                                 IN THE
                         TENTH COURT OF APPEALS

                               No. 10-10-00044-CV

CORYELL COUNTY, TEXAS,
                                                          Appellant
v.

MARY BETH HARRELL AND
ROBERT HARRELL,
                                                          Appellees


                          From the 52nd District Court
                             Coryell County, Texas
                         Trial Court No. CAC-09-38,755


                                    OPINION


      Mary Beth and Robert Harrell filed a lawsuit against Don and Wynette Russell

concerning an easement across the Harrells’ property. The Harrells added Coryell

County as a defendant to the suit and, in a second amended petition, specifically noted

that the claim against the County was in the nature of a contest, pursuant to section

258.004 of the Texas Transportation Code, to the County’s road map, which designated

the disputed easement as a county road. The County filed a motion to dismiss for lack

of jurisdiction which the trial court denied. The County appealed. Because the trial
court did not err in denying the County’s motion, the trial court’s order is affirmed.

                                        IMMUNITY

       In one issue, the County argues that the trial court erred in exercising jurisdiction

over the County. Its argument is twofold: 1) that the Harrells’ claim is actually a

trespass to try title action for which immunity is not waived, and 2) that Chapter 258 of

the Transportation Code does not provide a clear and unambiguous waiver of the

County’s immunity. We find that immunity is waived under Chapter 258.

Law

       Sovereign immunity protects the State and its various divisions, such as agencies

and boards, from suit and liability, whereas governmental immunity provides similar

protection to the political subdivisions of the state, such as counties, cities, and school

districts. Travis Cent. Appraisal Dist. v. Norman, 342 S.W.3d 54, 57-58 (Tex. 2011) (citing

Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n.3 (Tex. 2003)). Both types of

immunity are common law doctrines, but the waiver of immunity has traditionally been

left to the Legislature, assuming it to be "better suited to balance the conflicting policy

issues associated with waving [sic] immunity." Id. at 58 (quoting Wichita Falls State

Hosp., 106 S.W.3d at 695). When dealing with these immunities, the Legislature has

been required to express its intent clearly and unambiguously. Id. (citing Univ. of Tex.

Med. Branch at Galveston v. York, 871 S.W.2d 175, 177 (Tex. 1994) and TEX. GOV'T CODE

ANN. § 311.034 (West 2011) (codifying the clear and unambiguous standard)). Perfect


Coryell County v. Harrell                                                             Page 2
clarity, however, has not been insisted upon when the statute left no doubt about the

Legislature's intentions. Id. The clear and unambiguous standard is never applied

mechanically to defeat the law's purpose or the Legislature's intent. Kerrville State Hosp.

v. Fernandez, 28 S.W.3d 1, 3 (Tex. 2000). Therefore when a waiver of immunity has been

necessary to make sense of a statute, the Texas Supreme Court has held that the waiver

is clear and unambiguous. Travis Cent. Appraisal Dist., 342 S.W.3d at 58 (citing City of

LaPorte v. Barfield, 898 S.W.2d 288, 291-92 (Tex. 1995)).

       An order which grants or denies a plea questioning the trial court’s jurisdiction,

such as the motion filed by the County, is reviewed de novo. See State v. Holland, 221

S.W.3d 639, 642 (Tex. 2007).

Characterization of Harrells’ Claim

       The County first argues that the Harrells’ suit is properly characterized as a

trespass to try title action. The County’s argument implies that if the claim is a trespass

to try title action, it cannot be a contest under Chapter 258 of the Texas Transportation

Code. We disagree. Even if the claim is properly characterized as a trespass to try title

action, we need not address this portion of the County’s argument if we find an express

waiver of governmental immunity. Because, as more fully discussed below, we have

determined the Harrells’ claim against the County is a contest under Chapter 258 of the

Texas Transportation Code, the trial court did not err in denying the County’s motion to

dismiss for lack of jurisdiction on the County’s assertion that the suit was a trespass to


Coryell County v. Harrell                                                            Page 3
try title action.

