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                                     March 28.1991


Honorable Robert G. Bond                   Opinion No. DM-13
McCulloch County Attorney
County Courthouse, Room 302                Re: Authority of a commissioners court to
Brady, Texas 76825                         maintain roads used for school bus purposes
                                           (RQ-2175)
Honorable Clay Strange
Mitchell County Attorney
County Courthouse, Room 206
Colorado City, Texas 79512

Dear Messrs. Bond and Strange:


         You have both asked about county maintenance of roads used by school
buses.

         Mr. Bond asks:

           Under what circumstances, if any, is it proper for County
           Commissioners to maintain a private road which is used as a
           school bus route? Does the answer depend on whether travel
           over such a road is necessary to reach schoolchildren entitled to
           bus transportation, or whether such access is for the convenience
           of the schoolchildren?

         In that connection, he advises:

                McCulloch County is a rural county of roughly 10,000
           population. In all four of our precincts, there are numerous
           residences which are connected to the public roads by private
           roads not dedicated to County use. In many cases, the
           landowners desire to keep the roads private to discourage
           poachers and persons desiring to dump trash, unwanted animals,
           etc in the outlying areas. These private roads are of various
           lengths, with varying numbers of residences lying along them.



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Honorable Robert G. Bond - Page 2 (DM-13)
Honorable Clay Strange



               The school buses from each of our three school districts
           often travel down these private roads to reach residences where
           schoolchildren who are eligible for bus transportation reside. In
           some cases, the bus may travel a mile or so down a private road
           to reach one such residence, and return to the public road. In
           other cases, the bus may travel from one public roadway to
           another via a private road, stopping by several residences along
           the way.

               These private roads are of course unpaved, and the school
           buses obviously contribute heavily to their deterioration
           (conversely), the unimproved roads also contribute heavily to
           the deterioration of the school buses.


        Mr. Strange writes:

           It has been asked [that I make] this request: ‘Since Independent
           School Districts are required under law to provide bus service to
           public school children and since those buses travel on private
           roads, does the school have an easement for that purpose of
           travel? Could then, by interlocal cooperation agreement, the
           school contract with the county to maintain that easement in
           exchange for some kind of genuine consideration be it financial
           or in-kind.‘1

        In explanation he says:

           [It] is not uncommon at all in our county for a number of roads
           during periods of wet weather to be completely impassable
           without four wheel drive unless the impervious surface is
           present. The cost of providing such a surfacing privately can be

                 tThough school districts are ‘authorized” by section 21.174 of the Education Code to
undertake the transportation of students, they “are not required to do so.” Mount PI-
        D&. v. -766          S.WM 2OS, 2l3 (Tea. 1989). a &&mas v. Dickinson Public Schools,
108 S.Ct. 2481 (1988) (United States Constitution does not require provision of school bus service to
students).




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Honorable Robert G. Bond - Page 3 (DM-13)
Honorable Clay Strange



           prohibitively expensive. The question is further complicated by
           the fact that some of these roads are passable by light vehicles
           but not so for buses and in some cases would be unsafe for the
           bus to attempt to travel; i.e., the only reason for a family to
           improve the road would be to accommodate the buses.

         In 1980, section 52f was added to article III of the Texas Constitution.                   It
reads:

               A county with a population of 5,000 or less, according to the
           most recent federal census, may construct and maintain private
           roads if it imposes a reasonable charge for the work. The
           Legislature by general law may limit this authority. Revenue
           received from private road work may be used only for the
           construction, including right-of-way acquisition, or maintenance
           of public roads.

       We need not address the scope of this provision since there is no comparable
provision for counties with a population larger than 5,000. According to the 1980
federal census (the one most recently published), McCulloch County is shown to
have.a total population of 8,735 and Mitchell County is shown to have a population
of 9,088. Thus, article III, section 52f of the constitution is inapplicable to either
county.

       In the absence of constitutional authorization we do not believe a
commissioners court ordinarily possesses the legal authority to maintain or improve
a private road, even though it is used as a school bus route.* In 1975, this office
reviewed a bill that would have enacted a statute allowing the commissioners court
of any county to do work on private roads for compensation. Citing &par~.e
                                                                 . *
a         357 S.W.2d 740 (Tex. 1962). Eannla Comrt                                 ,
&&y, 380 S.W.2d 878 (Tex. Civ. App.--Texarkana 1964, writ ref d), and Godlev :.
Duval County, 361 S.W.2d 629 (Tex. Civ. App.-San Antonio 1962, no writ), among
other cases, the attorney general concluded in Letter Advisory No. 92 (1975) that
the bill, if enacted, would be held unconstitutional by the courts as not “county

                  *In Dinwiddie v. m                        Prod. CQUL,373 S.W.Zd 867 (Tex. Civ. App. -
- El Paso 1963, no writ), a mention is made in passing of county maintenance of a private road to keep
it passable for school buses, but the legality of doing so was not addressed. & 36 D. Brooks, Qu@~y
          .    . .
and                       5 40.3, a.26 at 3% (Texas Practice 1989) (former statutory law).




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Honorable Clay Strange



business.” & Tex. Const. art. V 9 18; (authority of a county to maintain private
roads) Attorney General Opinions JM-842 (1988), JM-334 (1985) and JM-200
(1984).

        You also raise the possibility that the school district has an easement in the
roads in question. In counties such as McCulloch and Mitchell Counties having a
population no greater than 5O$JOOaccording to the most recent federal census, a
public interest in a private road may be established, acquired, or received by a
county only by purchase, condemnation, dedication, or final judgment of adverse
possession, V.T.C.S. art. 68l2h. & Attorney General Opinions JM-842, JM-334.
This statute does not expressly prevent w         districts from acquiring interests in
private roads in a different manner, but we do not believe’school districts acquire
prescriptive easements in private roads merely because their school buses use them
to pick up school children. a 31 Tex. Jur. 3d Easements                        in Real
m,         8s 33 a,     at 637. Even if the school districts had acquired interests in
the roads, the county could not gratuitously improve and maintain them.

                                   SUMMARY

              County commissioners are not authorized to maintain
          private roads, even though the roads are used for school bus
          routes.

                                                     Very truly yours,




                                                     DAN      MORALES
                                                     Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY (Ret)
Special Assistant Attorney General




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Honorable Clay Strange



REl’EA HICKS
Special Assistant Attorney General

SUSAN GARRISON
Acting Chairman, Opinion Committee

Prepared by Susan L Garrison
Assistant Attorney General




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