                            ATTORNEY GENERAL OF TEXAS
                                       GREG       ABBOTT




                                         December    12,2003



The Honorable Kenneth Armbrister                    Opinion No. GA-0128
Chair, Natural Resources Committee
Texas State Senate                                  Re: Responsibility and liability for maintenance
P.O. Box 12068                                      of River Road in Refugio County, Texas
Austin, Texas 78’711                                (RQ-0068-GA)

Dear Senator Armbrister:

        You ask who is responsible for maintenance of a public road, and who may be liable for any
accident proximately    caused by the road’s condition. Your question was prompted by
correspondence from a citizen concerned about the maintenance of River Road in Remgio County,
Texas.

        In 2000 this office, representing the Texas Department of Parks and Wildlife, which owns
property on the road, sought a declaratory judgment that River Road was a public road. See State
v. Landgraf, No. 2000-7-9044 (24th Dist. Ct., Refugio County, Tex. Apr. 2,200l) (Final Judgment).
According to the state’s pleadings, River Road is a five-mile long gravel road that parallels the
Guadalupe River and ultimately crosses into Calhoun County. The State of Texas, as plaintiff,
asserted in its original petition that:

                River Road has been used openly and continuously by the public for
                at least seventy years and no permission has been sought or obtained.
                The State is unaware of any record of River Road having been
                formally dedicated to the public by a written instrument. However,
                Refugio County maintained River Road continuously for as long as
                local residents can remember until 1999, when Refugio County
                discontinued maintenance on River Road.

Id. (Plaintiffs Original Petition at 3). The court declared that River Road “is a public road, in which
the public has obtained an easement by prescriptive use and by implied dedication,” and enjoined
the defendant from “interfering with the use of River Road as a public way.” Id. (Final Judgment).
The Honorable Kenneth Armbrister            - Page 2        (GA-0128)




        You first ask “who is responsible for maintenance . . . of the county road.“’ The
correspondence enclosed with your letter notes that “[slince January, 1999, the landowners [and]
those of us who have property [and] cattle operations on this road have contributed to the
maintenance. This includes adding road material, grading [and] cattle guard repair.“*

         We believe, based on the judgment in the Landgraf case and the unbroken history of county
maintenance until 1999 reflected in the record, that a court would find that River Road is a county
road. The judgment in the Landgraf case declares that River Road is public by virtue of implied
dedication and prescriptive easement. Moreover, it appears that the county has impliedly accepted
that dedication by maintaining the road since the 1920s. Id. (Plaintiffs Original Petition at 3). See,
e.g., Lindner v. Hill, 691 S.W.2d 590, 592 (Tex. 1985) (fact that owner had allowed county to
maintain road showed offer and acceptance of dedication); City of Waco v. Fenter, 132 S.W.2d 636,
637-38 (Tex. Civ. App.-Waco 1939, writ ref d) (circumstances to be taken into consideration in
question of acceptance of alley include “that it has been improved for use as a thoroughfare”); Tex.
Att’y Gen. Op. No. JM-200 (1984) at 4 (acceptance may be implied from county maintenance).

        A commissioners court “may not discontinue a public road until a new road designated by
the court as a replacement is ready to replace it.” TEX. TRANSP.CODE ANN. 5 25 1.05 l(c) (Vernon
1999). “Discontinue,” for the purposes of chapter 25 1, means “to discontinue the maintenance of
the road.” Id. 8 25 1 .001(2). Furthermore, a commissioners court must discontinue a road by order.
Id. 9 251.051(a).

        The record suggests that the Refugio County Commissioners Court has taken no formal
action of the sort mandated by section 25 1.05 1 to discontinue River Road’s maintenance. Rather,
on two separate dates, the county attorney issued letters indicating the county’s intent to cease
maintaining the road.3 Accordingly, the commissioners court may not permanently cease the
maintenance without doing so formally by order and without designating a replacement.

         However, as the Dallas Court of Civil Appeals wrote in 1952 in Hill v. Sterrett, 252 S.W.2d
766, 770 (Tex. Civ. App.-Dallas 1952, writ ref d n.r.e.), “The Commissioners’ Court possesses a
broad discretion in the accomplishment of a constitutional objective; . . . for instance, maintenance
of public roads.” Id. (citations omitted). The decision as to how and where to expend limited public
funds or to use limited resources is a classic case of governmental discretion. Absent a showing of
abuse of that discretion, this decision is one for the commissioners court to make. “No principle of
law is better settled than that acts of discretion and findings of fact on the part of public officers to



        ‘Letter fromHonorable Kenneth Armbrister, Chair, Senate Committee onNatural Resources, to Division Chief,
Opinion Committee, Office of the Attorney General (June 17, 2003) (on file with Opinion Committee) [hereinafter
Request Letter].

