                          The Attorney             General of Texas
“H MAlTOX                                     Decenlher 21, 1984
                                                             I
  torney General


: proms cowl Bulkmg      Eonorablc Mike Driscoll                         Opinion    Ho.      JM-262
   0.Box12s48            Rerrir County Attonwy
4uetln. lx. 78711.2s4e   1001 Prceton, Suite WI                          Re: klaximum bond which a county
jl2/47.MSO1                                                              may require      of subdividers   for
                         Rouaton. Texas    7700:!
   1.x 010@7+1a7
   IkopiU   s12147saw
                                                                         the   construction     and/or   main-
                                                                         retieace of roadr

                         Dear Hr. Driecoll:

                               You have    requested   an opinion     from   this   office     on the   following
                         qu&tioa:

                                        What 1; the maxicnm emouht of bond that . . .
                                     [Harris] Cwnty may require  of subdividere   for the
                                     proper construction and/or mainteoance   of roads?

                         In the brief   preparr,d by your office,      you inform us that your inquiry
                         arises  from an apparent      conflict    among four     statutes -- erticles
                         6626a. 6626a.l.    670:!-1, V.T.C.S..    and the Rarria County Road Law, a
                         Specie1 Law ,of the Zbirty-third       Legislature.     Acta 1913, 33rd Leg.,
P-4 Bm4dwy. Bull4 312
  44lcock.TX. 7mc14479
                         Local 6 Special Laws, ch. 17, et 64.
,An47.5230
                                Articlea     6626a and 6626a.l.        two of the statutes    forming the basis
                         of your inquiry,        were! repealed      in whole by the legisletura     during the
  m N. Tsnlh. SW9 B
  CAllen. lx 7Mol.lMs
                         special     sesrioa     of 1984.       Act6    1984. 68th Leg.,     2nd C.S.,     ch. 8,
512m24!547               )2(b), et 145. The language of these articles,                 however, was reenacted
                         as aectione      2.401 and. 2.402       of the revised   County Road and Bridge Act
                         (article      6702-1).      Acts 1984.                at 73-78.     Consequently,     the
                         conflict     betveen‘artlcles         6626e. T 6 26e.l.  end the forncr version        of
                         sectloo    2.401 of tL! original           County Road sod Bridge Act is oo longer
                         a matter of concern.           The issue that does r-in         for our consideration
                         is whether        revised     article     6702-l   or the iierris     County Road Lav
                         controls     in this incltancs.

                                The Harris      County    Road Law ves enacted         by the Thirty-third
                         Legislature     pursuan(: to itr authority        granted by article  VIII, section
                         9 of the Texa.r Conrtltutiw         to pass local laws for the maintenance         of
                         public reeds and hi:ghwaya.         Special     law eoaeted uader this constitu-
                         tional    provieion     supersede   conflicting       general laws.  at least   with
                         respect    tb the county designated        by the special     law.   Bill County v.




                                                          p. 1165
Honorable    Hike Driscoll       - Page 2   (JM-262)




Bryant 6 iiuffman. 16 S.U.2d        513 (Tu.    1929).      Section    33 of the Aerris
County Road Lav achowledger          thir rule:

                 The provisions   of ,this Act are, and shall      be,
             held and construed    ta be cumulative    of all Ceneral
             Laws of thia State, tm the subjecta        treated  of in
             this Act, when not in conflict        therewith.   but in
             case of such conflict    this Act &all     control  as to
             Rarris County.

In our opinion.         however. where there is no conflict    between e general
and a special         lav,  or where the special    law la rilent   on a rubject
treated    explicitly      by the gene:ral law.  the general   la? should not be
displaced.

       Purthemore , special       laws enacted under article            VIII. section      9
of the Texas Constitution             grent    the comissionera         court    not only
control    over the maintenance        c’f cxiatian     uublic   roads. but also over
the laying     out and constructim          of new &lic        roada by the county as
vell.    Dallas County v. Plownq            91 S.W.    221. 222 (Tu.      1906).    Public
roads     are    those     roedr    cst,ablished       by    the    authority     of    the
comissioners       court.   by prascrl~ption,       or dy dedication      and-acceptance
by the county.       Attorney Ceaerrk:L Opinion Jl4-200 (1984) and casee cited
therein.      These principles.      too. arc incorporated         into relevant     parts
of the Harris County Road Law:

                 Sec.    1. That. stibject to the provisions          of
             this Act. the Comis~~ioners Court of Hart18 County
             shall    have cootrol   of all roads, bridges,     draiae.
             ditches,     culverts  end all vorkr and constructions
             incident     to itr road,, bridges,   and drainage,    that
             have been heretofore!      laid out or conetructed,       or
             that mey hereafter      1~: laid  out or constructed     by
             Harris County, or undm its direction.

