         THEA                  ORNEY            GENERAL
                             OF         XAS
                            AUSTIN   a~.T~xas


                             June 27, 1962


Hon. Steve Hurt                            Opinion No. WW-1368
County Attorney
Hale County                                Re:    Does a Commissioners
Plainview, Texas                                  Court have the authority
                                                  to establish a public
                                                  road under Article 6711,
                                                  V.C.S., if the applicant
                                                  for said road resides on
                                                  the land into which there
                                                  is now no public road or
Dear Mr. Hurt:                                    public access?
          You have asked for the opinion of this office as to
whether or not the Commissioners Court of Hale County has au-
thority to establish a public road under Article 6711, V.C.S.,
If the applicant for said road resides on the land to which
there is now no public road or public access.
         A portion of Article 6711 Is quoted:
          "Any lines between different persons
    or owners of lands, any section line, or any
    practicable route, practicable route as used
    herein, shall mean a route which will not un-
    duly Inconvenience the owners or persons oc-
    cupying 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 en-
    closures, shall be declared a public highway
    on the following conditions:
          ...
                .   .   .

          “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 application, and
    If it appears that the said applicants have no
    means of access to their lands and premises, it
    may issue an order declaring the lines designated
    In the application, or such lines as may be fixed
    by the Commissioners Court, to be a public hlgh-
    way, and direct the same to be opened by the owners
Hon. Steve Hurt, page 2 (Ww-1368)


     thereof.   . . .'
          Prior to Its amendment In 1953, Article 6711 authorized
the Commissioners Court to act thereunder “if the Commissioners
Court deems said road of sufficient public importance." In a
case that grew out of an order of a Commissioners Court entered
under authority of this Article before the above quoted provl-
slon was deleted, this Article was held to be constitutional.
Phillips v. Stockton, 270 S.W.2d 266 (Civ.Ap   1954), reversed
on other grounds lb* Tex. 153, 275 S.W.2d 468:
          In the case of Maher v. Lasslter,      Tex.
354 S.W.2d 923 (1962), it was held that in aor    as ts'
Article purports to authorize the taking of private property
for private use It is unconstltutlonal. The fact situation
which Is the basis for this opinion request differs from that
of Maher only In that the present petitioner resides with his
family upon the land to which access Is being denied. We must
therefore examine Maher in an attempt to determine the precise
effect of that decision.
          In writing the Maher opinion, at page 925, Chief
Justice Calvert stated:
         "Prior to amendment by the Legislature In
    1953, Article 6711 authorized Commissioners
    Courts to declare a roadway to be a public hlgh-
    way only if they deemed *the road of sufficient
    public Importance.   As so written the statute
    conditioned the taklng,of property upon a finding
    that it would be dedicated to a public use. By
    Acts 53rd Leg., p. 1054, ch. 438, the requirement
    for a finding that the road was of public impor-
    tance was eliminated, and Commissioners Court
    are now authorized to declare a private roadway
    to be a public highway If applicants therefor
    wish It to be doneand ‘have no means of access
    to their lands and premises.' In so far as the
    amendment seeks to authorize the taking of prl-
    vate property for private use, It Is unconstl-
    tutlonal and void."
Further, at page 925, Chief Justice Calvert discussed the Phll-
lips case supra, and stated:
          "We held that the evidence established
     that Naumann had access to his land over another
     road and that there was no necessity for the
     established road. In deciding that question we
Xon.   Steve Hurt, page 3 (bJl:J-1368)


       assutmed,but did not hold, that it is of
         lblic importance that every person residing
       on land be provided access to and from hi:3
       land so that he may enjoy the privileges and
       discharge the duties of a citizen." Big
          We now have two primary cases dealing with the
constitutionality of Article 6711:  The Phillips case, which
held that the statute was consti+utional, in its pre-1953
form, and the Maher case, which says that the statute after
1953 is unconstitutional in so far as the amendment seeks to
authorize the taking of private property for private use.
20th of these cases dealt with situations wherein the landowner
did not reside on his land. In our present problem, the land-
owner does so reside, We must also note that the 'Court,in
Maher, specifically avoided declaring the entire Article un-
constitutional; rather, the Court's language served to li!::it
the scope of Article 6711 by re-establishing the pre-1953
requirement that "the road be of sufficient public importance."
The court then proceeded to indicate, In strong dicta, that
it is of public importance that every person residing on lan~d
be provided access to and from his land so that he may enjoy
the privileges and discharge the duties of a citizen.
          In view of the foregoing, it is the opinion of this
office that the powers granted the Commissioners Court by Arti-
cle 6711, v.C.S., may be constitutionally exercised in the
situation outlined only if the said Commissioners Court makes
a finding that the road to be established would be of sufficient
public importance to warrant the taking of the land involved.



       The Commissioners Court has the authority to establish
       a public road under Article 6711, V.C.S., if the said
       Commissioners Court makes a finding based upon proper
       facts, that the road to be established would be of
       sufficient public importance to warrant the taking
       of the land involved.
                                   WILL WILSON
                                   Attorney General of Texas



NL3:wb:mkh
Hon. Steve Hurt, page 4 (WW-1368)


APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Pat Bailey
Arthur Sandlin
Bill Allen
REVIEWED FOR THE ATTORNEY GENERAL
BY: Leonard Passmore
