 ’ OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS

   JOHN     CORNYN




                                                May 15,2002



The Honorable Frank Madla                                        Opinion No. JC-0503
Chair, Intergovernmental  Relations Comrnittee
Texas State Senate                                               Re: Whether a county may maintain a
P.O. Box 12068                                                   road that has not been officially establish-
Austin, Texas 787 1 l-2068                                       ed as a public road but which has been
                                                                 accessible to and regularly used by the
                                                                 public (RQ-0469-JC)


Dear Senator Madla:

          You ask whether a county may maintain a road that has not been officially established as a
public road but which has been accessible to and regularly used by the public.’ You also ask
whether the commissioners     court or individual commissioners    determine which roads will be
maintained by the county. As explained below, a county may expend public funds to construct,
improve, or maintain only a “public road”; a county may not maintain a private road. A road may
become a public road either pursuant to the procedures set forth in the county road and eminent
domain laws, by dedication, or by prescriptive easement. The commissioners court establishes
public roads under the various statutory provisions. Before maintaining a road that has not been
officially established as a public road, a commissioners court must either obtain a judicial order
declaring the road a public road or, alternatively, make its own determination that the road has
become a public road by dedication or by prescriptive easement. In a county with a population of
50,000 or less, chapter 281 of the Transportation Code significantly limits the authority of the
commissioners court to make such a determination.

         Before addressing your specific questions, we review the applicable law, which is found both
in statutes and in judicial opinions applying the common law to determine whether roads that have
not been officially established as public roads have acquired that status. We begin with the road
laws, which provide the general framework for county road administration.

        Chapter 251 of the Transportation    Code, the general county road law, authorizes a
commissioners court to construct and maintain “public roads.” See, e.g., TEX. TRANSP.CODE ANN.
85 25 1.003 (Vernon 1999) (construction and maintenance of public roads), .006 (obtaining material



         ‘Letter from Honorable Frank Madla, Chair, Intergovernmental Relations Committee, Texas State Senate, to
Honorable John Comyn, Texas Attorney General (Nov. 26, 2001) (on file with Opinion Committee) [hereinafter
Request Letter].
The Honorable Frank Madla            - Page 2           (JC-0503)




for public roads). Although under chapter 251 county commissioners are the supervisors of the
public roads and a commissioner has certain duties with regard to the roads in his or her precinct,
see id. 59 25 1.004, .005, ultimate authority with respect to roads is vested in the commissioners
court. See Guerra v. Rodriguez, 239 S.W.2d 915,920 (Tex. Civ. App.-San Antonio 1951, no writ)
(supervision of public roads by commissioner acting as road supervisor “is subject to the general
supervision of the Commissioners’ Court”) (construing statutory predecessor to Transportation
Code, section 25 1.004).

         Chapter 252, which provides alternate systems for county road administration, also speaks
in terms of county construction and maintenance of “public roads.” Furthermore, under these
alternate systems, the commissioners court retains ultimate control over which roads are maintained
by the county. See, e.g., TEX. TRANSP. CODE ANN. $9 252.005(a), .006 (Vernon 1999) (in ex officio
road commissioner system “commissioners court shall adopt a system for laying out, working on,
draining, and repairing the public roads” which is then directed by ex officio road commissioner),
~ww)        (in road commissioner system, road commissioner “under the direction of the commis-
sioners court, [shall] spend the money entrusted to the road commissioner by the court . . . on the
public roads”), .205(a) (’m road superintendent system, road superintendent has general supervision
“over the public roads,” subject to orders of the commissioners court), .309(a) (in county road
department system, county road engineer “is responsible to the commissioners court for the efficient
and economical construction and maintenance of the county roads”).* Similarly, chapter 256 of the
Transportation Code limits use of money in a county road and bridge fund to “public roads” and
provides that money in the fund may be spent only by order of the commissioners court. See id.
5 256.001( a) (county road and bridge fund “may be used only for working public roads and building
bridges, except as otherwise provided by law”), (b) (moneys spent only by order of commissioners
court).

