TRANSPORTATION CODE
CHAPTER 254. DRAINAGE ON PUBLIC ROADS
§ 254.001. DEFINITIONS. In this chapter:
(1) "Ditch" includes a drain or other watercourse.
(2) "Public road" means a road or highway that has not
been discontinued and that has been established according to law,
and includes each road or highway opened to and used by the public
for at least 10 years before March 25, 1897.
Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995.
§ 254.002. PETITION FOR DRAINAGE
CONSTRUCTION. (a) The commissioners court of a county may not
order a drainage system to be constructed unless a petition is
presented to the court as provided by this section.
(b) To be valid, the petition must include:
(1) the signatures of at least 100 registered voters
of the county;
(2) a statement of the necessity for and availability
of the drainage system;
(3) the number of miles of public roads, as accurately
as possible;
(4) the width and depth of the ditches to be built
along the first-class roads;
(5) the name and location of each natural waterway
crossed by the county's first-class roads;
(6) the distance of each waterway from another along
the first-class roads; and
(7) the names and residences, if known, of each owner
of real property adjacent to or within one mile of each first-class
road.
Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995.
§ 254.003. NOTICE OF HEARING ON ESTABLISHING DRAINAGE
SYSTEM. (a) After a petition is filed under Section 254.002, the
county clerk shall issue notice of the petition not later than the
20th day before the date on which the next regular session of the
commissioners court convenes. Each notice must contain a brief
statement of the contents of the petition and must require all
interested persons who wish to contest the petition to appear at the
court's next regular session.
(b) The county clerk shall post a copy of the notice:
(1) at the courthouse door; and
(2) at each of four other public places in the county,
not more than one of which may be posted in the same municipality.
(c) The sheriff shall post the notices and shall return them
to the county clerk on or before the first day of the term.
(d) For services provided under this section, the county
clerk shall receive a fee of $1.50.
Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995.
§ 254.004. HEARING AND DETERMINATION ON ESTABLISHING
DRAINAGE SYSTEM. (a) At the hearing on the petition, the
commissioners court shall:
(1) consider the petition and hear all testimony for
or against its provisions; and
(2) determine whether the drainage system proposed by
the petition is necessary or advisable for the public benefit.
(b) If the court approves the petition, the court shall:
(1) order the decision entered into the court's
minutes and made part of the record; and
(2) enter into the minutes whether notice was properly
served.
(c) The court's order is final if notice was properly
served.
(d) If the court disapproves the petition for the drainage
system, the court may not hear another application for the drainage
system before the first anniversary of the date of disapproval.
Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995.
§ 254.005. AUTHORITY TO PROVIDE DRAINAGE. (a) The
commissioners court of a county may order the construction or
maintenance of ditches as provided by this chapter at any regular
session of the court.
(b) If a ditch is constructed under this chapter, the ditch
must be placed on or within the exterior lines of a public road in
the county and must have the capacity to carry off into a natural
waterway all surface water reasonably adjacent that may collect in
the ditch from natural causes.
(c) The commissioners court shall:
(1) make a drain on each side of a public road when
necessary and use the dirt from the drain excavation to build the
road; and
(2) drain a public road when necessary and have one or
more ditches cut for that purpose, taking into account the natural
waterflow and causing as little damage as possible to adjacent
property owners.
(d) In connection with its authority to construct and
maintain ditches, the commissioners court may construct any
necessary side, lateral, spur, or branch ditch.
(e) The commissioners court may acquire by purchase or
condemnation any new or wider right-of-way not wider than 100 feet
for streambed diversion and drainage channels, but only for
locating, constructing, or maintaining a county road. The cost of
acquisition may be paid from the county road and bridge fund or any
available county money.
(f) If damages are suffered by a property owner, the
commissioners court shall determine the damages and pay the
property owner out of the county general fund. If the commissioners
court and the property owner disagree as to the amount of damages,
the amount may be determined by civil suit.
Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995.
§ 254.006. RESTRICTIONS ON DRAINAGE
AUTHORITY. (a) The commissioners court of a county may not
construct a ditch without an outlet to a natural waterway large
enough to carry off all water that may collect in the ditch.
(b) The commissioners court may not change the natural
course of any branch, creek, or stream. The public road must cross
a branch, creek, or stream at the water's natural crossing.
(c) A culvert must be of sufficient size to allow water to
flow, at its natural rate at its normal peak level, from the side of
the road where the road intersects the natural channel to the
natural channel at the other side of the road.
Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995.
§ 254.007. PRIVATE DITCHES. An owner of real property
abutting a road or ditch or the owner of a tract of property that is
located wholly or partly within one mile of a road or ditch may
construct at the owner's cost lateral drainage ditches and may
connect those ditches with a main ditch constructed under this
chapter.
Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995.
§ 254.008. REGULATION OF PRIVATE DITCHES IN COUNTIES OF
100,000 OR LESS. (a) In a county with a population of 100,000 or
less, the commissioners court by order may:
(1) remove the blockage of a ditch on real property
that is not owned by the county, if the ditch connects with a
drainage ditch constructed or maintained by the county; or
(2) provide for the removal or clearance of a blockage
from a ditch that is in violation of an order adopted under this
section.
(b) Before a commissioners court acts to remove or clear a
blockage under this section, the court shall send a notice by
certified mail to the record owners of the property on which the
blockage is located in violation of an order adopted under this
section. The notice must inform the owners of the order and of the
other relevant provisions of this section. The court may not remove
or clear the blockage before the 20th day after the date the notice
is sent.
(c) The commissioners court shall pay the costs incurred in
clearing or removing a blockage under this section.
(d) In this section:
(1) "Blockage" means an accumulation of refuse,
vegetation, or other matter in a ditch that substantially decreases
or stops the flow of water through the ditch.
(2) "Ditch" includes a culvert.
Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995.
§ 254.009. DRAINAGE SYSTEM SURVEY. (a) After approval
of a petition under Section 254.004, the commissioners court shall
hire a surveyor to conduct a survey under this section for an amount
determined by the court at the same meeting or at a subsequent term
of court. The surveyor must be an engineer.
(b) The survey shall be applied first to the first-class
roads, followed by the second-class and third-class roads.
(c) The surveyor shall make the survey and system of levels
required by this section as soon as practicable after the surveyor
is employed.
(d) The surveyor shall:
(1) run a line of levels along the county's public
roads, measure the roads from beginning to end, and measure the
distance of each waterway crossed by a public road from the location
of the beginning of the waterway;
(2) place stakes or monuments along the line at
intervals of 100 feet, with intermediate stakes that may be
necessary, numbered progressively;
(3) establish permanent benchmarks along the line at
intervals of one mile or less as necessary;
(4) establish by stakes or monuments different in
character and appearance from all other stakes or monuments the
highest point on the road between each of the natural waterways
crossed by the road;
(5) measure and establish by suitable marks the
frontage of each tract of real property abutting the road; and
(6) if there is a natural waterway adjacent to the line
of the road and ditch and the waterway is necessary as an outlet for
the water at any point on the ditch, measure the distance to the
waterway and run the line of levels to the waterway at the nearest
practicable point on the road and ditch.
(e) The surveyor shall prepare a map showing:
(1) the location of the ditch or ditches, with the
position of stakes or monuments with numbers corresponding with
those on the ground;
(2) the location of benchmarks with their elevations
referred to an assumed or previously determined datum; and
(3) the lines and boundaries of adjacent property and
the courses and distances of any adjacent watercourse, with a
profile of the line of the ditch showing the assumed datum and the
grade line of the bottom of the ditch, and the elevation of each
stake, monument, or other important feature along the line, such as
the top of the banks, the bottom of all ditches or watercourses, the
surface of the water, the top of the rail, the bottom of the tie, the
foot of the embankment, and the bottom of each borrow pit of each
railroad.
(f) The map or an explanation accompanying the map must:
(1) give in tabular form the depth of the cut and the
width at the bottom, at the top, at the source, at the outlet, and at
each 100-foot stake or monument to the ditch;
(2) show the total number of cubic yards of earth to be
excavated and removed from the ditch between each natural waterway
into which the water is to be conveyed;
(3) show an estimate of the cost of each portion of
each ditch located between natural waterways crossed by the road;
and
(4) show an estimate of total cost of the whole work.
(g) The surveyor shall also prepare detailed specifications
for the execution of the project.
(h) If in the surveyor's opinion it is advantageous to run a
ditch underground through drainage tiles, the surveyor shall so
state in the surveyor's report, map, and specifications, with a
statement of the location of the underground ditch, its length, and
the dimensions or character of tiling or other material required
for the underground ditch.
(i) The surveyor shall file a report and the survey, map,
and explanation with the county clerk as soon as those items are
completed.
Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995.
§ 254.010. APPOINTMENT OF JURY OF VIEW. (a) At any
regular or called session of the commissioners court after the
filing of the surveyor's report, the court shall appoint five real
property owners of the county as a jury of view. An appointee may
not:
(1) have a direct interest in property adjacent to a
proposed ditch or within one mile of a proposed ditch; or
(2) have a family relationship with a person having a
direct interest in property described by Subdivision (1).
(b) The court may appoint a single jury of view for the
entire proposed drainage system or a separate jury of view for each
ditch.
