Can a Texas county commissioner use county equipment and crews to maintain a drainage ditch that sits entirely on private property?

Plain-English summary

The Hardin County Attorney asked whether a single county commissioner may use county equipment and labor to maintain a "self-made" outfall ditch that sits entirely on private property, where the ditch drains several nearby subdivisions. He also asked whether the answer changes if the private owners give permission. The AG declined to answer as a matter of law, because the question is fact-specific, but laid out the three-part analysis the county has to work through.

First is statutory authority. A Texas county only has the powers the Constitution or Legislature gives it. Transportation Code chapter 251 covers county roads and bridges, and chapter 254 gives a county express authority to provide drainage on public roads, including building and maintaining ditches. But that drainage authority is generally tied to establishing a county drainage system and providing drainage on public roads, and ditches built under chapter 254 generally must be placed within the lines of a public road. The county attorney did not say where this ditch sits relative to public roads or whether the county had established a drainage system, so the AG could not decide the authority question.

Second is the constitutional limit. Even with statutory authority, spending county funds and resources on a ditch lying solely on private property has to overcome article III, section 52(a) of the Texas Constitution, which bars the gratuitous grant of public funds for private purposes. Texas courts allow an expenditure that incidentally benefits a private party if it directly accomplishes a legitimate public purpose, and the Texas Supreme Court uses a three-part test: the expenditure must serve a public purpose rather than benefit private parties, the county must keep control to make sure the public purpose is met, and the county must receive a return benefit. Whether a given expenditure passes is for the commissioners court to decide first, subject to judicial review for abuse of discretion. Prior opinions note these requirements are often handled through a contract or agreement.

Third is who can act. The commissioners court is the governing body of the county, and individual commissioners generally cannot bind the county on their own. County roads are one of the few areas where an individual commissioner may have limited independent authority, but only if the county operates under the ex officio road commissioner system in chapter 252, subchapter A, and even then the commissioner is subject to the commissioners court's general supervision.

On the permission question, the AG said in a footnote that an owner's permission may matter for trespass and similar issues but is likely not determinative of the public-funds analysis.

What this means for you

If you are a county commissioner or sit on a commissioners court

Based on this opinion, do not treat maintaining a ditch on private land as a simple road-maintenance call. The county first needs statutory authority (generally a drainage-system or public-road connection under chapter 254), and then the commissioners court has to make findings that the work serves a public purpose, that the county keeps control, and that the county gets a return benefit under article III, section 52(a). The AG points to a contract or agreement as the usual way to document the last two.

If you are the county attorney advising on a request like this

The opinion is a roadmap, not an answer. It tells you the three gates (authority, public-purpose findings, and who may act) and stresses that the public purpose must be a specific authorized purpose of the county, not just the general good of the public. It also flags that more than an incidental benefit to the private owners can sink the public-purpose prong.

If you are a private property owner hoping the county will maintain a ditch on your land

Your permission, by itself, likely does not make county work on your property lawful. The AG notes permission may matter for trespass but is probably not determinative of whether the county may spend public funds there. The county still has to clear the public-purpose test, and a determination that the work mostly benefits you can defeat it.

If you advise on a single commissioner acting alone

A single commissioner generally cannot bind the county. The exception the opinion identifies is roads: if the county uses the ex officio road commissioner system under chapter 252, subchapter A, a commissioner has some independent authority over roads in his or her precinct, still subject to the commissioners court's general supervision. If the county does not use that system, the commissioners court must act.

Common questions

Q: Can a county commissioner just send a county crew to clean a ditch on private property?
A: Not as a matter of course. The AG would not say it is allowed or forbidden in the abstract. The county needs statutory authority, the commissioners court has to find the work serves a public purpose under article III, section 52(a), and usually the commissioners court (not one commissioner) has to act.

Q: Does the ditch draining several subdivisions make it a public purpose?
A: Possibly, but that is the commissioners court's call to make first, subject to court review. The AG stresses the public purpose has to be a specific authorized purpose of the county, and the county must make sure the benefit to the private owners is no more than incidental.

Q: Does it help if the property owners give written permission?
A: The AG said permission may matter for trespass and similar concerns but is likely not determinative of the public-funds question. The county still has to satisfy the article III, section 52(a) analysis.