         A county may not maintain a private road, with one limited exception. Under article III,
section 52f of the Texas Constitution, a county with a population of five thousand or less is
permitted to construct and maintain private roads if it imposes a reasonable charge for the work. See
TEX. CONST. art. III, 5 52f; see also id. 63 5 1, 52 (limitations on use of public funds for private
purposes). But, as this office noted in Attorney General Opinion JC-0 172, “Aside from the narrow
authority granted by article III, section 52f. . . , counties are not constitutionally   or statutorily
authorized to construct or maintain private roads.” Tex. Att’y Gen. Op. No. JC-0172 (2000) at 2



            *See also TEX. REV. Crv. STAT. ANN. art. 6812b, 0 3 (Vernon 1960) (“The county engineer shall, under the
direction of the Commissioners      Court, and as soon as practicable, classify all public roads in such county, and such
classification when completed, and when approved by the court, shall become a part of the permanent records, of roads
and bridges, of said counties.“) (road law applicable to counties having a population of more than 198,000 inhabitants,
and less than 400,000 inhabitants with an incorporated city having a population in excess of 250,000); id. art. 68 12b- 1,
5 2(a) (Vernon Supp. 2002) (“The county engineer shall, under the direction of the commissioners court, and as soon
as practicable, classify all public roads in such county, and such classification when completed, and when approved by
the court, shall become a part of the permanent records of roads and bridges of said county.“) (road law providing for
appointment of a county engineer in any county having a population of not less than 280,000 nor more than 300,000).
The Honorable    Frank Madla - Page 3           (JC-0503)




(citing Exparte Conger, 357 S.W.2d 740 (Tex. 1962); Tex. Att’y Gen. Op. Nos. JC-0016 (1999) at
3, DM-13 (1991) at 3-4, JM-334 (1985) at 2, JM-200 (1984) at 2).

         Under section 25 1.002 of the Transportation Code, a public road is defined as follows: “A
public road or highway that has been laid out and established according to law and that has not been
discontinued is a public road.” TEX. TRANSP.CODEANN. 6 251.002 (Vernon 1999). But, as the
Texas Supreme Court has recognized, there are other ways in which a road may become a public
road:

                All roads which have been laid out and established by authority of the
                commissioners’ courts are public roads. . . . A road not originally
                established under the statute may become public by long-continued
                use and adoption as such by the county commissioners with the
                assent of the owner or by prescription.    A road may also become
                public, in the sense that the public have the right to use it, by
                dedication.

Worthington v. Wade, 17 S.W. 520,521 (1891).

         We briefly examine the ways in which a road may become a public road. First, various
statutes provide for the establishment of roads by a commissioners court. Subchapter B of chapter
25 1 of the Transportation Code generally authorizes a commissioners court to “order that public
roads be laid out, opened, discontinued, closed, abandoned, vacated, or altered,” TEX. TRANSP.CODE
ANN. 5 25 1.05 1(a)( 1) (Vernon 1999), and provides procedures by which a commissioners court may
establish and lay out a public road, see id. $0 25 1.052 (providing for new road or change in road
upon petition of property owners), .053 (providing for declaration of public road upon application
of certain property owners), .054 (requiring that new road ordered by commissioners court be laid
out by jury of view); see also id. ch. 281 (special rules for acquisition of public interest in private
roads in counties with population of 50,000 or fewer).

         Under chapter 253 of the Transportation Code, a road in a subdivision that the commissioners
court orders improved becomes a county road. See id. $5 253.001 -.Ol 1. That chapter requires the
commissioners court, among other things, to determine that improvement of the road is “necessary
for the public health, safety, or welfare of the residents of the county,” id. 5 253.003; to provide
notice of its proposal to improve the road and to assess all or part of the costs against the landowners
in the subdivision, id. 5 253.004; to hold a public hearing, id. 6 253.005; and to obtain approval of
a majority vote of the landowners in the subdivision, id. 80 253.006-.007.