(c) If the jurors selected fail or refuse to perform their
duties or the report of the jury is rejected by the commissioners
court, the court may appoint another jury of view with the same
duties as the initial jury.
(d) A member of a jury of view is entitled to compensation in
the amount of $3 for each day of service.
(e) After the appointment of a jury of view, the county
clerk shall provide the jurors with a certified copy of the
petition, court order, and the original surveyor's report with
maps, specifications, and the surveyor's estimate of costs.
Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995.
§ 254.011. OATH OF JURY. Members of the jury of view
must take the following oath before assuming their duties: "I do
solemnly swear that I am not directly interested in the
construction of the proposed ditch, either as the owner or
otherwise, or in adjacent land lying within one mile of the proposed
ditch, and that I am not related to any person who is so interested.
I further swear that I have no bias or prejudice toward any person
directly interested in the ditch, and that I will assess the amount
of expense due on and by all adjacent lands lying within one mile of
the ditch, according to law, without fear, favor, hatred, or hope of
reward, to the best of my knowledge and ability. So help me God."
Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995.
§ 254.012. NOTICE TO PROPERTY OWNERS OF JURY
PROCEEDINGS. (a) Not later than the fifth day before the date of
the meeting to determine costs of ditch construction, the jury of
view shall issue notice of the time and place of the meeting to each
property owner or to the agent of each property owner who owns real
property adjacent to or within one mile of the proposed ditch. The
notice must state that:
(1) the purpose of the meeting is to determine each
property owner's share of the expense of constructing the ditch;
and
(2) each property owner's share of the total expense of
constructing the ditch is to be a proportional share of one-half of
the total expense of constructing the ditch.
(b) The notice may be served by anyone competent to testify
and shall be returned and filed with the jury's final report.
(c) Notice to a property owner who is not a resident of the
county and does not have an agent or representative in the county
shall be published in a newspaper in the county in the manner
provided for giving notice to a nonresident defendant in a district
court action. The notice must be published at least four weeks
before the jury's meeting date.
Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995.
§ 254.013. CLAIMS BY PROPERTY OWNERS. (a) A person
whose real property may be affected by the ditch may appear before
the jury of view and express the person's opinion on any matter
relating to the assessment of expense against the person. The owner
at or before the time stated in the notice of the jury's meeting may
present to the jury a written statement of an objection to or
dissatisfaction with the ditch and any claim for damage sustained
because of the construction of the ditch.
(b) Failure to make an objection or claim for damages under
Subsection (a) is a waiver of all claim or right to make the
objection or claim.
(c) The jury shall return each claim or objection to the
commissioners court with the jury's report.
(d) An adjacent property owner may appear before and be
heard by the commissioners court on the property owner's protest or
claim against the action of the jury.
Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995.
§ 254.014. DETERMINATION OF DAMAGES AND ASSESSMENTS;
ACTION OF COMMISSIONERS COURT. (a) After giving the required
notice and conducting a meeting at which all interested persons
have been heard, the jury of view shall:
(1) consider all of the partial estimates and the
surveyor's total cost estimate;
(2) draw parallel lines one mile on each side of the
ditch; and
(3) apportion to each parcel of real property abutting
or within the parallel lines and to the owner of each parcel a
proportional share of one-half of the total expense of the ditch,
considering the relative amount of benefit to the property derived
from the ditch.
(b) The jury shall determine the damages due to any property
owner whose property is crossed by any spur, branch, or lateral
ditch constructed by order of the commissioners court. Before the
ditch may be opened, the damages must be paid by an order of the
court out of the money set aside for the ditch.
(c) The jury shall make a sworn report to the court, signed
by at least three jurors, as soon as practicable after its meeting.
The report must include:
(1) an accurate description of each tract of property
assessed, with the number of acres and the names of the owners; and
(2) the amount assessed against each tract and its
owners.
(d) The jury shall return the surveyor's report and records
to the county clerk. The county clerk shall file the jury's report
and the surveyor's report and records. The reports and records are
public information after filing.
(e) The commissioners court shall approve or reject the
jury's report at its next regular or called term.
Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995.
§ 254.015. APPEALS BY PROPERTY OWNERS. (a) A person
aggrieved by an assessment may appeal from the final order of the
commissioners court approving the report of the jury of view to the
appropriate court in the county by:
(1) giving notice of the appeal in open court;
(2) having the notice entered as part of the judgment
of the court; and
(3) filing a transcript of the proceeding in the
commissioners court with the justice or clerk of the court to which
the appeal is taken.
