            THE    ATTORNEY       GENERAL
                      OF TEXAS

                       October 6, 1989



Honorable Pamela K. McKay        Opinion No. JM-1105
Kendall County Attorney
204 East San Antonio Street      Re: Authority of a commis-
Suite 12                         sioners court to reclassify
Boerne, Texas 78006              a second class road as a
                                 neighborhood road  (RQ-1768)

Dear Ms. McKay:

     You ask whether the commissioners court has authority
to reclassify a second-class road as a neighborhood     road.
Your specific question  is "whether [the county] can alter
the road classification specifically to allow a landowner to
make use of grazing land, and arguably inconvenience      the
non-landowners who use the road and [who] will be required
to negotiate two bump gates if the road is reclassified."

     You state that a landowner is interested in erecting
bump gates at either end of a 2.5 mile stretch of second-
class county road that runs through the owner's 558 acres of
grazing land. The erection of bump gates would allow the
owner to run goats on the property.    You advise that bump
gates are opened by nudging the gate with a vehicle's   front
bumper and that the gate closes behind the vehicle    without
the necessity of the driver exiting the vehicle.

     Subsection 2.007(f) of article 6702-1, V.T.C.S.,   sets
forth the conditions under which a gate may be placed across
a county road. Subsection 2.007(f) provides:

           The owners of land across which a third-
        class or neighborhood road may run, when the
        right-of-way for the road has been acquired
        without cost to the county, mav erect sates
        across the road when necessary, the gates to
        be not less than 10 feet wide and free of
        obstructions at the top.   (Emphasis added.)

     Subsection 2.007(a) of article 6702-l provides that the
commissioners court shall classify all public roads in the
county as first-class, second-class,   or third-class   roads
based on the width of the road.         Subsection   2.007(c)




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Honorable Pamela K. McKay - Page 2   (JM-1105)




provides that a "first-class or second-class road may not be
reduced to a lower class."

     Section 2.006 of article 6702-l sets forth the circum-
stances under which a commissioners court may establish    a
neighborhood road. Any landowner to whose land there is no
public road or means of access may apply to the commission-
ers court for an access road connecting his land with a
public road system. Id. 5 2.006(b). Notice must be given
affected landowners and, following a hearing, the commis-
sioners court may declare  lines designated in the applica-
tion or fixed by the court to be a public highway if it
appears that the applicant has no other means of access to
his land.1 Id. (c)t Cd).




     1. While the road in question     is in existence   and
there is no question of the taking of property by a county
for the use of an individual, the opinion of the supreme
court in Maher v. Lasater, 354 S.W.2d 923 (Tex. 1962), might
raise some question   about the constitutionality    of the
neighborhood road statute.    See 36 D. Brooks, County     &
Special District Law § 40.9 (Texas Practice 1989).

     In Maher, the court stated:

           Prior to amendment by the Legislature      in
        1953, Article   6711 authorized   Commissioners
        Courts to declare a roadway to be a public
        highway only if they deemed      'the road of
        sufficient public importance.' As so written
        the statute conditioned the taking of proper-
        ty 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 importance was elimin-
        ated, and Commissioners Courts are now auth-
        orized to declare a private roadway to be a
        public highway if applicants therefor wish it
        to be done and 'have no means of access to
        their lands and premises.I    In so far as the
        amendment seeks to authorize     the taking of
        private  property   for private use, it is
        unconstitutional .and void.

Maher, suora, at 925.




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Honorable Pamela K. McKay - Page 3    (JM-1105)




     You have provided us with a copy of a brief filed with
the commissioners   court in support of this landower's
application.  The brief recognizes that subsection  2.007(c)
prohibits the commissioners  court from reducing a second-
class road to a third-class road but urges that since a
neighborhood road is a distinct non-numerical classification
there is no limitation on reclassifying a second-class   road
as a neighborhood road.

     A prerequisite to the establishment of a neighborhood
road under section 2.006 is thatthere  is no means of access
for the landowner to a public road. Under the scenario you
have provided  there is a second-class   road in existence.
Therefore, there is no basis for establishing a neighborhood
road in the situation you describe.

                       SUMMARY

             The commissioners court is without auth-
        ority to reclassify a second-class road as a
        neighborhood road.




                                     JIM     MATTOX
                                     Attorney General of Texas

MARYKELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Tom G. Davis
Assistant Attorney General




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