Honorable C. J. Eden             Opinion No. WW-1209
County Attorney
Stephens County                  Re: Interpretation of Article
Breckenridge, Texas                  6711, Vernon's civil
                                     Statutes.
Dear Mr. Eden:
         You have requested that this office render an opinion
giving an interpretation of Article 6711, Vernon's Civil Stat-
utes, and more specifically sub paragraph 1 of this statute.
Your request reads in part as follows:
                "I am interested in whether or not there
        has been any court action testing the constitu-
        tionality of the statute, and furthermore, as to
        the position of the Commissioners Court in respect
        to their obligation to comply with a formal re-
        quest made by an Individual property owner. If
        you can shed any light on either of these two
        questions, it will be greatly appreciated."
         Article 6711, Vernon's Civil Statutes, to which you
refer, reads in part as follows:
                "Any lines between different persons or
        owners of lands, any section line, or any practic-
        able route, practicable route as used herein,
        shall mean a route which will not unduly incon-
        venience the owners or persons occupying the land
        through which such route shall be declared, that
        the Commissioners Court may agree on In order to
        avoid hills, mountains, or streams through any
        and all enclosures, shall be declared a public
        highway on the following conditions:
                "1. One or more freeholders, or owners
        of lands, persons, firms, or corporations, into
        whose lands there is now no public road or public
        means of access, who desires an access road con-
        necting his said land with the county public road
        system, may make a sworn application to the Com-
Honorable C. J. Eden, Page 2   (ww-1209)


        missioners Court for an order establishing
        such road, designating the lines sought to be
        opened, and the names and residences of the
        person or persons affected by such proposed
        access road, and stating the facts which show
        a necessity therefor.
                 II
                  . . .
                “3. At a regular term of the court,
        after due service of such notice, the court
        may hear evidence as to the truth of such
        applicatjon. and if It appears that the said
        aoolicants have no means of access to their
        lands and premises, it may issue an order
        declaring the lines designated in the applica-
        tion, . , , to be a public highway, . . .'I
        (Emphasis supplied)
         A clear statement of the purpose and Intent of the
Legislature In this entire matter can be found in Section 2
of the 1953 amendatory act. Acts, 1953, 53rd Leg., P. 1054,
ch. 438, sec. 3, which provides:
                "It is the purpose of this Act to make
        accessible to the public, properties belonging
        to such private individuals as have been de-
        prived, or may be deprived of any means of ac-
        cess to their said properties from the county
        public road system, and which properties are not
        now accessible to the general public, by establish-
        ing such roads over the most economical and con-
        venient route to be determined as hereinabove set
        out. "
         In regard to the portion of your Inquiry regarding
the constitutionalitv of this statute. NOU are referred to the
case of Phillips v. Stockton, 270 S.W:2d 266 (Civ.App. 1954,
reversed on other grounds, 275 S.W.2d 464) in which the court
pointed out that the constitutionality of this statute author-
izing the creation of public highways across another's land
to give landowners living within enclosures access to highways,
rests upon the obligation of the sovereignty to afford to each
member of the community a reasonable means of enjoying the
privileges and discharging the duties of a citizen. We have
found no other cases in which the constitutionality of this
statute was raised or discussed.
Honorable C. J. Eden, page 3   (WW-1209)


         Before proceeding further in this Inquiry, we should
like to direct your attention specifically to the statement of
purpose set out in Section 2 of the 1953 amendatory act, supra.
Therein the Legislature spells out its intention (i.e. to make
that property belonging to private individuals who are without
access to the county publfc road system accessible to the pub-
lic through the opening of a public road over the most conven-
ient and economical route.) Any action of the Commissioners
Court relative to this matter nust necessarily be taken with a
view to this overall purpose. It must give effect to the purpose
and intent of the Legislature. Morris v. Calvert, 329 S.W.2d
117 (Civ.App. 1959, error ref. n.r.e.)
         Further, In regard to your inquiry as to the position
of the Commissioners Court in respect to Its obligation to
comply with a formal request made by an individual property
owner, we held in Attorney General's Opinion ~~-872 (1960) that
insofar as the order which the Court can issue under this stat-
ute, the issuance of such was within the discretion of the
Commissioners Court. This opinion reads In part as follows:
                 "It would be inaccurate to describe the
         statute, in its entirety, as being either 'man-
         datory' or tdirectory.' The statute lists cer-
         tain procedures which must be followed, and
         directs some actions of the county commission-
         ers. However, the order which may be issued by
         the Commissioners Court after hearing the evi-
         dence is subject to the discretion of the Court."
         The Court, in the case of Phillips v. Naumann, 154 Tex.
153, 275 S.W.2d 464 (1955), directed its attention to this ques-
tion and held In part that in order for the Commissioners Court
to have the authority to order the opening of the public road
under the Article 'under review, the petition must allege "the
facts which show a necessity for such road', and that the facts
alleged must be established by the evidence, and that the Com-
missioners Court "deems the road of sufficient public lmpor-
tance."
         However, prior to 1953, the issuance of court orders
under this Article was specifically dependent in addition on
a finding of the Commissioners Court that said road was of
"sufficient public importance." Phillips v. Naumann, supra,
was decided on the basis of the wording of the Article prior to
1953. Relative to the issuance of court orders, the statute
was amended in 1953, Acts, 1953, 53rd Leg., p. 1054, ch. 438,
sec. 3, to omit the following: "if the Commissioners Court
Honorable C. J. Eden, page 4   (WW-1209)


deems said road of sufficient public importance", and In lieu
thereof, the Legislature Inserted provisions relating to the
hearing of evidence and to the Issuance of orders where land-
owners have no means of access to their lands. Thus, the
Commissioners Court is no longer required to deem the road
"of sufficient public Importance"; but only has to find that
a necessity for such road exists within the meaning of the
statute. To this extent, Phillips v. Naumann, supra, is still
a valid statement of the law.
         Thus, we are of the opinion that the obligation of
the Commissioners Court to comply with the formal request
made by an individual property owner is discretionary, and
should be in accord with the purpose of the act as set out
above. However, the facts showing a necessity for such road
must not only be alleged, but must be established by the
evidence within the terms of the statute before an appropriate
order may be issued declaring the lines designated in the
application to be a public highway.
                       SUMMARY
         The obligation of the Commissioners Court to
         comply with a formal request of an individual
         property owner under Article 6711, Vernon's
         Civil Statutes, Is discretionary and dependent
         on whether the facts showing a necessity for
         such a road are alleged and established by the
         evidence within the terms of the statute.
                                 Yours very truly,
                                 WILL WILSON



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APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Marvin Thomas
Robert Lewis
Morgan Nesbitt
Marvin Sentelle
REVIEWED FOR THE ATTORNEY GENERAL
BY: Houghton Brownlee, Jr.
