CHAPTER 254. DRAINAGE ON PUBLIC ROADS

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TRANSPORTATION CODE

TITLE 6. ROADWAYS

SUBTITLE C. COUNTY ROADS AND BRIDGES

CHAPTER 254. DRAINAGE ON PUBLIC ROADS

Sec. 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, Sec. 1, eff. Sept. 1, 1995.

Sec. 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, Sec. 1, eff. Sept. 1, 1995.

Sec. 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.

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, Sec. 1, eff. Sept. 1, 1995.

Sec. 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.

(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, Sec. 1, eff. Sept. 1, 1995.

Sec. 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.

(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, Sec. 1, eff. Sept. 1, 1995.

Sec. 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.

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, Sec. 1, eff. Sept. 1, 1995.

Sec. 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, Sec. 1, eff. Sept. 1, 1995.

Sec. 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.

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, Sec. 1, eff. Sept. 1, 1995.

Sec. 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.

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, Sec. 1, eff. Sept. 1, 1995.

Sec. 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.

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, Sec. 1, eff. Sept. 1, 1995.

Sec. 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, Sec. 1, eff. Sept. 1, 1995.

Sec. 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.

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, Sec. 1, eff. Sept. 1, 1995.

Sec. 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.

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, Sec. 1, eff. Sept. 1, 1995.

Sec. 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.

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, Sec. 1, eff. Sept. 1, 1995.

Sec. 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.

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, Sec. 1, eff. Sept. 1, 1995.

Sec. 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.

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, Sec. 1, eff. Sept. 1, 1995.

Sec. 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.

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, Sec. 1, eff. Sept. 1, 1995.

Sec. 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, Sec. 1, eff. Sept. 1, 1995.

Sec. 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.

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, Sec. 1, eff. Sept. 1, 1995.

State Codes and Statutes

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