                                   The Attorney            General of Texas
                                                  December 18, 1981
MARK WHITE
Attorney General


Supreme Court Building
                                 Honorable Mike Driscoll                Opinion No.MW-412
P. 0. Box 12546                  Harris County Attorney
Austin. TX. 76711                1001 Preston, Suite 634                Re: Authority of county flood
5121475-2501                     Houston, Texas   77002                 control district to lengthen
Telex 910/674-1367                                                      private    bridge     crossing
Telecopier  5121475-0266
                                                                        channel widened by district

1607 Main St., Suite 1400        Dear Mr. Driscoll:
Dallas, TX. 75201
2141742-6944
                                      You have requested our opinion regarding whether the Harris
                                 County Flood Control District is required to expend funds to lengthen
4624 Alberta   Ave., Suite 160   a private bridge which crosses a channel widened by the district. You
El Paso, TX. 79905               first ask us to assume that the district has previously approved the
915l533-3464                     construction of the bridge across its easement and that the district
                                 now proposes to widen the channel.
1220 Dallas Ave., Suite 202
Houston. TX. 77002                    The Harris County Flood Control District, a district organized
713/65M)666                      under article 16, section 59 of the Texas Constitution, was created by
                                 special act of the legislature in 1937.Acts 1937, 45th Leg., ch. 360.
                                 at 714. Section 50.052 of the Water Code is applicable to such
606 Broadway, Suite 312
Lubbock, TX. 79401
                                 districts. It provides:
6061747.5236
                                                (a) If any district or authority organized
                                           under the provisions of Article III, Section 52,
4309 N. Tenth, Suite S
                                           or Article XVI, section 59, of the Texas
McAllen, TX. 76501
51216624547
                                           constitution, in the exercise of the power of
                                           eminent domain, the police power, or any other
                                           power requires the relocation, raising, lowering,
200 Main Plaza. Suite 400                  rerouting, or change in grade or alteration in the
San Antonio, TX. 76205
                                           construction of any highway, railroad, electric
512l2254191
                                           transmission, telegraph, or telephone lines,
                                           conduits, poles, properties, facilities, or
An Equal Opportunity/                      pipelines, the relocation, raising, lowering,
Affirmative Action Employer                rerouting, or change in grade or alteration of
                                           construction shall be done at the sole expense of
                                           the district or authority.

                                                (b) 'Sole expense' means the actual cost of
                                           the relocation, raising, lowering, rerouting, or
                                           change in grade or alteration of construction and
                                           providing comparable replacement without enhancing




                                                           p. 1405
Honorable Mike Driscoll - Page 2       (MW-412)



          the facilities after deducting from it the net
          salvage value derived from the old facility.

               (c) This section shall not be applicable to
          those projects under construction or financed or
          for which bonds have been voted and approved by
          the acts of any district on the effective date of
          this Act, unless the provisions hereinabove are
          contained in the acts of the district authorizing
          said construction or financing.

     In our opinion, if the district widens the channel so as to
render the bridge unusable, the district may reasonably be said to
have acted tn require the "relocation... rerouting or... alteration in
construction of... properties." In such instance, section 50.052
directs that "relocation... rerouting... or alteration of construction
shall be done at the sole expense of the district...." The statute
does not make any distinction based upon whether the "property" was
originally constructed with the district's approval. We believe that
it requires the district to bear the sole expense of lengthening the
bridge without regard to whether the district has previously approved
its construction.

     It has been suggested that several provisions of the Texas
Constitution prohibit a district from expending its funds to lengthen
a private bridge crossing its channel. -See Tex. Const. art. III,
§§50, 51, 52, 55. In State V. City of Austin, 331 S.W.2d 737 (Tex.
1960), however, the Texas Supreme Court upheld the constitutionality
of article 6674w-4, V.T.C.S., which provided that relocation of
utility facilities necessitated by improvement of highways shall be
made at state expense. See also State v. City of Dallas, 319 S.W.2d
767 (Tex. Civ. App. - Austin 1958), aff'd, 331 S.W.2d 737 (Tex. 1960).
In our view, there is no significant distinction, for constitutional
purposes, between article 6674w-4 and section 50.052 of the Water
Code. Accordingly, we believe it is clear that the Texas Supreme
Court would uphold the constitutionality of section 50.052.         Of
course, the statute may be unconstitutionally applied in particular
situations if the public purpose is not adequately served as indicated
by the court in State v. City of Austin, supra. See also Harris
County v. Dowlearn, 489 S.W.2d 140 (Tex. Civ. App. - Houston 114th
Dist.] 1972, writ ref'd n.r.e.).

                            SUMMARY

              Section 50.052 of the Water Code requires the
         Harris County Flood Control District tn lengthen a
         private bridge crossing a channel which has been
         widened by the district, without regard to whether
         the   district   has   previously   approved   the




                                   p. 1406
Honorable Mike Driscoll - Page 3       (NW-412)



          construction of the bridge. Section 50.052 of the
          Water Code is not unconstitutional on its face.

                                         very truly yours,   f)



                                         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 COMMITTEE

Susan L. Garrison, Chairman
Rick Gilpin
Jim Moellinger
Bruce Youngblood




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