Waiver by the Transportation Code

       The County next argues that Chapter 258 of the Transportation Code does not

provide a clear and unambiguous waiver of the County’s immunity.

       The Relevant Provisions

       Chapter 281 of the Transportation Code, initially enacted in 1981 and codified in

the Transportation Code in 1995, provides that a county with a population of 50,000 or

less may acquire a public interest in a private road only by purchase, condemnation,

dedication, or a court's final judgment of adverse possession. TEX. TRANSP. CODE ANN.

§§ 281.001, 281.002 (West 1999) (emphasis added). The statute is not retroactive. Las

Vegas Pecan & Cattle Co. v. Zavala County, 682 S.W.2d 254, 256 (Tex. 1984).

       But, Chapter 258, entitled CLARIFICATION     OF   EXISTENCE   OF   PUBLIC INTEREST   IN


ROAD   BY   ADOPTION    OF   COUNTY ROAD MAP and added to the Transportation Code in

2003, provides that, notwithstanding the limitations of Chapter 281, a county may clarify

a public interest in a road by the adoption of a county road map. TEX. TRANSP. CODE

ANN. § 258.001 (West Supp. 2011) (emphasis added). In other words, if there is some

question about the public nature of a road a county thinks is within its control, Chapter

258 provides the means to clarify the county’s claim to that road.             To achieve a

clarification,

       [t]he commissioners court of a county may propose a county road map
       that includes each road in which the county claims the existence of a
Coryell County v. Harrell                                                             Page 4
       public interest:

               (1) under Chapter 281 or other law; or

               (2) as a result of having continuously maintained the road with
               public funds beginning before September 1, 1981.

TEX. TRANSP. CODE ANN. § 258.002(a) (West Supp. 2011).

       The failure of the county to include a road in which the county has previously

acquired a public interest by purchase, condemnation, dedication, or a court’s final

judgment of adverse possession on a county road map proposed and adopted pursuant

to section 258.002, however, does not affect the status of the omitted road. Id. (g). In

other words, if there is no question about the county’s claim of a public interest in a

road, the status of that road as a public road will not be affected if it is left off of the

Chapter 258 county road map. Thus, when there is no question as to the status of a

county public road, the road does not need to be included on the Chapter 258 county

road map.

       But when a road is included on a Chapter 258 county road map, a person who

asserts a private right, title, or interest in that road may protest, either in person or in

writing, the inclusion of the road in the county road map. Id. § 258.002(b). If a person

protests, the county commissioners appoint a jury of view to determine the validity of a

county’s claim.       Id.   The determination of the jury of view is binding on the

commissioners court and the map must be revised accordingly. Id. Once a Chapter 258

map is adopted, the map is conclusive evidence of the public’s right of access over a
Coryell County v. Harrell                                                             Page 5
road included on the map and the county’s authority to spend public money to

maintain such a road. Id. § 258.003.

       However, the map’s conclusiveness is subject to section 258.004, the contest

provision. Whether or not an oral or written protest is made, “a person asserting a

private right, title, or interest in a road, in which the existence of a public interest is

asserted under this chapter may contest the inclusion of the road in the county road

map by filing a suit in a district court in the county in which the road is located….” Id. §

258.004(a) (emphasis added); Bastrop County v. Samples, 286 S.W.3d 102, 109 (Tex.

App.—Austin 2009, no pet.). The contestant has two years from the date of the map’s

adoption to file a suit.

       Discussion

       The County acknowledges that it began the process of developing a county road

map in 2008 pursuant to Chapter 258. The road about which the Harrells complain, CR

65, was included in that map. The Harrells protested the inclusion, and a jury of view

denied the protest. No one disputed the Harrells’ ability to take that action. And now

the Harrells have contested the inclusion of the road on the Chapter 258 map by filing

suit in district court.

