                              ATTORNEYGENERAL                   OF   TEXAS
                                          GREG        ABBOTT


                                               May 12,2006



The Honorable Mark E. Price                                  Opinion No. GA-0430
San Jacinto County Criminal District Attorney
1 State Highway 150, Room 21                                 Re: Authority of a county to remove an
Coldspring, Texas 77331                                      abandoned mobile home from county right-
                                                             of-way (RQ-0412-GA)


Dear Mr. Price:

        Two mobile homes’ have been abandoned on the right-of-way of a county road in San Jacinto
County (the “County”)? You inform us that they present a potential safety hazard unless moved and
inquire whether a constable or county commissioner has a right or duty to remove them. See Request
Letter, supra note 2, at 1. You refer us to the Transportation Code and inquire whether section
545.305 1 authorizes the removal of the manufactured homes, see id., and whether it limits liability
for personal injury or death.’ See also TEx. TRANSP.CODEANN. $545.3051 (Vernon Supp. 2005).



        ‘Amobilehomeis a stmctllre
                  (i)   constructedbeforeJune 15, 1976;
                  (ii) built on a permanentchassis;
                  (iii) designedfor useas a dwellingwithor withouta permanentfoundationwhen
                        the stmctureis connectedto the requiredutilities;
                  (iv) transportablein one or moresecdons;and
                  (v) [withcertainminimumdimensions].
TEX.Oct. CODE   ANN.5 1201.003(17)   (Vernon2004).A “HUD-code manufactured  home”is a structurewithphysical
characteristics
              identicalto thoseof a mobilehomebutthatwas“constructedon or a&r June15, 1976,accordingto the
mlesoftheUnitedStatesDepartmentofHousingandUrbanDevelopment.”      Id. § 1201.003(9). Bothmobilehomesand
HUD-codemanufactured     homesare “manufacturedhomes.”Id. 5 1201.003(15).In this opinion, we willusetheterm
manufactured home.
        ‘Letterfrom HonorableMarkE. Price, San JacintoCountyCriminalDistrict Attorney,to HonorableGreg
Abbott,AttorneyGeneralof Texas(Nov.4,2005) (on file withthe OpinionCommittee,also available at http:iluww
.oag.state.tx.us)
               [hereinafterRequestLetter].

        ‘LetterfromHonorableMarkE. Price, San JacintoCountyCriminalDistrictAttorney,to HonorableGreg
Abbott,AttorneyGeneralofTexas(Dec.7,2005)(on file withthe OpinionCommittee,also available at http:llwww
.oag.state.tx.us)
               [hereinafierSupplementalRequestLetter].
Honorable Mark E. Price - Page 2               (GA-0430)




         Section 545.3051 was added to the Transportation Code in 2003. See Act of May 21,2003,
78th Leg., ch. 803, § I,2003 Tex. Gen. Laws 2355. At the time the provision was enacted, only the
Texas Department of Transportation was expressly authorized to remove personal property from
roadways and was provided liability protection for damage caused by the removal. See SENATE
COMM.ONINFRASTRUCTUREDEVELOPMENT&SECURIT(,BILLANALYSIS,T~~. S.B. 165,78thLeg.
R.S. (2003); see also TEX. TRANSP. CODE ANN. § 472.01 l-.015 (Vernon 1999 & Supp. 2005).
Section 545.3051 extended the authority to remove personal property from roadways to local law
enforcement entities. See TEX. TRANSP. CODE ANN. 3 545.305 1 (Vernon Supp. 2005). Section
545.305 1 also extended the liability protection enjoyed by the Texas Department of Transportation
to the local law enforcement entities. See id.

        Section 545.3051 provides that an “authority or a law enforcement agency may remove
personal property from a roadway or right-of-way if the authority or law enforcement agency
determines that the personal property blocks the roadway or endangers public safety.” Id. 5
545.3051(b). The section also provides that

               [n]otwitbstanding any other provision of law, an authority or a law
               enforcement agency is not liable for:

                       (1) any damage to personal property removed from a
               roadway or right-of-way under this section, unless the removal is
               carried out recklessly or in a grossly negligent manner; or

                        (2) any damage resulting from the failure to exercise the
               authority granted by this section.

Id. 5 545.3051(e).    The term “law enforcement agency” includes [the Texas Department of
Transportation], see id. $20 1 .OO1, a municipal police department, a county sheriff, and a constable.
See also id. 5 545.3051(2). The plain language of section 545.3051 gives removal authority to a
county constable but not to a commissioners court or an individual county commissioner.            See
Fitzgerald v, Advanced Spine Fixation Sys., 996 S.W.2d X64,865-66 (Tex. 1999) (court construes
a statute by looking to the plain meaning of the statute’s language).

        Section 545.305 1 authorizes the removal ofpersonal property. See TEX. TRANSP.CODEANN.
5 545.3051(3) (Vernon Supp. 2005). “Personal property” is defined as

                (A) a vehicle described by Section 545.305;

                (B) spilled cargo;

                (C) a hazardous material as defined by 49 U.S.C. Section 5102 and
                its subsequent amendments; or
Honorable Mark E. Price - Page 3                (GA-0430)




                (D) a hazardous    substance   as defined by Section 26.263, Water
                Code.

Id.   Section 545.3051 limits the term “vehicle” by reference to section 545.305. See id. 5
545,3051(a)(3)(A).    Section 545.305 does not expressly define “vehicle” but .rather describes the
circumstances that allow for the removal of an unlawlirlly stopped vehicle. See id. 5 545.305(a)
(Vernon 1999). The abandonment of the manufactured homes about which you inquire likely falls
within the circumstances described by section 545.305 if the homes are considered vehicles.4 See
id. 5 545.305(a)(5) (authorizing vehicle removal if unattended and an officer believes it to have been
abandoned for longer than 48 hours). Thus, we must determine if the manufactured homes are
“vehicles” as contemplated by sections 545.305 and 545.3051.