Q: Can one commissioner decide this without the whole commissioners court?
A: Generally no. The commissioners court is the county's governing body. A single commissioner may have limited independent authority over roads in his or her precinct, but only if the county operates under the ex officio road commissioner system in chapter 252, subchapter A.

Q: Why didn't the AG just answer the question?
A: The answer turns on facts the AG does not have, such as the ditch's relationship to public roads, whether the county established a drainage system, and which road-administration system the county uses. Those are determinations for the commissioners court, subject to judicial review for abuse of discretion.

Background and statutory framework

Counties are creatures of the Texas Constitution and have only the powers expressly delegated or necessarily implied (City of San Antonio v. City of Boerne, 111 S.W.3d 22 (Tex. 2003)). Transportation Code chapter 251 gives general authority over county roads and bridges, and chapter 254 gives a county express authority to provide drainage on public roads, including ordering construction or maintenance of ditches (section 254.005) and, in limited circumstances, removing blockages from a ditch on private property that connects with a county-maintained drainage ditch (section 254.008(a)(1)). That authority is generally tied to a drainage system and public roads, and a ditch built under chapter 254 generally must be within the lines of a public road (section 254.005(b)).

Article III, section 52(a) of the Texas Constitution bars the gratuitous grant of public funds for private purposes (Byrd v. City of Dallas, 6 S.W.2d 738 (Tex. [Comm'n Op.] 1928)), and a county generally may not repair or maintain private property (Ex parte Conger, 357 S.W.2d 740 (Tex. 1962)). An expenditure that incidentally advances a private purpose survives if it directly accomplishes a legitimate public purpose (Edgewood Indep. Sch. Dist. v. Meno, 917 S.W.2d 717 (Tex. 1995)), measured by the three-part test in Tex. Mun. League Intergov'tl Risk Pool v. Tex. Workers' Comp. Comm'n, 74 S.W.3d 377 (Tex. 2002): public purpose, retained public control, and a return benefit. Those findings belong to the commissioners court, subject to judicial review for abuse of discretion (Comm'rs Ct. of Titus Cnty. v. Agan, 940 S.W.2d 77 (Tex. 1997)).

On who may act, article V, section 18(b) makes the commissioners court the governing body, and individual commissioners generally cannot bind the county (Canales v. Laughlin, 214 S.W.2d 451 (Tex. 1948)). The exception is road regulation under chapter 251 and the optional ex officio road commissioner system in chapter 252, subchapter A, where a commissioner has certain precinct duties subject to the commissioners court's supervision (Guerra v. Rodriguez, 239 S.W.2d 915 (Tex. Civ. App.—San Antonio 1951, no writ)).

Citations and references

Statutes:

• Tex. Const. art. III, § 52(a) — bar on gratuitous grant of public funds for private purposes
• Tex. Transp. Code ch. 254 — county drainage on public roads, including ditch construction and maintenance
• Tex. Transp. Code ch. 252 — optional county road administration systems, including ex officio road commissioner

Key cases:

• Tex. Mun. League Intergov'tl Risk Pool v. Tex. Workers' Comp. Comm'n, 74 S.W.3d 377 (Tex. 2002) — three-part public-purpose test for public expenditures
• Ex parte Conger, 357 S.W.2d 740 (Tex. 1962) — county may not use equipment to clear a private lot benefiting the landowner
• Canales v. Laughlin, 214 S.W.2d 451 (Tex. 1948) — individual commissioners cannot bind the county by separate action

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0456
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2024/kp-0456.pdf

Original opinion text

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

February 16, 2024

The Honorable Matthew E. Minick
Hardin County Attorney
Post Office Box 516
Kountze, Texas 77625

Opinion No. KP-0456

Re: Whether an elected county commissioner may use county equipment and labor to maintain an outfall ditch that lies solely on private property (RQ-0512-KP)

Dear Mr. Minick:

You ask whether "an elected County Commissioner [may] use county equipment and county labor to provide maintenance to a self-made outfall ditch that lies solely on private property (if that outfall ditch provides a public purpose of providing drainage to multiple subdivisions)[.]"¹ You also ask whether the commissioner could do so "if given permission by the private property owners[.]" Request Letter at 1. You explain that within a commissioner's precinct "there is a self-made outfall ditch that provides drainage to certain nearby subdivisions."² Id. You describe the ditch as running through several parcels of private property and state that you are unaware of any Hardin County ("County") easement or right-of-way for the ditch. Id. Lastly, you tell us that the ditch has previously been maintained by other commissioners. Id.

