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                                     The Attorney        General of Texas
                                                      July 15, 1985
    JIM MAlTOX
    Attorney General



    Supreme Churl Building         Rouorable Charles E. Penick             Opinion No.JM-334
    P. 0. Box 12548                Criminal District A,ttorney
    Austin, TX. 7871% 2548         Bastrop County Courthouse               Re: Whether a county may main-
    51Y475~2501
                                   Bastrop, Texas   78602                  tain a road which has not been
    Telex 810/874-1387
    Telecopier 51Y475-0286                                                 dedicated to the county

                                   Dear Mr. Per&k:
    714 Jackson, Suite 700
    Dallas, TX. 75202-4506
                                        You ask whether a county commissioner in Bastrop County cau
    2141742-8944
                                   maintain a private:,y-ownedroad in his precinct. We assume that the
                                   question is phrawd     in terms of the individual commissioner's
    4824 Alberta Ave., Suite 180   authority because I,astropCounty Commissioners act as ex officio road
    El Paso, TX. 799052793         commissioners in <heir own precincts pursuant to article 6702-l.
    915/53534B4                    sections 3.001-3.OM. V.T.C.S. This opinion does not deal with the
                                   scope of an individual commissioner's authority under those statutes
    1001 Texas. Suite 700          but only with the !)owerof a commissioners court or its proper agent
    Houston, TX. 77002.3111        to maintain certain types of roads.
    7lY223.5885
                                        In your letter you say that for a number of years Bastrop County
                                   has maintained a privately-owned road that is the only means of access
    808 Broadway. Suite 312
    Lubbock, TX. 79401.3479
                                   betveen a rural subdivision and county road. Although you do not
    BOY747-5238                    describe the nature or origin of the easement, you state that there is
                                   an easement across the road that runs in favor of the residents of the
                                   subdivision. You i.escribethe road as open to the public even though
    4309 N. Tenth, Suite S
                                   there is a sign ;it the juncture with the county road that says
    t&Allen, TX. 78501-1685
    5121682-4547                   "private road -- keep out."

                                       Your letter raises two separate questions:
    200 Main Plaza. Suite 400
    San Antonio, TX. 752052797
                                                1. Can   the   cominissiouers court    maintain
    512l2254191
                                             privately-owned roads?

    An Equal Opportunltyl                       2. If the comissioners court can maintain
    AffIrmaWe Actlon Employer                only public toads, is the road in question
                                             sufficiently public to come within the comis-
                                             sioners court'6 authority to maintain public
                                             roads?

                                        The legal basd~s for any action by a commissioners court must be
                                   found in the Texas Constitution or statutes. Canales v. Laughlin, 214
                                   S.W.2d 451, 453 (Tex. 1948). The Texas Constitution authorizes the




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Honorable Charles D. Penick - Page 2 (~~-334)




legislature to provide for ,theconstruction and maintenance of public
roads. Tex. Const. art. XI, 12. Several statutes give counties
general authority to maintrLj~npublic roads. V.T.C.S. arts. 2351.3,
2351.6; V.T.C.S. art. 6702-1, 52.002(b). Neither the constitutfon nor
any statute, however, gives counties general authority to maintain
private roads.    See Attorney General Opinion JM-200 (1984). Any
authority to do sowould have to be found in a provision authorizing
county maintenance of a private road under specified circumstances.
See, e.g., Tex. Const. art. .III,552f (giving counties with a popula-
tion of 5,000 or less power to maintain private roads for a fee, and
providing that revenue from such maintenance must be used for the
construction and maintenance of public roads). We find no such
provision applicable to the circumstances you describe.