         ‘Letter from Mr. Joe Custer, to Honorable Kenneth Armbrister,   Texas State Senator (June 10, 2003) (on file
with Opinion Committee) [hereinafter Custer Letter].

        3Letters from Honorable   Robert P. McGuill, Refugio County Attorney,   to Whom It May Concern      (June 15,
2000)(May 18, 1999) (on file with Opinion Committee).
The Honorable    Kenneth Armbrister     - Page 3       (GA-0128)




which the requisite power is confided, including county commissioners,         will ordinarily not be
disturbed on appeal.” County of Hays v. Alexander, 640 S.W.2d 73,78 (Tex. App.-Austin 1982,
no writ) (reviewing commissioners court order classifying county road); see also StovaZZ v. Shivers,
103 S.W.2d 363,366 (Tex. 1937) (A commissioners court “shall regard the roads and highways of
the county as a system, to be laid out, changed, repaired, improved, and maintained, as far as
practical, as a whole to the best interests and welfare of all the people of the county. It is clearly
contemplated that all roads and bridges of the county shall be maintained, repaired, and improved
when necessary, as the conditions may require, regardless of the precinct in which same may be
located, so far as the funds will equitably justify. . . . [A] commissioners court has the right to
exercise its sound judgment in determining the necessity, but it cannot act arbitrarily in regard to
such matter.“). Failure to maintain a road adequately, of course, may have consequences in the event
of accidents proximately caused thereby, the second area about which you inquire.

         Beyond the question of responsibility for road maintenance, you ask about possible tort
liability of the county or of private landowners “if citizens are maintaining the county road in lieu
of the county.” Request Letter, supra note 1. This question arises from your constituent’s concern
about “who is responsible for the safety of the driving public on this public road.” Custer Letter,
supra note 2. In the absence of any particular suit for damages, of course, the question is entirely
speculative. Accordingly, we can only describe in the abstract the general principles of law that
would apply in a particular instance.

         The Texas Tort Claims Act, chapter 101 of the Civil Practice and Remedies Code, generally
governs tort liability questions concerning a governmental unit, such as a county, see TEX. CIV.
PRAC. &REM. CODEANN. 8 101.001(2)(B) (V emon Supp. 2004), for an accident resulting from the
condition of a road. Section 101.021(2) of the Tort Claims Act provides that a governmental unit
is liable for “personal injury and death [proximately] caused by a condition or use of tangible
personal or real property if the governmental unit would, were it a private person, be liable to the
claimant according to Texas law.” Id. 9 10 1.02 l(2) (V emon 1997) (emphasis added). Accordingly,
the county may owe a duty of care equal to that of a private landowner.

        The particular section of the Tort Claims Act at issue in cases regarding a road condition is
usually section 101.022, which defines the governmental unit’s duty according to the nature of the
real property’s defect. Section 101.022 reads:

                          (a) If a claim arises from a premise defect, the governmental
                 unit owes to the claimant only the duty that a private person owes to
                 a licensee on private property, unless the claimant pays for the use of
                 the premises.

                          (b) The limitation of duty in this section does not apply to the
                 duty to warn of special defects such as excavations or obstructions on
                 highways, roads, or streets or to the duty to warn of the absence,
                 condition, or malfunction of traffic signs, signals, or warning devices
                 as is required by Section 101.060.

Id. $ 101.022.
The Honorable Kenneth Armbrister        - Page 4       (GA-0128)




        As the Supreme Court of Texas explained the difference between the two subsections              of
section 101.022 in State Department of Highways v. Payne, 838 S.W.2d 235 (Tex. 1992):

                If [the supposed cause ofthe accident] was a premise defect, the State
                owed [the plaintiff] the same duty a private landowner owes a
                licensee. That duty requires that a landowner not injure a licensee by
                willful, wanton or grossly negligent conduct, and that the owner use
                ordinary care either to warn a licensee of, or to make reasonably safe,
                a dangerous condition of which the owner is aware and the licensee
                is not. If [the cause] was a special defect, the State owed [the
                plaintiff] the same duty to warn that a private landowner owes an
                invitee. That duty requires an owner to use ordinary care to reduce or
                eliminate an unreasonable risk of harm created by a premises
                condition of which the owner is or reasonably should be aware.