In order for a single county commissioner to use county equipment and labor to maintain an outfall ditch that lies solely on private property, three items must be reviewed. First, the county must have the authority, second the use of public resources must be for a public purpose, and finally the authority must fall into one of the few situations where a county commissioner may act individually and not through the commissioners court. These items are fact specific, so we do not answer your question as a matter of law. See Tex. Att'y Gen. Op. No. KP-0099 (2016) at 2 (acknowledging that fact questions cannot be answered in an Attorney General opinion). However, we can advise you generally as to the legal analysis for each of them.

A county has authority to maintain ditches in connection with its provision of drainage on certain roads.

We first consider a county's authority under state law with respect to the maintenance of ditches. As "creatures of the Texas Constitution, counties and commissioners courts are subject to the Legislature's regulation." City of San Antonio v. City of Boerne, 111 S.W.3d 22, 28 (Tex. 2003). Accordingly, a county's "power is limited to that which is expressly delegated to it by the Texas Constitution or Legislature, or necessarily implied to perform its duties[.]" Id. at 29.

Transportation Code chapter 251 provides general authority for a county with respect to county roads and bridges, which could include the maintenance of drainage facilities in certain instances. See TEX. TRANSP. CODE §§ 251.001–.161; see also id. §§ 251.012(a)(3) (authorizing a county to spend money in a city for, among other things, the maintenance of drainage facilities), 251.014(a), (b) (providing county authority to carry out an improvement project, including drainage facilities, for a segment of the state highway system).

Particularly relevant to your inquiry, Transportation Code chapter 254 grants a county express authority to provide drainage on public roads, which includes certain authority relating to ditches. See id. §§ 254.001–.019; see also id. §§ 254.002–.004 (authorizing a county to establish a drainage system). Section 254.005 provides that the "commissioners court . . . may order the construction or maintenance of ditches as provided by [chapter 254] at any regular session of the court." Id. § 254.005(a). Further, "[i]n connection with its authority to construct and maintain ditches, the commissioners court may construct any necessary side, lateral, spur, or branch ditch." Id. § 254.005(d). And with respect to a ditch on private property, chapter 254 confers on a commissioners court express authority, in certain circumstances, to remove blockages of a ditch on private property "if the ditch connects with a drainage ditch constructed or maintained by the county[.]" Id. § 254.008(a)(1).

Yet, under chapter 254, a county's express authority with respect to drainage ditches is generally connected to the establishment of a drainage system and providing drainage on public roads. See generally id. §§ 254.002–.004 (providing for the establishment of a drainage system); see also id. § 254.005(b) (providing that a ditch constructed under chapter 254 "must be placed on or within the exterior lines of a public road in the county"). You tell us the ditch is located on private property and provides drainage to multiple subdivisions. Request Letter at 1. You do not tell us about its precise location or about any relationship it has to the public roads of the county, nor do you tell us the nature of the maintenance required or whether the County has established a drainage system. See id. Thus, we cannot make any determinations as a matter of law about the County's express authority with respect to maintaining this particular ditch.

Texas Constitution article III, subsection 52(a) limits the expenditure of public funds and public resources for private purposes.

In addition to the question of statutory authority, any maintenance of a ditch on private property would also require overcoming the general prohibition against the use of public funds and resources for private purposes found in Texas Constitution, article III, subsection 52(a). See TEX. CONST. art. III, § 52(a). The purpose of article III, subsection 52(a) is to "prevent the gratuitous grant of [public] funds to any individual, corporation, or purpose whatsoever." Byrd v. City of Dallas, 6 S.W.2d 738, 740 (Tex. [Comm'n Op.] 1928). Thus, generally, a county may not repair or maintain a private road or private property.³ See TEX. CONST. art. III, § 52(a); see also Ex parte Conger, 357 S.W.2d 740, 742 (Tex. 1962) (prohibiting county commissioners from using county equipment to clear brush from a private lot, benefiting the landowner); Tex. Att'y Gen. Op. No. GA-0085 (2003) at 2.