         A county may also purchase land or condemn land for road purposes pursuant to its general
authority under eminent domain statutes. See TEX. LOC. GOV’T CODEANN. 69 261 .OOl(a) (Vernon
1999) (“A county may exercise the right of eminent domain to condemn and acquire land, an
easement in land, or a right-of-way if the acquisition is necessary for the construction of a jail,
courthouse, hospital, or library, or for another public purpose authorized by law.“), 270.001 (“A
The Honorable     Frank Madla - Page 4           (JC-0503)




deed, grant, or
              conveyance that is made, is acknowledged or proven, and is recorded as other deeds
of conveyance to a county, to the courts or commissioners of a county, or to another person for the
use and benefitof a county vests in the county the right, title, interest, and estate that the grantor had
in the propertyat the time the instrument was executed and that the grantor intended to convey.“);
TEX . PROP.CODEANN. 65 21.001-,040 (Vernon 1984 & Supp. 2002), 21.041--065 (Vernon 2000
& supp. 2002) ( eminent domain).

         Under these statutory provisions, it is clear that the authority to establish public roads is
vested in the commissioners      court, even in counties using alternate systems for county road
administration.   See citations, supra p. 2; see also Tex. Att’y Gen. Op. Nos. JM-1155 (1990) at 2
(“[Elven though each county commissioner is responsible for supervising road work in his precinct
and keeping himself informed as to road conditions, he generally has little further authority. The
County Road and Bridge Act . . . essentially means that county roads are opened, constructed, and
maintained by the commissioners court as a whole and not by individual county commissioners.“)
(construing statutory predecessor to Transportation Code, chapter 252, subchapter A, providing for
alternate system in which commissioners serve as ex officio road commissioners); JM-892 (1988)
at 5 (“If the commissioners court has no such general authority [to maintain a private road], it
follows that an ex officio road commissioner possesses no such power, his authority being subject
to commissioners court direction.“).

         In addition to the statutory provisions providing for the establishment     of public roads by
commissioners      courts, a road may also become a public road by dedication        or an easement by
prescription.

         “Dedication” of a private roadway is the setting aside of the roadway for the public use for
a passageway. See Viscardi v. Pajestka, 576 S.W.2d 16, 18 (Tex. 1978). For example, the owner
of a county subdivision may dedicate roads to the public in a subdivision plat pursuant to statute.
See TEX. Lot. GOV’T CODE ANN. ch. 232, subch. A (Vernon 1999 & Supp. 2002) (platting
requirements in county subdivision). When the cornmissioners court approves the subdivision plat
and the dedication is accepted, the roads become public roads. See, e.g., id. 0 232.002(a) (“The
commissioners court of the county in which the land is located must approve, by an order entered
in the minutes of the court, a plat required by Section 232.001. The commissioners court may refuse
to approve a plat if it does not meet the requirements prescribed by or under this chapter or if any
bond required under this chapter is not filed with the county.“); Tex. Att’y Gen. Op. No. JM-200
(1984) at 4 (“to render a dedication complete, there must be an acceptance of the dedication. An
acceptance, too, may be express or implied. A commissioners court expressly accepts a dedication
when it votes on and notes the acceptance in the minutes. However, the mere filing and approval
of a subdivision plat showing streets to be dedicated does not constitute an acceptance.          An
acceptance may be implied, for instance, . . . where a county makes repairs upon the street, or plats
it on official maps. An acceptance may also be implied from long-continued public use of the
property.“) (citations omitted); see also Tex. Att’y Gen. Op. Nos. JC-0172 (2000), JM-3 17 (1985).
The Honorable Frank Madla - Page 5               (JC-0503)




          Dedication may be also accomplished by either an express grant or by implication under the
common law. See Viscardi v. Pajestka, 576 S.W.2d at 19. Generally, an express dedication is
accomplished by deed or a written document. SeeMoody v. White, 593 S.W.2d 372,378 (Tex. Civ.
App.-Corpus       Christi 1979, no writ). Implied dedication, on the other hand, requires showing
unmistakable acts on the part of the landowner that clearly establish his intent to donate the land to
public use. See id. Whether dedication is implied or express, there are four distinct elements that
must be present: (i) the person who makes the dedication must have the ability to do so (i.e., the
landowner must have fee simple title); (ii) there must be a public purpose served by the dedication;
(iii) the person must make either an express or implied offer; and (iv) there must be an acceptance
of that offer. See id.; see also Las Vegas Pecan & Cattle Co. v. Zavala County, 682 S.W.2d
254, 256-57 (Tex. 1984) (“The essential elements of implied dedication are: (1) the acts of the
landowner induced the belief that the landowner intended to dedicate the road to public use; (2) he
was competent to do so; (3) the public relied on these acts and will be served by the dedication; and,
(4) there was an offer and acceptance of the dedication.“). Neither official adoption or recognition
is necessary in cases of implied dedication. The public can accept a dedication by general and
customary use. See Moody, 593 S.W.2d at 379.