         Nowhere in chapter 545 is the term “vehicle” expressly defined. See generally id. ch. 545
(Vernon 1999 & Supp. 2005). Chapter 545 is contained in title 7, subtitle C of the Transportation
Code, however, and chapter 541 defines terms for the whole of subtitle C. See id. 5 541.201(23)
(Vernon Supp. 2005). Under section 541.201(23), the word “vehicle” is defined as a “device that
can be used to transport or draw persons         on a highway.” Id. 5 541.201(23) (“In this subtitle
    “). Section 541.201(23) expressly excludes from the definition “(A) a device exclusively used
on stationary rails or tracks; or (B) manufactured housing as that term is defined by Chapter 1201,
Occupations Code.” Id. Given the clear terms of the applicable statutory definition, we conclude
that amanufactured homeis not a”vehicle”forpurposes       ofsections 545.305 and 545.3051, andthus
is not “personal property” under section 545.305 1. A county constable, therefore, is not authorized
by section 545.305 1 to remove abandoned manufactured homes from county roads or right-of-ways.

         Though you inquire specifically only about section 545.3051, it appears your ultimate
concern is about the potential danger posed by the abandoned manufactured homes. We find other
authority by which a county may remove the abandoned manufactured homes from the right-of-way
of a county road. A county commissioners court has “general control over all roads, highways, and
bridges in the county.” Id. 5 25 1.016. “In the discharge of such duty [a commissioners court is the]
trustee[] of the public county roads for the whole public.” Hill Farm, Inc. v. Hill County, 425
S.W.2d 414,417 (Tex. Civ. App.-Waco          1968), uff’d, 436 S.W.2d 320 (Tex. 1969). The “general
control” language5 of the statutory predecessor of section 251.016 has been construed by the Texas
Supreme Court as authorizing county actions that are “related to [the county’s] duty to protect the
public’s interest in transportation.”   City of Sun Antonio v. City of Boerne, 111 S.W.3d 22, 30
(Tex. 2003) (citing Canales v. Laughlin, 214 S.W.2d 451, 456-57 (Tex. 1948)). Moreover, the
Transportation Code assigns a county the duty to keep all classes of roads free from obstructions.




       “Whetherthe manufactured
                              homeshavebeenabandonedis ultimatelya factquestionfor the County.SeeTex.
Att’yGen.Op.No. GA-0139(2004)at 5 (the opinionprocessdoesnot determinefacts).

        % 1999,section81.028of the Lo&l GovernmentCodewas significantlyamendedand this languagewas
 movedto the TransportationCodeas section251.016.SeeAct ofApril 23, 1999,76tbLeg.,RX, ch. 62, 5 13.1l(b),
 1999Tex.Gen.Laws127,351.
Honorable Mark E. Price - Page 4                (GA-0430)




See TEX. TRANSP. CODE ANN. 5 251.008(l) (V emon 1999). This office has previously opined that
a county commissioners court has the power to order the removal of an obstruction from a county
road. See Tex. Att’y Gen. Op. No. M-534 (1969) at 4. We believe that a county commissioners
court could conclude that the abandoned manufactured homes in the right-of-way of a county road
constitute an obstruction that affects the safety and transportation of the public. See, e.g., Tex. Att’y
Gen. Op. No. V-177 (1947) at 2 (stating that “[alny narrowing of the road to less than its legal width
is an obstruction, and any obstruction that interferes with the road in the sense of making it less
convenient for travel is an offense”). Through its general control over county roads and pursuant
to its duty to keep all classes of county roads free of obstructions, we believe the County
Commissioners Court has sufficient authority to remove the manufactured homes from the county
road right-of-way.

         You inquire whether there is potential civil liability if the abandoned manufactured homes
are not removed and someone is injured or killed. See Supplemental Request Letter, supra note 3,
at 1. As a manufactured home is not within the scope of section 545.3051, the liability protection
afforded a law enforcement agency under section 545.3051 is not applicable. Absent the specific
liability provisions of section 545.3051, we believe the Texas Tort Claims Act would address any
potential liability for the County’s failure to remove the abandoned manufactured homes. See TEX.
CIV. PRAC. & REM. CODE ANN. ch. 101 (Vernon 2005 & Supp. 2005) (Texas Tort Claims Act).
Because the merits of any particular lawsuit would be determined by the specific facts involved and
because this office does not resolve fact questions, se2 Tex. Att’y Gen. Op. No. GA-0298 (2005)
at 3 (opinion process cannot resolve fact questions), we do not opine on any potential County
liability under the Texas Torts Claims Act.
Honorable Mark E. Price - Page 5             (GA-0430)




                                      SUMMARY

                      Under the ‘clear terms of the applicable statutory definition of
             vehicle, which expressly excludes manufactured housing, amanufactured
             home is not included within the scope of section 545.3051,
             Transportation Code. Thus a county constable is not authorized by
             section 545.3051 to remove abandoned manufactured homes from the
             right-of-way of a county road. A county commissioners court may order
             the removal of manufactured homes pursuant to its general control over
             county roads and its duty to keep county roads free from obstructions.
             Because section 545.3051 is not applicable, all questions of potential
             liability would be addressed by the Texas Tort Claims Act.

                                             Verv trulv yours.




                                             Attome&.n&al        of Texas



BARRY R. MCBEE
First Assistant Attorney General

ELLEN L. WITT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Charlotte M. Harper
Assistant Attorney General, Opinion Committee