Texas courts acknowledge that article III, subsection 52(a) does not invalidate an expenditure which incidentally advances a private purpose if it is made for the direct accomplishment of a legitimate public purpose. See, e.g., Edgewood Indep. Sch. Dist. v. Meno, 917 S.W.2d 717, 740 (Tex. 1995). The Texas Supreme Court uses a three-part test to determine whether an expenditure of public funds satisfies article III, subsection 52(a). Tex. Mun. League Intergov'tl Risk Pool v. Tex. Workers' Comp. Comm'n, 74 S.W.3d 377, 384 (Tex. 2002). The three-part test requires the public entity to: (1) ensure that the expenditure is to "accomplish a public purpose, not to benefit private parties; (2) retain public control over the funds to ensure that the public purpose is accomplished and to protect the public's investment; and (3) ensure that the political subdivision receives a return benefit." Id. Whether a particular expenditure satisfies the three-part test is a determination for the county commissioners court to make in the first instance, subject to judicial review for abuse of discretion. Tex. Att'y Gen. Op. Nos. KP-0204 (2018) at 2, GA-0843 (2011) at 2.

Concerning the first prong's requirement that an expenditure serve a public purpose, "we emphasize that the public purpose to be served is not the general good of the public, but a specific purpose" of the County. Tex. Att'y Gen. Op. No. KP-0204 (2018) at 3; see also Tex. Att'y Gen. Op. No. GA-0743 (2009) at 2 ("The public purpose served by the expenditure must be an authorized public purpose of the political subdivision."). The use of county funds to fulfill a statutory function of a county generally serves a public purpose of a county. See Tex. Att'y Gen. Op. No. KP-0237 (2019) at 2; see generally TEX. LOC. GOV'T CODE §§ 232.001–.901 (providing for a county's regulation of subdivisions, including review of drainage matters). Even assuming the County finds that a public purpose is served in this instance, the County must also consider whether its maintenance of an outfall ditch that lies solely on private property would bestow more than an incidental benefit to the particular private property owners and thus fail to predominantly serve the public purpose. See Tex. Att'y Gen. Op. No. GA-0553 (2007) at 3–4. We again note that any of the County's findings on the matter would be subject to judicial review for abuse of discretion. Tex. Att'y Gen. Op. Nos. KP-0104 (2016) at 2, KP-0007 (2015) at 2; see also Comm'rs Ct. of Titus Cnty. v. Agan, 940 S.W.2d 77, 80 (Tex. 1997) (recognizing a district court's supervisory control over a commissioners court that abused its discretion).

The second and third prongs require that the public entity retain sufficient control to ensure the public purpose is accomplished and that the public entity receives a return benefit. See Tex. Mun. League, 74 S.W.3d at 384. Were the County to proceed with the maintenance of the outfall ditch, it should take affirmative steps to satisfy these prongs. Previous opinions of this office advise that the requirements of these prongs can often be addressed through a contract or agreement that ensures the public purpose is accomplished and that the public entity receives the return benefit.⁴ See generally Tex. Att'y Gen. Op. Nos. KP-0181 (2018) at 2, KP-0204 (2018) at 3.

A single county commissioner has limited authority to act independently with respect to county roads.

Finally, we note you ask specifically about the authority of a single county commissioner, and not the county commissioners court as a whole. Request Letter at 1. The Texas Constitution provides that the commissioners court is the governing body of a county. TEX. CONST. art. V, § 18(b) (providing that a county commissioners court "shall exercise . . . power[] and jurisdiction over all county business"); see also City of San Antonio, 111 S.W.3d at 27 ("A commissioners court's primary function is to administer its county's business affairs."). It is well established in Texas that individual commissioners generally have no authority to independently bind the county. Canales v. Laughlin, 214 S.W.2d 451, 455 (Tex. 1948) ("[I]ndividual commissioners have no authority to bind the county by their separate action.").