         With respect to an easement by prescription, also a common-law doctrine, a private road may
become a part of the public domain after long and continuous usage by the public. The public’s right
to a road by prescriptive easement ripens after ten years of continuous ‘and uninterrupted public use
that is adverse and exclusive and that is open and notorious or known to the landowner and
acquiesced in by him or her. See generally Tex. Att’y Gen. LO-95-078, at 3. Generally, the public’s
prescriptive acquisition of a road is not dependent on the county’s recognition of the road as a public
highway. See id. (citing Porter v. Johnson, 151 S.W. 599, 601 (Tex. Civ. App.-Dallas 1912, no
writ); Love v. Olguin, 572 S.W.2d I7 (Tex. Civ. App.-El Paso 1978, writ ref d n.r.e.)).

         Both the courts and attorney general opinions have recognized that a county is authorized to
maintain not only those roads that have been officially established as public roads by the
commissioners court pursuant to statute, but also those roads that have become public roads by
dedication or by prescription under the common law. See, e.g., Stein v. Killough, 53 S.W.3d 36,43
(Tex. App.-San Antonio 2001, no pet.) (county is authorized to maintain roads “if the roads were
originally established as public roads by the commissioners’ court, by prescription, or by dedication
and acceptance by the public or local authorities”) (citing Tex. Att’y Gen. Op. No. JM-200 (1984));
Tex. Att’y Gen. Op. No. JM-200 (1984) at 3; Tex. Att’y Gen. LO-95-078 (the county may expend
county funds to maintain or improve the road that has become a public road by prescription). We
have not been able to locate any judicial or attorney general opinion, however, that addresses what
steps a county must take, if any, before maintaining roads falling in the latter category.

        In order to avoid the prohibition against county maintenance of private roads, a county may
bring a legal action to clarify the status of a road before maintaining it. See, e.g., Gutierrez v. County
of Zapata, 95 1 S.W.2d 83 1 (Tex. App.-San Antonio 1997, no writ) (action brought by county
against landowner seeking to enjoin interference with public’s right to use road and to declare it a
public road as a result of an express or implied dedication).          Alternatively, we believe that a
The Honorable Frank Madla - Page 6             (JC-0503)




commissioners court may determine that a road (that has not been officially established as a public
road) has become a public road by dedication or by prescription. Although no statute specifically
authorizes a commissioners court to determine whether a road has become a public road by easement
or by prescription and no judicial opinion directly addresses this issue, a 1969 opinion of this office
suggests that a commissioners         court has the implied authority to make an administrative
determination that a road has become a public road for the limited purpose of permitting county
action with respect to the road. See Tex. Att’y Gen. Op. No. M-534 (1969) (commissioners court
has the power to make an administrative determination that a road is a public road). Such a
determination would not, however, finally resolve the rights of private parties with respect to the
road. See id. Private landowners and others affected by a commissioners court’s detertnination that
a road is a public road may seek to have their rights adjudicated by a court. In such an action
challenging a commissioners court’s determination that a road is a public road, the status of the road
would be a question of fact. See, e.g., Lindner v. Hill, 691 S.W.2d 590, 591 (Tex. 1985) (“the
determination of whether a public right-of-way has been acquired by dedication is a question of
fact”); Gutierrez, 951 S.W.2d at 837 (status of roadway was decision for jury as trier of fact). On
the other hand, a court might accord the commissioners court’s determination greater deference in
a taxpayer action challenging the use of county funds to maintain a road. See, e.g., Tex. Att’y Gen.
Op. No. JC-0036 (1999) at 6 (“Whether a particular use of county funds is for a county purpose is
a determination that a commissioners court must make in the first instance, subject to judicial review
for abuse of discretion. Therefore, a commissioners court may expend county funds to improve a
city street if it determines that such expenditure serves a county purpose. A determination that the
expenditure serves a county purpose must, of course, be reasonable.“) (citing Commissioners Court
of Titus County v. Agan, 940 S.W.2d 77,80 (Tex. 1997); Tex. Att’y Gen. Op. No. JM-1255 (1990)
at 3).