       Counties have been granted a powerful tool to clarify and resolve any of their

various claims to roads in the county by simply including the road in a county road

map. By this method, a county can forever establish its claim. To counter this sweeping


Coryell County v. Harrell                                                             Page 6
power given to counties, the Legislature balanced the rights of landowners that might

be adversely affected by a county’s claim by establishing a procedure to contest that

claim in district court. While the statute might not be a model of perfect clarity, what is

clear is that the Legislature, by enacting section 258.004, gave landowners the ability to

sue a county to contest the county’s claim of a public interest in a road and included in a

county’s Chapter 258 road map which the landowner contends is a private road. The

Legislature specified the process and that process expressly included filing a suit in

district court.

       Conclusion

       The Legislature has thus expressly waived immunity from suit when a private

person is challenging the county’s assertion of a public interest in a road by including

the road in a Chapter 258 county road map. In this instance, the County asserted a

public claim to CR 65. The Harrells have availed themselves of the right given to them

by the Legislature to challenge the public claim asserted. Thus, we hold that Chapter

258, and specifically section 258.004, clearly and unambiguously waives the County’s

immunity in contests to county road maps proposed pursuant to Chapter 258; and the

trial court did not err in denying the County’s motion to dismiss for lack of jurisdiction

on this basis.

Limitation of Waiver of Immunity?

       The County argues that because it had received a dedication of the road by


Coryell County v. Harrell                                                            Page 7
Harrells’ predecessors in interest, Chapter 258 is not a clear and unambiguous waiver of

the County’s immunity, and the Harrells cannot contest the county road map in district

court. This argument is essentially one for a limitation of Chapter 258’s waiver of

immunity

       “Under this Chapter”

       The County contends that the language, “under this chapter,” in section

258.004(a), the contest provision, means that a contest is only available if a county

claims an interest in a road by having continuously maintained the road with public

funds beginning before September 1, 1981. See TEX. TRANSP. CODE ANN. §§ 258.002(a)(2);

258.004(a) (West Supp. 2011) (“A person asserting a private right, title, or interest in a

road in which the existence of a public interest is asserted under this chapter may contest

the inclusion of the road in the county road map by filing a suit in district court in the

county in which the road is located….”) (emphasis added). Thus, the County argues,

because it initially received a dedication of the road in controversy, it did not claim an

interest “under this chapter.”

       As stated previously, Chapter 258 allows a county to clarify its interest in a road

by proposing a county road map which includes roads the county claims are public

through either (1) Chapter 281, or other law; or (2) by continuous maintenance. Id. §§

258.001; 258.002(a).        Pursuant to section 258.002, the commissioners court was not

limited to including only roads that it had continuously maintained in its proposed


Coryell County v. Harrell                                                            Page 8
county road map. If the Legislature meant for a Chapter 258 county road map to be

limited to roads claimed by continuous maintenance, there would have been no

purpose to include subsection (1) of section 258.002(a).               That is to say, if section

258.002(a) is only for the County’s public interest in a road by continuous maintenance,

as provided for in 258.002(a)(2), no purpose is served by having section 258.002(a)(1) as

part of the statute. The County claimed a public interest in the road on the Harrells’

property, CR 65, which it contends was acquired through a dedication, and included it

in the county road map. If there was no question of the County’s interest in CR 65

because it received the road pursuant to a valid dedication, it was not required to

include the road on the Chapter 258 county road map and the omission of it from the

map would not change the road’s status. See id. § 258.002(g).

       But more importantly, for our purposes, the Legislature likewise put no limits on

which of a county’s claims could be contested under section 258.004(a). By including

the road in controversy in the county road map, the County asserted a public interest in

that road under Chapter 258.          Thus, the language “under this chapter” in section

258.004(a) means the assertion of a public interest by any of the methods mentioned in

section 258.002(a), not just continuous maintenance, through which a road could be

placed on the county road map.1



1 The County has only presented a minute entry of its purported public dedication of CR 65. That entry
states as follows:


Coryell County v. Harrell                                                                      Page 9
        Burden of Proof

        The County also argues that because continuous maintenance is the only type of

claim for which the Legislature specified the burden of proof, then necessarily it is the

only type of claim that can be contested by the contest provision. By this argument, the

County suggests the Legislature’s express waiver of immunity in section 258.004(a) is

limited by section 258.004(b). We disagree.