Yet, regulation of county roads is one area of the law in which an individual commissioner may have limited authority to act independently. Under Transportation Code chapter 251, county commissioners are the supervisors of public roads, and an individual commissioner has certain duties with respect to the roads in his or her precinct, subject to the commissioners court's general supervision. TEX. TRANSP. CODE § 251.004(a); see Guerra v. Rodriguez, 239 S.W.2d 915, 920 (Tex. Civ. App.—San Antonio 1951, no writ). A county operates under chapter 251 unless it has adopted one of the optional systems of road administration under chapter 252. TEX. TRANSP. CODE § 251.004(a); see also id. §§ 252.001–.006 (providing for an ex officio road commissioner system), 252.101–.111 (providing for a road commissioner system), 252.201–.216 (providing for a road superintendent system), 252.301–.314 (providing for a county road department system).

Of the four optional systems in chapter 252, subchapter A provides that each county commissioner is the ex officio road commissioner of his or her precinct and has certain powers and duties with respect to that precinct. See id. §§ 252.001–.006. The ex officio county road commissioner is responsible for the "vehicles, tools, and machinery belonging to the county," "shall direct" certain activities with respect to roads, and has the duties of a supervisor under sections 251.004 and 251.005. Id. § 252.006(a), (b), (e). Moreover, an ex officio road commissioner has express authority to determine the condition of public roads in his or her precinct and to "direct the manner of grading, draining, and otherwise improving the roads." Id. § 252.006(f)(3). Yet, a commissioner exercising that authority is still subject to some oversight from the commissioners court. See id. § 252.006(a) ("Under the direction of the commissioners court . . . ."), 252.006(b) ("Under rules adopted by the commissioners court . . . ."); see also Tex. Att'y Gen. Op. No. GA-0295 (2005) at 9 ("An ex officio road commissioner . . . implements the commissioners court's decisions on a day-to-day basis, by directing the work [of the] precinct according to rules established by the court."); Guerra, 239 S.W.2d at 920 (recognizing that the commissioners court "retains general supervision"). If the County operates under chapter 252, subchapter A, an individual commissioner may have some authority to act independently. Otherwise, it is the commissioners court that acts on behalf of a county.

¹ Letter from Honorable Matthew E. Minick, Hardin Cnty. Att'y, to Off. of the Att'y Gen. at 1 (Sept. 15, 2023) ("Request Letter").

² "Outfall" means "the place where a river, drain, or sewer empties into the sea, a river, or a lake." NEW OXFORD AMERICAN DICTIONARY 1244 (3d ed. 2010). One court characterizes an "outfall ditch" as a structure, among others, necessary for the drainage of a highway. Fuller-Ahrens P'ship v. S.C. Dep't of Highways & Pub. Transp., 427 S.E.2d 920, 922 (1993).

³ Texas Constitution article III, section 52f authorizes counties with a population of 7,500 or less to "construct and maintain private roads if it imposes a reasonable charge for the work." TEX. CONST. art. III, § 52f. This provision does not apply to the County, which has a population of 57,811. Moreover, this office previously opined that article III, section 52f "does not authorize a county to maintain private non-road property." Tex. Att'y Gen. Op. No. GA-0085 (2003) at 2.

⁴ You ask about permission from the property owner. See Request Letter at 1. While having the property owner's permission may matter for trespass and other purposes, it is likely not determinative in the analysis of the expenditure of public funds.

SUMMARY

While in some instances state law authorizes a county to provide for drainage in connection with public roads, which could include the maintenance of a ditch, any such use of county labor and resources on private property must comply with article III, subsection 52(a) of the Texas Constitution.

Article III, subsection 52(a) prohibits the gratuitous payment of public funds for a private purpose. The determination whether a particular expenditure or use of public resources comports with article III, subsection 52(a) is, in the first instance, for the commissioners court to make subject to judicial review for abuse of discretion. Thus, this office cannot conclude as a matter of law that Hardin County may maintain an outfall ditch on private property.

A county commissioners court is the governing body of a county and administers the county's business. A single county commissioner may have limited authority to act independently with respect to county roads in his or her precinct but absent such authority a county acts through the county commissioners court.

Very truly yours,

KEN PAXTON
Attorney General of Texas

BRENT WEBSTER
First Assistant Attorney General

LESLEY FRENCH
Chief of Staff

D. FORREST BRUMBAUGH
Deputy Attorney General for Legal Counsel

AUSTIN KINGHORN
Chair, Opinion Committee

CHARLOTTE M. HARPER
Assistant Attorney General, Opinion Committee