                TEZEATTORNEYGENEIEU.L
                              OF      TEXAS
                             Awsaiw      11. .I?ExA~
  WILL   WILSON
A--        GENERAL
                                   June 29, 1960

         Mr. Nolan Queen
         County Attorney
         Parker County Courthouse
         Weatherford, Texas
                                   Opinion No. WW-872
                                   Re:     Interpretation of Arti-
                                           cle 6711, Vernon's Civil
         Dear Mr. Queen:                   Statutes.
                   Your letter requesting Information concerning
         Article 6711, Vernon's Civil Statutes, authorizing the
         establishment of roads connecting isolated property to
         the county road system has been directed to this office
         for reply.
                   In your letter you pose four questions. In
         answering, each question will be repeated below, along
         with the opinion of this Department as to its proper
         answer.
                     Your first question is,
                          "Is Article 6711 mandatory or
                     directory?"
                   It would be inaccurate to describe the statute,
         in its entirety, as being either "mandatory" or "direc-
         tory". The statute lists certain procedures whi~chmust
         be followed, and directs some actions of the county commis-
         stoners. However, the order which may be issued by the
         Commissioners1 Court after hearing the evidence is subject
         to the discretion of the court.
                     Your second question is,
                          'Whether Article 6711 is mandatory
                     or directory, if a Commissioners' Court
                     acts affirmatively upon a~ Petition in-
                     voking said article, is It required that
                     the said road be constructed to any point
                     further than the Petitioner's property line?"
                                                                . ,




Mr. Nolan Queen, page 2 (~~-872)


           Paragraph 1 of Article 671.1reads in part,
                'One . . . who desires an access road
           connecting his said land with the county
           public road system, may make a sworn ap-
           plication. . .' (Emphasis added).
           In Paragraph 3, the following language appears:
                       if it appears that the said ap-
           plica&s'have no means of access to their
           lands and premises . . ." (Emphass added).
           This use of the words "connecting" and "to" in-
dicates that a road authorized by this statute Is one
which runs from the property line of the isolated land
across intervening lands to a county road. The road ends
at the property line of the land to be connected to the
       road system. (See Phillips v. Nauman, 275 S.W. 2d
&%yt%68, Tex. Sup. Ct. 1955).
           Your third question is,
                "Is the Petitioner required to reside
           on the property to which he requires a road
           under Article 6711?”
           As Paragraph 1 of Article 6711 read prior to 1953,
ten freeholders, or one or more persons living within an
enclosure, were authorized to make application for a road to
the enclosed land. The statute was amended in 1953, elimi-
nating the requirements given above and giving the statute
its present reading. As Paragraph 1 now reads, residence
upon the land to which a road is sought Is not necessary. The
only requirement is that the person or corporation making
application for a road must owtithe land which the road re-
quested is to connect to the county road syste,m.
          Your fourth question is,
                "Can a public necessity exist when the
           Petitioner alleges only his invididual need
           for the public highway? What is meant by
           'public necessity'?
           Sections 2 and 3 of the amendatory Act of 1953,
are as follows:
I   .




        Mr.   Nolan Queen, Page 3 (Ww-872)

                        "Sec. 2. It is the purpose of this
                   Act to make accessible to the public, pro-
                   perties belonging to such private individ-
                   uals as have been deprived, or may be
                   deprived, of any means of access to their
                   said properties from the county public
                   road system, and which properties are not
                   now accessible to the general public, by
                   establishing such roads over the most
                   economical and convenient route to be de-
                   termined as hereinabove set out.
                        "Sec. 3. The fact that citizens and
                   landowners in this State have been depriv-
                   ed of a means of access to their properties
                   by actions of various governing bodies in
                   condemnation proceedings and by other means
                   beyond their control creates an emergency
                   and an imperative public necessity that the
                   Constitutional Rule requiring bills to be
                   read on three several days in each House be,
                   and the same is hereby suspended, and this
                   Act shall be in full force and effect from
                   and after its passage, and it Is so enacted."
                   When speaking of the authority of the Commisslon-
        ers 1 Court, the court in Bradford v. Moseley, 223 S.W. 171
        (Comm. APP. 1920), stated:
                         "Among other powers conferred and dut-
                   ,ies imposed upon them is 'to lay out and
                    establish, change and discontinue public
                    roads and highways'. . . . They are given
                   power to, and it is made their duty to,
                    order the laying out and opening of public
                    roads when necessary.    .   Being created
                   by express constitutional provision, they
                    are not courts of limited and special juris-
                    diction, but courts of general jurisdiction
                    In the sphere of the powers conferred on
                    them.
                         11
                          . . .
                        "Latitude and discretion is allowed
                   commissioners' courts in the matter of
                   opening roads, and, it being their duty
                   to open roads 'when necessary', they may
                   act upon their own motion."
Mr. Nolan Queen, Page 4 (~-872)

         The court also said:
              "What Is a public road is in a meas-
         ure dependent on the facts of each partl-
         cular case, but the character of a road
         does not depend on its length, nor upon
         the place to which it leads, nor Is its
         character determined by the number of
         people who actually travel upon it . . .
         A road may be established which is a
         cul-de-sac   . . A road open to the public
         is a public'road, though one person may be
         most benefited by It . . . It is a highway
         if there Is a general right to use it for
         travel, and if it is open to the use of all
         the people."
          The quoted sections of Article 6711 clearly ln-
dicate the intent of the Legislature in adopting amendments
to the statute. The statute as amended is to remedy the
situation existing when land owned by a person or corpora-
tion is so surrounded by other land owned by other persons
or corporations that It may not be reached without crossing
private property. This statute authorizes the connection
of such isolated land with the county road system.
          Bradford v. Moseley, quoted above, states plain-
ly that a road which is open to public travel is a "public
road" regardless of whether it is a cul-de-sac, dead-ending
at the property line of privately owned land, and regardless
of whether the road is of more benefit to one person than it
is to others. And the Commissioners' Court has the power
and the duty to lay out and establish such public roads as
it may regard as necessary and desirable.
                         SUMMARY
          (1)   Article 6711, Vernon's Civil Statutes,
                contains both mandatory and directory
                provisions.
          (2)   A road established by a Commissioners'
                Court under the authority of Article
                6711 can extend only to the property
                line and no further into the property
                being connected to the county road
                system.
Mr. Nolan Queen, Page 5 (WW-872)

            (3)   It is not necessary that anyone
                  reside upon the land to which a
                  road is sought under Article
                  6711.
            (4)   A "public road" Is any road upon
                  which the general public has a
                  right to travel. A Commissioners'
                  Court has the power and the duty
                  to establish a public road wherever
                  it feels such a road is necessary.

                                  Yours very truly,
                                  WILL WILSON
                                  Attorney General of Texas


                                  By?&                sdpdz
                                         Phocion S. Park, III
                                         Assistant Attorney General

psp:mm
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman

Mitchell Stevens
Thomas Burrus
C. Dean Davis
Tom I. McFarling
REVIEWED FOR THE ATTORNEY GENERAL
BY: Leonard Passmore