         Given that the legislature has vested commissioners courts with the authority to establish and
maintain county roads, any county determination that a road has become a public road by common-
law dedication or prescriptive easement, and is therefore eligible for county maintenance, is a matter
for the commissioners court as a whole and is not within the authority of individual commissioners
or other road officials. See citations, supra pp. 2, 3-4; see also Maples v. Henderson County,
259 S.W.2d 264,268 (Tex. Civ. App.-Dallas 1953, writ ref d n.r.e.) (no member of commissioners
court acting alone may bind court or county in matter of road construction); Tex. Att’y Gen. Op. No.
JM-334 (1985) (un d er ex officio road commissioner system, commissioners court, rather than ex
officio road commissioner, determines when road has become a public road under the common-law
theories of dedication and adverse possession) (construing statutory predecessor to Transportation
Code, chapter 252, subchapter A, providing for alternate system in which commissioners serve as
ex officio road commissioners);       see also Tex. Att’y Gen. Op. No. JM-1155 (1990) (opening,
construction, and maintenance of county roads is matter for commissioners court as a whole).

        Significantly, the law operates somewhat differently in counties of 50,000 or fewer persons.
In those counties, the common-law doctrines of implied dedication and easement by prescription
have been modified by chapter 281 of the Transportation Code, which provides that an affected
The Honorable Frank Madla - Page 8              (JC-0503)




         Finally, we note that in addition to the possibility of county maintenance, the status of a road
as a public road will have other legal consequences for the landowner. For example, a “public road”
must be open to the general public and free of all obstructions.         See TEX. TRANSP.CODE ANN.
§ 25 1.008 (Vernon 1999); TEX. PEN.CODEANN. 8 42.03 (Vernon 1994) (offense of obstructing a
highway, street, or any other place used for passage of persons, vehicles, or conveyances); see also
Richardson v. State, 5 S.W.2d 141,142 (1928) (for purposes of criminal prosecution for obstructing
public road, road is a public road if facts establish that it “had long been used as a public road and
had been recognized as such by order of the [commissioners court] apportioning hands to work it”).
But see TEX. TRANSP.CODE ANN. 8 251 .OlO (Vernon Supp. 2002) (gates allowed on certain
third-class and neighborhood roads).
The Honorable Frank Madla - Page 9         (JC-0503)




                                    SUMMARY

                     A county is limited to expending public funds on the
            construction and maintenance of public roads. A county may not
            expend public funds to construct, improve, or maintain private roads,
            except as authorized by article III, section 52f of the Texas
            Constitution.  In general, a road may become a public road either
            pursuant to the statutory procedures set forth in the county road and
            eminent domain laws, by dedication, or by prescriptive easement.

                     Before maintaining     a road that has not been officially
            established as a public road, a commissioners court must either obtain
            a judicial order declaring the road a public road or, alternatively, in
            a county with a population greater than 50,000, make its own
            determination that the road has become a public road by dedication
            or by prescriptive easement. Private landowners or others affected by
            a commissioners court’s determination that a road is a public road
            may seek to have their rights adjudicated by a court. In such an
            action challenging a commissioners court’s determination that a road
            is a public road, the status of the road would be a question of fact.

                     In counties of 50,000 or fewer persons governed by chapter
            281 of the Transportation      Code, a commissioners     court is not
            authorized to determine that a road has become a public road by
            dedication or by prescriptive easement based on events occurring
            after that chapter’s effective date, or to maintain such a road on the
            basis of those common-law doctrines.




                                           Attorney General of Texas
The Honorable Frank Madla - Page 10         (JC-0503)




HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN DENMON GUSKY
Chair, Opinion Committee

Mary R. Crouter
Assistant Attorney General, Opinion Committee
