                                ATTORNEY GENERAL OF TEXAS
                                              GREG        ABBOTT




                                                  January 25,2011



The Honorable Joel D. Littlefield                          Opinion No. GA-0835
Hunt County Attorney
Post Office Box 1097                                       Re: Constitutionality of Texas Transportation
Greenville, Texas 75403-1097                               Code section 251.053, concerning a commissioners
                                                           court's declaration of a public road (RQ-0900-GA)

Dear Mr. Littlefield:

        You ask whether section 251.053 of the Transportation Code, concerning commissioners
court authority to declare a public road, is unconstitutional and void because it violates the
prohibition in Texas Constitution article I, section 17 against taking private property for nonpublic
uses.! Section 251.053, pertaining to "neighborhood roads," authorizes a commissioners court to
declare a line as a public road, following an application by an owner of "real property to which there
is no public road or other public means of access" and a public hearing on the application. TEX.
TRANSP. CODE ANN. § 251.053 (West 1999) (further providing for assessment of damages incidental
to opening the public road, including the right to be compensated for the taking). 2 You specifically
reference an opinion of this office that discussed constitutional concerns about section 251.053,
Attorney General Opinion DM-487 (1998). Request Letter at 2; Tex. Att'y Gen. Op. No. DM-487
(1998) at 4.

        In DM-487, this office reasoned that section 251.053 is unconstitutional because it would
allow a taking of private property for a nonpublic purpose in violation of article I, section 17 of the




         'See Request Letter at 1-2 (available at http://www.texasattorneygeneral.gov).

          'The procedure in section 251.053 is to be distinguished from common-law doctrines establishing a way of
necessity. See, e.g., Koonce v. Brite Estate, 663 S.W.2d 451, 452 (Tex. 1984) ("Texas case law establishes that when
a grantor conveys part of a tract of land while retaining the remaining acreage for himself there is an implied reservation
of a right of way by necessity over the land conveyed, when no other access exists.").
The Honorable Joel D. Littlefield - Page 2                     (GA-0835)



Texas Constitution. Tex. Att'y Gen. Op. No. DM-487 (1998) at4. 3 Moreover, the opinion surmised
that "a court today would find that [section 251.053] is void." Id.'

         By concluding that section 251.053 is void in its entirety, DM-487 suggests that the statute
is unconstitutional on its face. A statute may be challenged as unconstitutional on its face or as
applied to a particular party or set of facts. Tex. Workers' Compo Comm'n v. Garcia, 893 S.W.2d
504, 518 n.16 (Tex. 1995). A statute is facially unconstitutional if, by its terms, it always operates
unconstitutionally. Barshop V. Medina Cnty. Underground Water Conservation Dist., 925 S.W.2d
618,623,627 (Tex. 1996). Section 251.053 of the Transportation Code is unconstitutional to the
extent that it "seeks to authorize the taking of private property for private use." See-Maher V.
Lasater, 354 S.W.2d 923, 925 (Tex. 1962) (concerning predecessor statute). However, the
Legislature has reenacted the substance of section 251.053 on three separate occasions. 5 In enacting
a statute, the Legislature is presumed to intend compliance with the constitution. TEX. GOV'T CODE
ANN. § 311.021(1) (West 2005). Accordingly, we must assume the Legislature· intended a
commissioners court to exercise its powers in section 251.053 consistently with article I, section 17
of the Texas Constitution. Nothing in the terms of section 251.053 precludes its use to declare
a public road to serve a legitimate public purpose on proper facts. 6 We conclude that section
251.053 of the Transportation Code is not unconstitutional on its face, and Attorney General Opinion
DM-487 is overruled to the extent it suggests otherwise. A commissioners court may exercise its
authority to declare a public road under the section, but only if it does so consistently with article I,
section 17 ofthe Texas Constitution.


          'In 2009, this constitutional guarantee was substantially rewritten to provide, in pertinent part, that "[nlo
person's property shall be taken, damaged, or destroyed for or applied to public use without adequate compensation
being made, unless by the consent of such person, and only if the taking, damage, or destruction is for ... the ownership,
use, and enjoyment of the property, notwithstanding an incidental use, by ... the State, a political subdivision of the
State, or the public at large" or an entity with eminent domain authority. 'TEx. CONST. art. I, § 17(a). Moreover, as
amended, article!, section 17 expressly excludes the taking of property for economic development orlo enhance tax rolls
as an acceptable "public use." [d. § \7(b).

          'Attorney General Opinion DM-487 based its conclusion largely on Maher v. Lasater, a Texas Supreme Court
opinion that considered an article I, section 17 challenge to a statutory predecessor of section 251.053. Tex. Att'y Gen.
Op. No. DM-487 (1998) at 3-4 (citing Maherv. Lasater, 354 S.W.2d 923 (Tex. 1962)). In Maher, the court held that
the statute was unconstitutional, not in its entirety, but rather, "[tlo the extent that the Article purports to authorize the
taking ofprivate property for private use." !d. at 926 (emphasis added). See also Tex. Att'y Gen. Op. No. WW-1368
(1962) at 3 (concluding that the holding in Maher limited the scope of the statute by reestablishing a requirement that,
to declare a public road under the statute, the commissioners court must make a finding, based upon proper facts, that
the road would be of sufficient public importance to warrant the taking).

         'See Act of May 1, 1995, 74th Leg., R.S., ch. 165, §§ 1, 25, 1995 Tex. Gen. Laws 1025, 1155-56, 1871
(repealing article 6702-1 of the Revised Civil Statutes and enacting Transportation Code section 251.053); Act of July
3, 1984, 68th Leg., 2d C.S., ch. 8, § 1, 1984 Tex. Gen. Laws 29, 31-32; Act of May 20, 1983, 68th Leg., RS., ch. 288,
§ 1,1983 Tex. Gen. Laws 1431, 1435-37).

          ''The ultimate question of whether a particular use under Transportation Code section 251.053 is a public use
is a question of law to be decided by the courts. See Maher, 354 S.W.2d at 925 (stating that "the ultimate question of
whether a particular use is a public use is a judicial question to be decided by the courts").
The Honorable Joel D. Littlefield - Page 3       (GA-0835)



                                       SUMMARY

                       Section 251.053 of the Transportation Code is not
               unconstitutional on its face. A commissioners court may exercise its
               authority to declare a public road under the section, however, only if
               it does so consistently with article I, section 17 of the Texas
               Constitution, providing for the payment of adequate compensation.
               Attorney General Opinion DM-487 is overruled to the extent that it
               suggests that section 251.053 is unconstitutional on its face.

                                              Very truly yours,




DANIEL T. HODGE
First Assistant Attorney General

DAVIDJ. SCHENCK
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

William A. Hill
Assistant Attorney General, Opinion Committee