                There are two differences between these theories. The first is that a
                licensee must prove that the premises owner actually knew of the
                dangerous condition, while an invitee need only prove that the owner
                knew or reasonably should have known. The second difference is
                that a licensee must prove that he did not know of the dangerous
                condition, while an invitee need not do so.

Id. at 237 (citations omitted).

         Cases involving the conditions of public roads are generally, but not always, premise defect
cases. Special defects “are excavations or obstructions, or other conditions which ‘present an
unexpected or unusual danger to ordinary users of roadways. “’ State Dep ‘t of Highways & Pub.
Transp. v. Kitchen, 867 S.W.2d 784,786 (Tex. 1993) (citations omitted). For example, a “chughole”
causing an accident has been held to be of such a size as to constitute a special defect, and therefore
to trigger a higher duty of care. County of Harris v. Eaton, 573 S.W.2d 177, 178-80 (Tex. 1978).

         Antecedent, however, to the question of the nature of the duty a county might owe the driving
public is the issue of whether in a particular instance it exercises sufficient ownership or control of
the road to owe any duty at all. In IDC, Inc. v. County oflvueces, 8 14 S.W.2d 91 (Tex. App.-Corpus
Christi 1991, writ denied), the question was whether Nueces County was liable for an accident
caused by a hole in the surface of a public road called Chapman Ranch Road. The county argued
that it owed no duty to the public for the condition of the road, a state highway, because it did not
own, occupy, or control the premises involved. The county’s evidence was that it did not own,
maintain, or control the road, but rather that the road was solely the state’s property. The appellate
court affirmed the trial judge’s entry of summary judgment for the county, writing, “It is fundamental
that the right of recovery for an injury sustained by the plaintiff as a result of the defendant’s conduct
must be founded upon a legal duty of some character owed to the plaintiff with respect to the injury
and a violation of that duty by the defendant.” Id. at 93.
The Honorable Kenneth Armbrister             - Page 5          (GA-0128)




        The question of ownership and control will frequently require the resolution of particular
facts, and is therefore not one in which this office ordinarily engages in the opinion process.4
However, in this instance, because the county has for a substantial number of years exercised control
over River Road and its condition, but has not taken the necessary formal action to discontinue
maintenance of the road, it might well be subject to the imposition of civil liability for an accident
proximately caused by the condition of the road.

         In addition, those who own or control real property may be under a duty to the public to keep
that property in a reasonably safe condition, if the public has a right of access to that property.
Moreover, one who neither owns nor controls real property may also be held liable for a dangerous
condition on that property if he creates the condition. LefmarkMgmt. Co. v. OZd, 946 S.W.2d 52,
54 (Tex. 1997); City ofDenton v. Page, 701 S.W.2d 831,835 (Tex. 1986); Strakos v. Gehring, 360
S.W.2d 787, 795 (Tex. 1962). Accordingly, if in their maintenance of River Road the private
landowners created a hazardous condition, they could be liable for accidents proximately caused by
that condition.

         Any given tort case of course will depend upon its own facts, and consequently we can advise
you only generally on potential liability matters. However, we reiterate that the issues in such a case
may include whether the defendant (county or private landowner) owned or controlled the property
in question, what the nature of the purported defect was, and what the nature and extent of the duty
owed the public was in the circumstances.       Even if the defendant does not exercise ownership or
control of the property, liability could attach in the event of an accident caused by a condition the
defendant created.




          4See Tex. Att’y Gen. Op. Nos. GA-0106 (2003) at 7 (“This office cannot find facts or resolve fact questions
in an attorney general opinion.“); GA-0003 (2002) at 1 (“factual findings . . . cannot be made in the opinion process”).
The Honorable Kenneth Armbrister     - Page 6      (GA-0128)




                                       SUMMARY

                        A commissioners    court may not permanently      cease to
               maintain a public road without formally ordering that the road be
               discontinued and designating an alternative route. See TEX.TRANSP.
               CODE ANN. $9 251.001(2), 251.051(a), (c) (Vernon 1999). A
               county’s decision as to the frequency of its maintenance of any
               particular county road is a matter for the discretion of the
               commissioners court.

                        Liability in tort for an accident proximately caused by the
               condition of a road to which the public has a right of access will
               depend upon the resolution of a variety of questions. These questions
               may include the ownership or control of the road in question, the
               nature of the duty owed the public in a particular instance, whether
               the defect alleged is a premise defect or special condition, and
               whether or not a particular party caused the defect in question.

                                             Very truly yours,




BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

James E. Tourtelott
Assistant Attorney General, Opinion Committee
