Untitled Texas Attorney General Opinion

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The Attorney General of Texas July 15, 1985 JIM MAlTOX Attorney General

Supreme Churl Building Rouorable Charles E. Penick Opinion No.JM-334 P. 0. Box 12548 Criminal District A,ttorney Austin, TX. 7871% 2548 Bastrop County Courthouse Re: Whether a county may main- 51Y475~2501 Bastrop, Texas 78602 tain a road which has not been Telex 810/874-1387 Telecopier 51Y475-0286 dedicated to the county

Dear Mr. Per&k: 714 Jackson, Suite 700 Dallas, TX. 75202-4506 You ask whether a county commissioner in Bastrop County cau 2141742-8944 maintain a private:,y-ownedroad in his precinct. We assume that the question is phrawd in terms of the individual commissioner's 4824 Alberta Ave., Suite 180 authority because I,astropCounty Commissioners act as ex officio road El Paso, TX. 799052793 commissioners in <heir own precincts pursuant to article 6702-l. 915/53534B4 sections 3.001-3.OM. V.T.C.S. This opinion does not deal with the scope of an individual commissioner's authority under those statutes 1001 Texas. Suite 700 but only with the !)owerof a commissioners court or its proper agent Houston, TX. 77002.3111 to maintain certain types of roads. 7lY223.5885 In your letter you say that for a number of years Bastrop County has maintained a privately-owned road that is the only means of access 808 Broadway. Suite 312 Lubbock, TX. 79401.3479 betveen a rural subdivision and county road. Although you do not BOY747-5238 describe the nature or origin of the easement, you state that there is an easement across the road that runs in favor of the residents of the subdivision. You i.escribethe road as open to the public even though 4309 N. Tenth, Suite S there is a sign ;it the juncture with the county road that says t&Allen, TX. 78501-1685 5121682-4547 "private road -- keep out."

Your letter raises two separate questions: 200 Main Plaza. Suite 400 San Antonio, TX. 752052797 1. Can the cominissiouers court maintain 512l2254191 privately-owned roads?

An Equal Opportunltyl 2. If the comissioners court can maintain AffIrmaWe Actlon Employer only public toads, is the road in question sufficiently public to come within the comis- sioners court'6 authority to maintain public roads?

The legal basd~s for any action by a commissioners court must be found in the Texas Constitution or statutes. Canales v. Laughlin, 214 S.W.2d 451, 453 (Tex. 1948). The Texas Constitution authorizes the

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. . Honorable Charles D. Penick - Page 2 (~~-334)

legislature to provide for ,theconstruction and maintenance of public roads. Tex. Const. art. XI, 12. Several statutes give counties general authority to maintrLj~npublic roads. V.T.C.S. arts. 2351.3, 2351.6; V.T.C.S. art. 6702-1, 52.002(b). Neither the constitutfon nor any statute, however, gives counties general authority to maintain private roads. See Attorney General Opinion JM-200 (1984). Any authority to do sowould have to be found in a provision authorizing county maintenance of a private road under specified circumstances. See, e.g., Tex. Const. art. .III,552f (giving counties with a popula- tion of 5,000 or less power to maintain private roads for a fee, and providing that revenue from such maintenance must be used for the construction and maintenance of public roads). We find no such provision applicable to the circumstances you describe.

You also suggest in ycsur letter that the road in question might be a public road for some purposes; you do net, however, suggest what legal theory would support that claim. In a previous opinion we set out the ways that a road -an become "public" so that a county has general authority to maintain it. Attorney General Opinion .JM-200 (1984). A county can acqu:lrea road under statutes relating to the establishment of roads, or a county can condemn the road and award damages to the landowner :iu accordance with general condemnation statutes. Doughty v. DePee, 152 S.W.2d 404, 410 (Tex. Civ. App. - Amarillo 1941, writ ref'd ,w.o.m.). Also, the public can acquire an interest under the theory k!lownas prescription or adverse possession. See Ladies' Benevolent Soci.etyof Beaumont v. Magnolia Cemetery co., 288 S.W. 812. 815 (Tex. Cm&'n ADD. 1926, iudnmt adopted). Finallv. the owners &n grant the public &I inter&.; b; dedication. 288 S.iJ; at 814. Dedication can be sn express or implied dedication at common law, 288 S.W. at 814, or statutory dedication pursuant to statutes governing subdivisions. -- See Attorney General Opinion .JM-200(1984).

A 1981 statute applicr&le to Bastrop County1 limits the methods by which certain counties can show a public interest in a private road. V.T.C.S. art. 6812~1. Under article 6812h a county cannot establish or receive any public interest in a private road except by purchase, condemnation, dedication, or adverse possession. "Dedication" for the purpose of article 6812h does not include the

1. Article 681211app:.iesonly to counties with a population of 50,000 or less according to the last federal census. According to the 1980 federal census, BastrclpCounty has a population of 24,726. 1980 Census of Population, Vol. 1, Characteristics of the Population; Chapter A, Number of Inhabitants; Part 45, Texas; issued March 1982.

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Eonorable Charles D. Penick -.Page 3 (JM-334)

cormnon-lawtheory of implied dedication. See Lindner v. Hill. 673 S.W.2d 611. 616 (Tex. App. .- San Antonio 19% writ granted). Also, express verbal dedications are not dedications under 6812h. Several courts have held that artic3.e681211does not apply retroactively, so it vould not bar a claim tlult the nublic acauired an interest before August 31, 1981, under a theory n& foreclosed by article 6812h. Las Vegas Pecan i3 Cattle Co., !:ric. v. Zavala Co., 669 S.W.2d 808. 811-12 (Tex. App. - San Antonio 19:34,no writ); Breithaupt v. Navarro~County, 675 S.W.2d 335, 337-38 (Tex. App. - Waco 1984, writ ref'd n.r.e.).

The facts you recite in your letter seem to preclude a showing under any of the applicabl~ztheories that the road in question is a public road. You state tlv~t Bastrop County has not condemned the road, nor has the road been dedicated to the county. Also, you state in your legal brief that the road is being used with the owner’s permi55ion "so it may not become a county road by prescription or use adverse to that of the owner." We assume that the county has not purchased the road. If no public interest has arisen under statutes authorizing the establishment of road or condemnation, adverse possession, or dedication, (as limited by article 6812h), the commissioners court has no ,authorityto maintain the road.

SUMMARY

The Bastrop County Commissioners Court has no general authorit), to maintain private roads. A private road cantt3.t become a public road except as permitted by statute or under the common law theories of ded:lcation, as limited by article 6812h, V.T.C.S., and adverse possession.

JIM MATTOX Attorney General of Texas

TOM GREEN First Assistant Attorney Genseral

DAVID R. RICHARDS Executive Assistant Attorney General

ROBERT GRAY Special Assistant Attorney G,eneral

p. 1525 Eonorable Charles D. Penic'*- Page 4 (JM-344)

RICK GILPIN Chairman. Opinion Conmittee

Prepared by Sarah Woelk Assistant Attorney General

APPROVED: OPINION COMMITTEE

Rick Gilpin, Chairman Colin Carl Susan Garrison Tony Guillory Jfm Moellinger Jennifer Riggs Nancy Sutton Sarah Woelk

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