(b) The transcript must be filed not later than the 10th day
after the date the judgment of the commissioners court is entered,
and must be filed with an appeal bond that has at least two good
sureties. The appeal bond must:
(1) be in an amount that is at least twice the amount
of the probable costs to accrue;
(2) be conditioned that the appellant will prosecute
the appeal to effect and pay all costs that may be adjudged against
the appellant in the appeal; and
(3) be approved by the clerk or justice of the court.
(c) The issue in an appeal from an assessment of expense is
whether the assessment made against the appellant for construction
of the ditch is in proportion to the benefit to the real property
derived from the ditch.
(d) The issue in an appeal from an assessment of
compensation is whether the assessment of compensation made by the
jury of view is adequate to the damage suffered and to the value of
the property.
Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995.
§ 254.016. PROCEDURES GOVERNING PROPERTY OWNER
APPEAL. (a) In an appeal of an assessment under Section 254.015,
the appellant has the burden of proof.
(b) The court that tries the appeal shall determine the
amount of expense chargeable to the appellant, or the amount of
compensation due the appellant, as appropriate, and shall enter
that amount as the court's judgment.
(c) Except as provided by Subsection (d), the costs of the
appeal shall be adjudged against the appellant.
(d) The costs of the appeal shall be adjudged against the
county if the court finds that:
(1) the amount chargeable to the appellant is less
than the amount of expense charged by the jury of view; or
(2) the appellant is entitled to a greater amount of
compensation as damages than determined by the jury of view.
(e) Not later than the fifth day after the date of the
judgment, the clerk of the court or the justice, as appropriate,
shall issue a certified copy of the judgment and return it to the
commissioners court. The commissioners court shall:
(1) file the judgment with the records relating to the
ditch; and
(2) enter the judgment as the judgment of the
commissioners court.
(f) After the commissioners court enters the judgment on
appeal:
(1) there is no further appeal from the judgment of the
court for either party to the appeal; and
(2) the appellant is liable for the amount of expense
or entitled to the amount of compensation, as applicable, as
determined by the judgment.
Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995.
§ 254.017. CERTIFICATION AND COLLECTION OF ASSESSMENTS;
LIENS. (a) At the same term at which the commissioners court
enters its order for the construction of the ditches and adjoining
roadway or at any subsequent term, the court shall enter on its
minutes a list of each tract of real property for which an
assessment of expense was made and reported by the jury of view and
approved by the court. The list must include:
(1) the names of the owners and original grantees of
each tract;
(2) the number of acres covered by the assessment; and
(3) the amount of the assessment.
(b) The county clerk shall issue a certificate against each
person on the list showing the amount of each assessment, the ditch
or road for which the assessment was issued, and the tract of
property on which the assessment was issued. The certificate must
be signed by the county judge in open court and attested under the
hand and seal of the county clerk, and that fact shall be noted in
the minutes of the court.
(c) All amounts assessed against any property and its owner
by the jury of view or the order of the court are a lien on the
property unless prohibited by the Texas Constitution.
(d) The county judge shall deliver the certificates to the
county treasurer, and shall take a receipt for delivery from the
treasurer and file it with the county records relating to the ditch.
The treasurer shall collect each amount due on the certificates and
deposit the money collected to the credit of the county road and
bridge fund.
(e) If a person against whom a certificate is issued does
not pay the amount due to the treasurer on demand, the treasurer
shall report that fact to the county attorney. The county attorney
shall immediately file suit for foreclosure of the lien or for a
personal judgment, as permitted by law.
Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995.
§ 254.018. APPROPRIATION FOR DITCH
CONSTRUCTION. Following its approval of the report of the jury of
view, the commissioners court may order that a portion of the road
and bridge fund or the special road and bridge fund, if necessary,
be set aside for the construction of the ditch described in the
report.
Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995.
§ 254.019. CARRYING OUT CONSTRUCTION OF
DITCHES. (a) The commissioners court shall order the person in
charge of the road adjoining the proposed ditch to construct the
ditch in the manner prescribed, using the earth taken from the
excavation to build a raised road adjoining the ditch. In the
alternative, the court may hire a suitable and competent person
other than the person normally in charge of the road adjacent to the
proposed ditch to oversee the construction of the ditch for
compensation in an amount ordered by the court.
(b) The court by order shall assign to the person in charge
of constructing the ditch all county employees assigned to the road
adjacent to the ditch and all county equipment and materials. The
order shall provide that the person may employ additional labor or
purchase additional equipment or material to construct the ditch.
The order must show the amount to be paid to the director of
construction for the person's services. The court shall order the
money required for additional labor, equipment, or material to be
paid from the money set aside from the road and bridge fund.
(c) The drainage system shall be applied first to the
county's first-class roads, followed by the second-class and
third-class roads.
(d) The county may construct one or more ditches at the same
time, as the financial condition of the county permits.
Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995.