        Generally, the burden of proof in a case is determined from the pleadings and

rests upon the party against whom judgment must be entered under the pleadings if

neither side introduced any evidence. See Walker v. Money, 120 S.W.2d 428, 431 (Tex.

1938). But, also generally, a party claiming the right to use another’s land has the

burden to prove that right. See, e.g. Brooks v. Jones, 578 S.W.2d 669, 673 (Tex. 1979)

(prescriptive easement); Duff v. Matthews, 311 S.W.2d 637, 640 (Tex. 1958) (necessity);


        We, the undersigned landowners, hereby dedicate the road leading from the R. R. Shoaf
        residence to FM #1783 for public use. This dedicated road is to begin at the R. R. Shoaf
        residence on the A. Wells survey and extends in a northerly direction of approximately ¾
        mile to said FM Road #1783 right of way.

        We further realize that in dedicating this road for public use and upon it being accepted
        by the Commissioners’ Court of Coryell County, Texas, and maintained with county
        machinery, we will be estopped to deny this dedication.

After the signatures of R. R. Shoaf, Mrs. Dennis Warden, Mrs. Kitty Smith, and John Shoaf, Sr. were
notarized, the minute entry notes the following action:

        On this the 14th day of May, 1962, came on to be considered the above dedication of R. R.
        Shoaf, Mrs. Dennis Warden, Mrs. Kitty Smith, and John Shoaf, Sr., and after due
        consideration by the Commissioners’ Court and upon motion made and duly seconded,
        the Court voted to accept said dedication and enter same in the minute of the
        Commissioners’ Court.

We express no opinion on the validity of this minute entry to establish a public dedication of the
right of way.

Coryell County v. Harrell                                                                            Page 10
City of Mission v. Popplewell, 294 S.W. 2d 712, 717 (Tex. 1956) (dedication); County of Real

v. Hafley, 873 S.W.2d 725, 728 (Tex. App.—San Antonio 1994, writ denied) (implied

dedication). Thus, it is normally the plaintiff who must introduce evidence of each

element of a claim. If the plaintiff fails to prove each element by a preponderance of the

evidence, the plaintiff loses.

       Chapter 258 was enacted to help counties establish and clarify a public interest in

roads in which the counties’ claims existed before the enactment of Chapter 281 because

as time goes on, counties lose the ability to provide firsthand knowledge of a road’s

origin. See Bastrop County v. Samples, 286 S.W.3d 102, 108 n. 5 (Tex. App.—Austin 2009,

no pet.).    In some of those types of cases, such as in implied dedications and

prescriptive easements, continuous maintenance has been part of the evidence. See, e.g.

Lindner v. Hill, 691 S.W.2d 590, 592 (Tex. 1985) (implied dedication); Schultz v. Shatto, 237

S.W.2d 609, 612 (Tex. 1951) (prescriptive easement). Further, because of the passage of

time, the only way a county could claim a public interest in a road might be by the

county’s continuous maintenance of the road. Thus, when a county places a road on a

county road map under Chapter 258 and the only way it can claim the public interest in

that road is by continuous maintenance, it makes sense, then, that a county would have

the burden to prove the one thing it could still prove, that is, continuous maintenance

because that type of evidence is primarily within a county’s control. A county has the

motive to establish its claim and has the greatest likelihood of access to the witnesses


Coryell County v. Harrell                                                             Page 11
and documents which may exist to verify its claim of public interest in a road that

depends upon continuous maintenance by the county. Understanding that a county is

asserting a particular type of claim to a road by continuous maintenance under section

258.002(a)(2), the Legislature simply clarified for this one type of claim, when contested

under section 258.004(a), that the burden of proof is on the county. TEX. TRANSP. CODE

ANN. § 258.004(b) (West Supp. 2011).

