Our county is flooding this week and the commissioners are getting a lot of heat to go onto private property and clean out creeks and ditches. Counties have authority to purchase or condemn. However, putting the political pressure aside, does the county have any legal duty to act on these complaints? The drainage work needed and possible condemnation proceedings will be expensive. The work we are looking at will benefit only about 10 to 15 landowners. Any insight is appreciated.

Counties are required under the Transportation Code to ensure that county rights-of-way are clear. Whether that's the case in your fact situation (that is, whether the flooding problems are related to obstructions within the county's rights-of-way) is a determination for the commissioners court. If they think it is, then it's probably okay. If not, the grounds become a good bit shakier. Creeks and waterways (which probably are situated on private property but are filled with water which belongs to the State) are even one step further removed from this responsibility. Ultimately, the commissioners court will have to determine whether the benefit to 10 to 15 landowners translates into a "public benefit" to the county as a whole. If not, then expending county time and money to help out a handful of individual landowners probably represents a grant of public money in violation of article 3, section 52(a) of the Texas Constitution.

Thanks Scott. The public benefit issue is something we will have to nail down. The flooding has not to my knowledge blocked county right of ways. You're a good man.

In fact, work on ditches and other improvements can have even more expensive, unintended consequences. If the county were to undertake the work, and inadvertently cause water to back up onto another landowner's property, an inverse condemnation claim might lie (see the Texas Supreme Court's opinion issued today regarding a water authority's work on Richland-Chambers Reservoir which caused flooding of ranchland along the Trinity River). If the obstructions that exist (if any) aren't situated on county property, the best course of action may be none at all.

That's a good point. My commissioner can't get permission because the landowner believes the improved drainage (faster running water) will cause more erosion on his property down stream. I thought that might be an issue for the 3 special commissioners who will be appointed in a condemnation suit to determine the value of damages. Suffice it to say, we'll have to consider that as well. Thanks for the heads up.

Being as far from the Gulf of Mexico as we are I use the analogy with my court that once you start trying to solve a private drainage issue you will be blamed for everything that happens all the way to the Gulf of Mexico. I know that you are pretty close in Wharton but you also will get the blame for those further upstream who have problems. You cannot come out a winner on this issue.