                     TEEATI-ORNEXGENJCESAL
                                       OF     -rExAs

  aoarr    L BILL                   Awsl7N.   -        78711
A--

                                        November     30, 1973


          The Honorable Jamer P. Allieon                        Opinion No. H- 166
          County Attorney
          Delta County                                          Re:   The necesrity of a
          Cooper, Texan                                               unanimour vote of the
                                                                      Commieeionerr’ Court
          Dear Mr.   Allieon:   ’                                     to discontinue a road

               You have advised that pursuant to the requirementr of Article 6705,
          Vernon’8 Texas Civil Statutea, a petition has been prerented to the
          Commierionera  Court requeeting the Court to discontinue a public road.
          You aak:

                              “Can the Commiesioner’e   Court grant this petition
                       and diecontinue a public road by an affirmative vote of 3
                       to I or doer the requirement of the unanimous consent of
                       all Comrnieaioner’a elected stated in Article 6703 V.A.T.S.
                       apply to thio petition? ”

             Article 6705 requires a petition and notice for action~a (1) to build a
     new road, (2) to discontinue an original road, and (3) to change or alter the
     course of a public road. Article 6703 providea:

                              “The commireionerr    court ehall order the laying out
                       and opening of public roadr when necersary.     and dircontinue
                       or alter any road whenever it ehall be deemed expedient. No
                       public roads ehall be altered or changed except to shorten
                       the distance from end to end, unlerr the court upon a full
                       inveetieation of the proposed change finde that the public
                       intereet will be better nerved by making the change: and said
                       change ohall be by unanimous coneent of all the commiasionerr
                       elected.   No part of a public road shall be diecontinued until a
                       new road ie firrt built connecting the part0 not discontinued;




                                                  p. 764
The Honorable James P. Allison.      page 2 (H-166)




              and no entire firat or second claer road ahall be die-
              continued except upon vacation or non-use for a period
              of three yearr.    Said court dhall l eaume and have con-
              trol of the streets and alleya in all cities and incorporated
              towns in Texas which have no defacto, [sic] municipal
              government in the active discharge of their official duties. ”

      We     believe that Article 6703. like Article 6705, contemplates three
separate    and distinct actions --building, altering and discontinuing roads.
Although    the concept of discontinuance arguably could be included in the
scope of    change or alteration, the manner in which the atatute is constructed
euggee.ta   that the two concept8 are independent.

        Therefore, it ia our opinion that a commissionera  court may grant a
petition to discontinue a public road on a lees than unanimous vote provided
that: (I) A new road has been built connecting the parts not discontinued;
(2) If a firat or second class road, there has been vacation or non-use for a
period of three years; and (3) No private rights which might exist above and
beyond the general public right of paeaage will be impaired.     Meyer v. Gal-
veston H. & S.A. Ry. Co., 50 S. W. td 268 (Tex. Comm. 1932, holding app.);
Compton v. Thacker,      474 S. W. 2d 570 (Tex. Civ.App., Dallacl, 1971, err. ref.
n. r. e.); Attorney General Opinion No. V-975 (1949).

                                   SUMMARY

                     A unanimous vote of the commissioners      court
               is not required to dincontinue a public road provided
               that a new road has been built connecting the partr
               not discontinued; there has been a vacation or non-use
               for a period of three yearn, if the road ir a firat or
               second claes road; and no private rights, above those
               of the general public, will be impaired.




                                                      General of Texas




                                    p.   765
.




    The Honorable James P. Alliron,   Age   3 m-166)




    APPftQmD:




    Opinion Committee




                                      p. 766