     You also suggest in ycsur letter that the road in question might
be a public road for some purposes; you do net, however, suggest what
legal theory would support that claim. In a previous opinion we set
out the ways that a road -an become "public" so that a county has
general authority to maintain it. Attorney General Opinion .JM-200
(1984). A county can acqu:lrea road under statutes relating to the
establishment of roads, or a county can condemn the road and award
damages to the landowner :iu accordance with general condemnation
statutes. Doughty v. DePee, 152 S.W.2d 404, 410 (Tex. Civ. App. -
Amarillo 1941, writ ref'd ,w.o.m.). Also, the public can acquire an
interest under the theory k!lownas prescription or adverse possession.
See Ladies' Benevolent Soci.etyof Beaumont v. Magnolia Cemetery co.,
288 S.W. 812. 815 (Tex. Cm&'n ADD. 1926, iudnmt adopted). Finallv.
the owners &n grant the public &I inter&.; b; dedication. 288 S.iJ;
at 814. Dedication can be sn express or implied dedication at common
law, 288 S.W. at 814, or statutory dedication pursuant to statutes
governing subdivisions. --
                         See Attorney General Opinion .JM-200(1984).

     A 1981 statute applicr&le to Bastrop County1 limits the methods
by which certain counties can show a public interest in a private
road. V.T.C.S. art. 6812~1. Under article 6812h a county cannot
establish or receive any public interest in a private road except
by purchase,   condemnation, dedication, or     adverse possession.
"Dedication" for the purpose of   article 6812h  does not include the




     1. Article 681211app:.iesonly to counties with a population of
50,000 or less according to the last federal census. According to the
1980 federal census, BastrclpCounty has a population of 24,726. 1980
Census of Population, Vol. 1, Characteristics of the Population;
Chapter A, Number of Inhabitants; Part 45, Texas; issued March 1982.




                             p. 1524
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        Eonorable Charles D. Penick -.Page 3    (JM-334)




        cormnon-lawtheory  of implied dedication. See Lindner v. Hill. 673
        S.W.2d 611. 616 (Tex. App. .- San Antonio 19%    writ granted). Also,
        express verbal dedications are not dedications under 6812h. Several
        courts have held that artic3.e681211does not apply retroactively, so
        it vould not bar a claim tlult the nublic acauired an interest before
        August 31, 1981, under a theory n& foreclosed by article 6812h. Las
        Vegas Pecan i3 Cattle Co., !:ric.
                                        v. Zavala Co., 669 S.W.2d 808. 811-12
        (Tex. App. - San Antonio 19:34,no writ); Breithaupt v. Navarro~County,
        675 S.W.2d 335, 337-38 (Tex. App. - Waco 1984, writ ref'd n.r.e.).

             The facts you recite in your letter seem to preclude a showing
        under any of the applicabl~ztheories that the road in question is a
        public road. You state tlv~t Bastrop County has not condemned the
        road, nor has the road been dedicated to the county. Also, you state
        in your legal brief that the road is being used with the owner’s
        permi55ion "so it may not become a county road by prescription or use
        adverse to that  of the owner." We assume that the county has not
        purchased the road. If no public interest has arisen under statutes
        authorizing the establishment of road or condemnation, adverse
        possession, or dedication, (as limited by article 6812h), the
        commissioners court has no ,authorityto maintain the road.

                                      SUMMARY

                     The Bastrop County Commissioners Court has no
                  general authorit), to maintain private roads. A
                  private road cantt3.t become a public road except as
                  permitted by statute or under the common law
                  theories of ded:lcation, as limited by article
                  6812h, V.T.C.S., and adverse possession.




                                                JIM     MATTOX
                                                Attorney General of Texas

        TOM GREEN
        First Assistant Attorney   Genseral

        DAVID R. RICHARDS
        Executive Assistant Attorney General

        ROBERT GRAY
        Special Assistant Attorney G,eneral




                                          p. 1525
Eonorable Charles D. Penic'*- Page 4     (JM-344)




RICK GILPIN
Chairman. Opinion Conmittee

Prepared by Sarah Woelk
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpin, Chairman
Colin Carl
Susan Garrison
Tony Guillory
Jfm Moellinger
Jennifer Riggs
Nancy Sutton
Sarah Woelk




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