       For all other claims to a public interest in a road under section 258.002, case

authority, the ordinary rules of pleading, procedure and proof, and the nature of the

interest that is being asserted provide the manner in which these contests will be

decided. Thus, to the extent that the County’s claim is a public right by dedication, the

Harrells must defeat that claim by establishing, for example, a title superior to the claim

of express dedication or a defective dedication. But to the extent the County claims as

an alternative basis for the public interest in the road that it was continuously

maintained by the County, the burden will be on the County.

       Legislative History

       The County further contends that the legislative history of Chapter 258 supports

its conclusion that a contest may be pursued only if a public interest in a road is claimed

by continuous maintenance. We again disagree with the County’s contention.

        In our reading of the bill analysis attached to the Amicus brief in this case, we

note that there was no limitation in the landowner’s ability to contest the inclusion of a


Coryell County v. Harrell                                                           Page 12
road on a county road map. In the “Digest” portion of the House bill analysis, the

paragraph describing the rights of a person asserting a private right, title, or interest in a

road on a county road map ends with the sentence, “A landowner also could contest

inclusion of a road on the county road map by filing a suit in district court within two

years of adoption of the map.” HOUSE RESEARCH ORGANIZATION, BILL ANALYSIS, TEX.

H.B. 1117, 78th Leg., R.S. (2003). Further, in the portion of the House bill analysis that

includes what supporters said about the bill, it was noted that the bill would allow a

fair but final determination of which county roads would be considered public roads;

and if a landowner was dissatisfied with a review of his protest, the landowner “would

have legal redress through the courts.” Id. The Senate bill analysis did not discuss the

contest provision. See SENATE RESEARCH ORGANIZATION, BILL ANALYSIS, TEX. H.B. 1117,

78th Leg., R.S. (2003). Thus, we do not believe the bill analysis supports the County’s

conclusion that a contest under Chapter 258 is limited to a road continuously

maintained by the County.

       We note that the Amicus fears that if the County’s motion to dismiss is not

granted, all landowners who have land adjacent to a county road in counties with a

population under 50,000 would be authorized to file lawsuits claiming an interest in

every road included on a county road map drawn pursuant to Chapter 258. This is

what the statute authorizes. As a court, we cannot change that. The Amicus fears a

flood of litigation. But its fears are unfounded. First, this is only the second appeal that


Coryell County v. Harrell                                                              Page 13
we have found from this chapter since the statute was enacted in 2003. Second, the

statute applies only to a county that “initiates or completes compliance with the

provisions” of Chapter 258 before September 1, 2011. See TEX. TRANSP. CODE ANN. §

258.007 (West Supp. 2011). The time to propose a county map under Chapter 258 has

now closed. While there may be some cases working their way through the judicial

system that are not yet reported, we are not aware of any; and given the prior appellate

history of this Chapter, we doubt that much new litigation will be generated.

       Jury of View

       Although not argued by the County, the Russells, or the Amicus, and because

jurisdiction is something that we must determine de novo, we acknowledge that the

discussion of what the jury of view considers in section 258.002(b) could lead to an

argument that the waiver of immunity is limited.           See id. § 258.002(b) (“The

commissioners court shall appoint a jury of view…to determine…after a hearing and an

examination of the county’s road maintenance records and other information, the

validity of the county’s claims of the existence of a public interest in the road.”

However, we believe the language “and other information” would include information

other than maintenance records such as evidence of a dedication. Thus, this language

does not limit the waiver of immunity expressed by Chapter 258.          As previously

discussed, the County appointed a jury of view to evaluate the Harrells’ claim. There is

nothing in the record before us to indicate what evidence, if any, the jury of view


Coryell County v. Harrell                                                        Page 14
considered. Regardless of whether the purported dedication was considered or not,

this provision does not foreclose a contest by the Harrells to the County’s claim of a

public interest in CR 65.

                                      CONCLUSION

       The County’s sole issue is overruled, and we affirm the trial court’s order.




                                         TOM GRAY
                                         Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Order Affirmed
Opinion delivered and filed December 28, 2011
[CV06]




Coryell County v. Harrell                                                             Page 15