                 Sec. 2. Subject t.o the        provisions     of this Act,
             the Comissioners     Cclurt       of Harris      County shall
             have the power aad right          to adopt such rules and
             regulations   for:  (I,) the       proper construction     aad
             maintenance  of ita wads,          bridges    and draioage  as
             it  may see proper.  . . .

                 Sec.    3. Whenever any ~1~s.        reguletioae     or
             course     of   procedure    la  connection     with    the
             construction    or maintenance  of the roads, bridges,
             and drain.    of Uerria County may have been adopted,
             they shell    thereupon be reduced to writing.       . . .

                 .   .   .   .




                                       ‘>. 1166
Ronorable   Hike Driscoll      - Pege 3       (JX-262)




                Sec. 16. The Comissioaers           Court shall     have
            control     of all   mutters     in connection    with    the
            construction      and maintenance      of county      roads,
            bridges    and drainage,     except such aa it may from
            time    to time, by reeolutiou,          delegete   to the
            precinct     road supervisor,       and than under such
            rules    and regulnt~lcma as it uay prescribe.            and
            subject    to their rwall     at its pleasure.

                . . . .

                Sec.     31-C.     In acquiring           rights-of-way         for
            roads in Harrio County,              the Comissionerc            Court
            shall    deterxiue       t.b.e width      of the rlght-of-vay
            required,     and lstal~:lish the lines and eligmeat                 of
            the road.        All of the field            aoteo of roads so
            established      and deteruined        shall be filed with the
            Combsloners Cowt and be recorded on the Road
            Log of Rarris County, end no expenditures                   shall be
            made by the Commissioners             Court upoa any road not
            carried    011 the Road Log.          The Comtissioners          Court
            may edopt a system: for carrying               roads oa the Road
            Log vith the required vidth of the right-of-vay                       to
            be established        by the Court.           Provided,     however,
            no road shell          bc carried         on the      Road Log or
            ualntained      by the county oa a right-of-vay                   leas
            than twenty (20) feet nor more than 600 feet                          in
            vidth    unless      the right-of-uey          was laid       out or
            estebliehed        on or after          Jenuary      1, 1963.        No
            subdivision       or p:.at of lands            la Anrris       County
            outside    of incorpcweted         cities     shall be flied        for
            record     by the Cmnty           Clerk      of Rarrio        County,
            Texan, until        such plat      or subdivirioa         bearr the
            sigoature      of the County Engineer               to the effect
            that the roads; em indicated              on the plat. have uet
            the requirements           of the syatau          adopted     by the
            Comisaioeers        Cowt pursuant to this Section ae to
            the width of the :r:Lght-of-vay             and have a base and
            surface    of at leac;t twenty (20) feet in width with
            the     base      and     surface       meeting       the     ainiuuu
            requirements       preswibed      by the Coumiasioners           Court
            by order       duly altered         in the minutes           of said
            court,    and that all requireuants              of Aarrir County
            aad the Rarris Comty Flood Control District                      as to
            drainage have been complied vith.

       The Harris  County Road Lav does not require      real  estate  sub-
dividers   to post a bond for either    the construction or mintenance   of
roada in eubdivieions    in Ha~:ris County.  Section 9 of the law formerly




                                          p. 1167
tlonorable    Mike Driscoll       - Page o      (JR-262)




llloved    the comaiesionera      court of Rarris County to require           a bond of
contractors       for   the construction        of roads     for the county;         this
provision,     however, was repealed        la 1979.     Ac ts 1979, 66th Leg.,       ch.
422. a t915.        In any event,    section    9 wee and remains applicable        only
to roada built with county fur.ds -              it does aot affect      the COaatNC-
tion and uintenence         of roads in subdivisioaa          in Barris     County that
are not built        with county fuzis.         Moreover, we are uneware of any
rules    or regulations      adopted    by the county       c~issioners       requiring
bonds frou developers       of subdiviaiona        for such matters.       Accordingly,
we uust      resort    to the general        laws of the atate         to answer your
question.

       Article      6702-l.     the County Road and Bridge Act.-wes                 revised    and
reenacted      during the special          legislative     session     bf 1984.      Acts 1984.
w,        at 44.       Sections    2,401(tl:1(7)     and 2.402(d)(7)      of the revised       act
authorize      the coamiaeionera          caurt to require       bonds for the constNc-
tion of roads in subdivisions.                   The com&rsionero          court nay require
the owner(a) of the land to bmc divided                   or subdivided        to post a bond
“for    the proper         construction       of the roads         and streets        affected.”
conditioned       upoa the construction              of such roada in accordance              with
specifications         established      by the coamiaaioaers          court.     Id. at 75. 78
(to     be     codlf led       as   V.T.C,,Ii.      srt.    6702-l.      H2.40r(d) (7)          and
2,402(d)(7),        respectively).         The bond under either           section     “shall    be
in an amount as uay be determined                    by the commissioners         court not to
exceed      the     estimated      cost     of constructing         . . . [the]        roads     or
atreete.”       Id.

