successors,   including the Texas Water Development
                   Board, have passed upon the plans of proposed levees
                   according to two criteria  only. These are:

                   1.     The construction of the levee must be
                          based upon sound engineering principle6
                          so that its structural integrity will safely




                                             p. 1523
    The Hon. Harry P. Burleigh.
    The Hon. Joe Rerweber    page 6      (H-328)




                        withstand the water6 which it ir designed
                        to redrain,   con6idering all topographic
                        feature8 including exirting leveer.

                   2.   The plan of the propored levee muat be
                        compatible with exirting hydrological
                        condition6.  In thin connection, con-
                        6ideration mu6t be given a6 to any
                        po66ible deleteriou6 effecta, 6uch a6
                        overtopping or undermining,     upon any
                        exirting 6y6tem of leveer.

                   At no time in the part did the State Reclamation
                   Engineer or any of hi6 6ucces6or6,      including the
                   Texan Water Development Board, act ae’an adminiatra-,
                   tive tribunal in determining   or adjudicating the right6
                   of third partie6.    Levee plan6 have alway been approved
                   if the two criteria 6tated above have been met and
                   dirapproved btherwire. without adminirtrative       hearing6
                   or the procedural requirement6      which accompany them.
                   Thi6 has been the con6i6tent adminicltrative     conrtruction
                   of the rtatuter, relating to the approval or dilrapproval of
                   propolled levee construction by the State Reclamation
                   Engineer and hia 6ucce66or6.

             We find it difficult to underrtand how the Board can determine the
    proprieq   of a levee in a vacuum without giving consideration to the right6
    of third partier.

              Indeed, Sec. 11.452, Vernon’6 Texar Water Code, which i6 a part
    of the rame chapter as Sec. 11,458,6pecifically       require6 the Board to be
    governed by equitable COn6ideratiOn6.        We believe a con6ideration of the
    rights of third parties is essential to any determination of whether a
    particular    project is equitable.   We feel that, at the very least, third
    parties whose propertie       and right6 are to be affected by activitieo over




I

                                         p. 1524




L
The Hon. Harry P. Burleigh
The Hon. Joe Rerweber    page 7     (H-328)




which the Water Development Board has jurirdiction,    should be given
notice of the proposal and a rea6onable opportunity to be heard.

         The fact that the Water Code in Sec. 57.094, provides a procedure
for suit to be brought by any interested person to set aside a reclamation
plan approved by the Board, or that an injured party would have recourse
to a suit for damage,    [Henderson County Levee Improvement Dist. No. 3
 v. Williams,   19 S. W. 2d 197 (Tex. Civ. App., Austin 1929, rev’d on
other grounds, 36 S. W. 2d 204 (Tex. Comm. App. 1931)], would not, in
our opinion, satisfy the statutory   responsibility exprerrsed in Sec. 11.452.

        Other than to say, a6 we have, that intere6ted third parties should
be given notice and a reasonable opportunity to be heard, we cannot prescribe
more specifically  the procedure to be followed in each case.

                                  SUMMARY

                   The Water Development Board ha6 the duty to
               approve or diclapprove plans for proposed levee6 to
               be constructed by any person, corporation or levee
               improvement    district on, along or near any stream
               that is subject to floods, freshet8 or overflows.
               The Harris County Flood Control District is a
               corporation within the 6tatute.

                    In passing upon such plans the rights of third
                parties should be considered and such persons
                should be given notice and a reasonable opportunity
                to be heard.

                                                  ry truly yours,




                                               Attorney   General   of Texas




                                     p. 1525
The Hon. Harry P. Burleigh
The Hon. Joe Rerweber   page 8      (H-328)




APPROVED:




LAqRY   Fi YORK,   F   6tA66i6hlt       '




DAVID M. KENDALL,       Chairman
Opinion Committee




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