Ms. Elizabeth C. Jandt                Opln.Ion No. M-339
County Attorney
                                      Re:   Whether a county can sell
                                            property acquired for county
                                            road purposes but never used
                                            without the advertisement
                                            and sale at public auction
                                            as directed by Article 1577,
Dear Ms. Jandt:                             V.C.S.

In your recent request for opinion, you set forth the following
facts:
        "In about 1963 the County agreed to build a county
        road. The road was to be an extension of a county
        road already in existence. There were three pro-
        perty owners involved in the acquiring of the
        necessary right-of-way and each agreed to give the
        property to the County. However, only property
        owner number two actually signed a deed conveying
        to the County a 40 foot right-ofiway along the
        side of his tract of land. Property owners number
        one and three never gave a deed to their part of
        the right of way.
        "The County has now decided not to build said county
        road and would like to sell said 40 foot strip back
        to the original grantee. Said 40 foot strip 1s not
        connected to the existing county road; the tract
        owned by property owner number one Is between the
        existing county road and the 40 foot strip in ques-
        tion. Said strip does not have any road improvements
        placed on It by the County and it has never been
        used by the county or anyone else for road purposes.
        However, the County of Guadalupe did acquire said
        strip for the purpose of extending an existing
        county road."

 In connection with these facts, you pose this question:
         "Can the County of Guadalupe appoint a Special
         Commissioner by order entered in the minutes of
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Ms. Elizabeth C. Jandt, Page 2 (M-339)


        the Commlssloners Court and direct that he sell
        said land directly to the original grantee at
        private sale or must the Special Commlssloner
        advertise said40 foot strip and sell it at
        public auction. Does this 40 foot strip con'-
        stltute abandoned right-of-way property as
        mentioned In Article 1577, V.A.C.S., having
        never been used by the County for road purposes.n

The property to which you refer was acquired to build a county
road. It was conveyed to the county for this purpose and the lnten-
tlon of the Commlssloners was to establish a county road thereon.
It, therefore, constitutes county "right-of-way property". Abandon-
ment Is primarily a question of Intent. To constitute "abandoned
right-of-way property" for the purposes of Article 1577, Vernon's
Civil Statutes, the better practice would be for the Commlssloners
Court to adopt a resolution duly entered on the minutes of the Com-
missioners Court declaring such right-of-way property Is abandoned.
At the 60th Session ox'Lhe Texas Legislature, two amendments to
Article 1577 were enacted. These were Amendment to Article 1577
by Acts 1967, 60th Leg., p. 114, Ch. 48, Sec. 1 and Amendment to
Article 1577 by Acts 1967, 60th kg., p. 2071, Ch. 772, Sec. 1.
You will note that the two amendments contain only minor differences.
It  Is well established that when a session of the Legislature enacts
more than one amendment to a statute the two amendments will be
construed together and if at all possible, both statutes will be
given effect as one expression of the legislative will. Southern
Pacific v. Sorey 104 Tex. 476, 140 S.W. 334 (1911); Cole v. State,
106 Tex. 472, 176 S.W. 1036 (1914); Cain v. State, 20 Tex. 355,
 (1857); 53 Tex. Jur. 2nd 155, STATUTES, Sec. 105. The rule 1s
further to the effect that where portions of enactments are In
Irreconcilable conflict, those portions not In conflict are to be
given effect. As t6 the portions In conflict, the latest legislative
expression prevails. Whlttenburg v. Craven, 258 S.W. 52 (Tex.
 Comm. App., 1932).
 Those portions of the two amendments to Article 1577 applicable
 to the question you pose are identical. In essence such amendments
 provide for the sale of county owned land and establish priorities
 as to certain property. After providing for the sale of county
 land by public auction after the advertisement thereof, both amend-
 ments contain the following language:
         "Provided, however, that where abandoned rlght-
         of-way property 1s no longer needed for highway
         or road purposes and the county decides to sell
         said right-of-way property, It shall be sold with
         the following priorities: (1) to abutting or ad-
         joining landowners; (2) to the original grantors,
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Ms.   Elizabeth C. Jandt, Page 3 (M-339)



          his heirs or assigns of the original tract
          from whence said right-of-way was conveyed;   or
          (3) at public auction as provided above;"

Article 1577, as amended, establishes definite priorities that
are to be followed In the sale by a county of abandoned rlght-of-
way property. Such property should be first offered at private
sale to abutting or adjoining landowners. Should no sale be
effected to adjoining and abutting owners, such property should
then be offered to the original grantor, his heirs or assigns of
the original tract from whence said right-of-way was conveyed. If
the property 1s not sold to any of the persons having the first two
priorities, the property should be advertised and sold at public
auction as provided by Article 1577, as amended.
                           SUMMARY
          Real property acquired by a county for the purpose
          of constructing a road constitutes right-of-way
          property whether a road 1s ever constructed thereon
          or not. Whether such property has been abandoned
          1s a question of Intent. To constitute "abandoned
          right-of-way property" for the purposes of Article
          1577,  V.C.S., the better practice would be for the
          Commlssloners Court to pass a resolution entered on
          the court's minutes declaring such property to be
          abandoned. The two amendments to Article 1577 en-
          acted by the 60th Legislature contain identical
          language relative to the manner In which county real
          property 1s to be conveyed and prlorltles that are
          to be followed regarding certain property, and there-
          fore such language is effective. Where property to
          be sold by a county 1s abandoned right-of-way property,
          the priorities established In Article 1577 must be
           followed and such property should first be offered at
          private sale to the adjoining or abutting owners, and
           secondly to the grantor, his heirs or assigns of the
           tract of land from whence such right-of-way property
          was orlglnally conveyed. If such property 1s not
           sold at private sale to those persons having the
           first two priorities, such property should be adver-
           tised and sold at public auction as provided by
           Article 1577, as amended.
                                     /7
                                   y+.$ truly yours,
‘.




                     Ms.   Elizabeth C. Jandt, Page 4 (M-339)



                     Prepared by Louis 0. Neumann
                     Assistant Attorney General

                     APPROVED:                                  I




                     OPINION COMMITTEE

                     Kerns Taylor, Chairman
                     George Kelton, Vice-Chairman
                     Scott Garrison
                     Rex H. White, Jr.
                     Bob Iattlmore
                     Malcolm Smith

                     W. V. Geppert
                     Staff Legal Assistant
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