       Section 2.401 appliee       to all counties        in this state   except those
that elect     to operate under swtion           2.402.     Section 2.402 applies      to
counties    of uore than 2.2 milLion          inhabitants     which elect     to operate
under this     section   and to cou:zties       contiguous    with a county of more
then 2.2 uillion       population      that also elect        to operate     under this
provision.      We are unavere of uhether the Rarris County Coamissioners
Court    her elected    to operate      under section       2.402;    the uaxinum boad
acceptable    under the County Road and Bridge Act, bowever. reuaias                  the
Sm.       Therefore,   in enaver to your question            we conclude    that Rarris
County nay require         subdividers      to rubuit       a bond for       the proper
construction     of roads in subdlvi8ion6           in Barrio County in an amouat
not to exceed the estiuated          ewt     of construction       for such roads and
streeta.     We shall nov address        the final issue raised by your inquiry.

      In the brief       prepared     by your otfice.       you argue      that   the
c&ssionera      court uey also require       subdividers    to post a uaintenaace
bond as a condition     of plat aplwoval or as e prareqaiaite          to recording
on the county road log.         You contend that section        31-C of the Rarris
County Road Law (quoted abovo:~. when read in conjunction                  with the
language   of revised    sections    ,I.401 and 2.402 of the County Road and
Bridge Act, iuplicitly       luthor:laca   the county to require        uaintanance
bonda in addition      to construction      bonds.     Alternatively.     you argue




                                            p. 1168                                                   L
Ilonorablc    Hike Drircoll        - Paga 5        (J%262)




that   rime   acceptance   of rosda on the road log is equivalent        to
acceptance   of such roads for maintenance   by the county, a maintenance
bond 16 l reasonable    condlticm  for such acceptance.  We disagras  with
both contentions.

        First,      we note that tt,c County Road and Bridge Act make6 no
provision        for the acceptance         l>f bonds ensuring           proper maintenance           of
roada in suhdivi6ions.               And, in our opinion,               such a bond cannot be
implied       from the language o:[ the act;                had the legislature               intended
maintenance          bonds     to be mquired            of subdividers.            it    would have
expressly        required      such bond a.       Second, we believe            that maintenance
bonds contravene            the policy      underlying       county maintenance             of roads.
By requiring          subdividers     to post bonds for the proper maintenance                        of
roads,      the county would ef fectlvely                 make theas        subdividers          under-
writers      of work for which the county ia ultimately                        responsible.          The
county may not, in our 0pin:ton. employ this device to assure                                    proper
maintenance;          there are. hovever,          alternatives        that Aarria County may
lawfully        utilize.        See, e.fk-, V.T.C.S.            arts.     6702-l.      53.102(e)(2)
(bond required             of lov bidders           on improvement           contracts);          68121
(contracts         for improvamenta         ,of highways        in counties         vith     over two
million      inhabitants).         Finally,    ve do not agree that maintenance bonds
may be exacted as prerequiaitsa                  to recording         on the road log or as a
prerequisite           to plat     approv.nl.        In your brief            you contend           that
recording         on the road log is equivalent                    to acceptance          for county
maintenance.            The mare filjng         of a subdivision             plst.      however,      is
imufficient             to    constitute:      acceptance         of     a    road       for     county
maintenance.           Attorney    Gener,k.l Opinion m-200              (1984).       Similarly.      we
believe        that mere recordation            on the road log la losufficient                        to
justify      a maintenance        bond, :?artlcularly         since the county has at this
stage undertaken no obligatitc.               to maintain        the roads in question.



                  The liarrla     Comty      Comiaaionera      Court   may
               require    a bond from subdividers         for the proper
               construction     of road6 in subdivisions          in that
               county in an amount not to exceed the estimated
               coat of constructing       such roads.      The county may
               not require    subdividers     to post maintenance     bond
               for such roada.




                                                          JIM      HATTOX
                                                          Attorney General of Texas




                                              p. 1169
Honorable   Mike Driacoll     - P#~g;e6   (JM-262)




TC+lCBEgN
First Aaaiatant    AttorneyGenc!ral

DAVID R. RICHAFDS
Executive Aaaiatant Attorney        General

RICR GILPIN
Chairman.    Opinion    Committee

Prepared    by Rick Cilpin
Amiatent     Attorney   General

APPROVED:
OPINIONCOMMITTEE

Rick  Gilpin.  Chalrman
Colin  Carl
Susan Garrison
Tooy Guillory
Jim Moellinger
Jenoifer   Riggs
Nancy Sutton




                                       p. 1170
