Texas Attorney General Opinion: WW-992 Page: 4 of 5
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Hon. Jimmy Morris, page 4 (WW-992)
freseen and presented in the condemnation. City of Lagrange v.
Pieralt, 175 Tex. 23, 175 S.W.2d 243.
"Question No. 2: If question number 1 is
answered in the affirmative, from what funds would
the county be liable?"
Navarro County could use its permanent improvement and
flood control funds to pay on such judgments; however, the
County could not limit its liability to such funds as the
general fund would also be liable. White v. Calaway, 282
S.W. 642 (Civ.App. 1926, error ref.).
"Question No. 3: If question number 1 is
answered in the .affirmative, would the land owners
have to prove negligence?"
Such liability is not predicated upon negligence but upon
a "taking" under Art. I, Section 17 of the Texas Constitution.
Harris County v. Gerhart, 283 S.W. 139; City of Austin v.
Howard, 15t8 S.W.2d 55b; Tarrant County, etc. v. Fowler, 175
S..T2d 694.
"Question No. 4: If question number 1 is
answered in the affirmative, what effect, if any,
would the question of liability have due to the
Navarro County merely paying for all maintenance
of the dams?"
This question seems to contradict Question No. 1, be-
cause No. I presupposes that Navarro County is the condemnor.
Doubtless your question means would the mere paying for main-
tenance render the County liable for damages? Our answer is
"No. "
"Question No. 5: As condemnation is brought
in the name of the State of Texas (by authority of
Art. 6674n), would the State also be liable?"
Article 6674n is not applicable to the condemnation in
question but Article 1581e, V.C.S. gives counties the right
of condemnation for flood control purposes. No liability,
whatever, exists against the State of Texas.
S U M M A R Y
Should Navarro County condemn land
and build a dam, it would be liable in a
damage suit to owners of other lands for
overflow or backwater on said lands; such
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Texas. Attorney-General's Office. Texas Attorney General Opinion: WW-992, text, February 7, 1961; (https://texashistory.unt.edu/ark:/67531/metapth267604/m1/4/: accessed July 17, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu.; crediting UNT Libraries Government Documents Department.