             EATTOKNEY              GENERA&                       .
                  OFTEXAS


                            July 9, 1951

Hon. Jim-W. Weatherby              Opinion No. V-1203
District   Attorney
38th Judicial    District          Re: 'Authority of the com-
Kerrvi$le,   Texas                     missioners1   court to
                                        open a neighborhood
                                       road under the sub-
Dear .Sir:                             mitted facts.
           'Reference ,is made to your request     for   our opln-
d.on, which reads in part as Soll.ows:
             "The Commissioners' Court of Randera
      County, Texas) have had presented to them a
      petition   by ten freeholders,    for an order
      to establish    a neighborhood road through
      two tracts'oS.land     separately   owned, lead-
      ing from a public highway through the land
      of others to land owned.by another party,
      under Article    6711, R.C.S. of Texas., This
      road Is a cul-de-sac,     and will .primarilg
      benefit the owner of the land where the
      road terminates.      This tract of land was
      purchase& by the present owner and it does
      not have a road leading to it.        The pre,vious
      owner used a road through enclosed land of
      another but the.road was,never established
      as a road by the commissioners court.         When
      the present owner of the'land purchased it,
      that Is, the land through which the road
      runs, he would not allow the owner of the
      land away from the road to use the road to
      get to~hie. land.     . . .
             "Does the Commissioners Court of Ran-           ,.
      dera County, Texas have the right to open
      this road under Article   6711, R.C.S.~ 09 ',
 .    Texlis?                                               ~\_

             "Does the fact that the road.wou3.d be
      a cul-de-sacand       primarily for the benefit
      of'the   owiier of the land where the same
      terminates,    affect    their jurisdiction?"
Hon. Jim W. Weatherby,    page 2     (V-1203)


           Under additional     facts submitted by the County
Attorney of Bandera County, it does not appear that any
of the petiti’oners   reside within an inclosure    and that
some of ,the petitioners    reside in the town of Medina and
one in San, Antonlo,‘while     others reside in the vicinity
of the proposed road.      Therefore,   we shall confine our
opinion to that part of Article       6711, V.C.S., which re-
lates to a petition    by ten freeholders.

          Article   6711, V.C,.S.,    provides   in part:
            ‘Any lines between different     persons or
     owners of lands, any section line, or any
     practicable    route, that the Commissioners ’
     Court may agree upon, in order to avoid
     hills,   mountains or streams through any
     and all inclosures,    may be declared public
     highways upon the following     conditions:
           “1 . Ten freeholders,   or one or more
     persons living within an inclosure,     who de-
     sires a nearer, better or more practicable
     road to their church, county seat, mill,
     timber, or water, may make sworn application
     to the Commissioners’    Court for an order es-
     tablishing  such road, designating    the lines
     sought $0 be opened and the names and resi-
     dences of the persons or owners to be af-
     fected by such proposed road, and stating
     the facts which show a necessity    for such
     road."

           The above statute was originally  Section 33 of
Chapter 64, Acts 15th Isg.,  1.876, p. 63.  Article  670
V.C .S. was also a part of the same act (Sees. 6 and 7
and provides as So$lows:
            *The commissioners    court shall in no
      instance grant an order on an application
      for any new’road, or to discontinue      an
      original  one, or to alter or change the
      course of a public. road, unless the appli-
      cants have given at least twenty days no-
      tice by written advertisement     of their
      Intended application,     posted up at the
      court house door of the county and at two
      other public places in the vicinity       of the      ’
      route of such road.      All such applications
     .shall be, by petition    to the commissioners
.   L




        Hon. Jim w. Weatherby,    page 3    (V-1203)   .


             court,    8lgned by at least eight Sreeholderq
             in the precinct      In which such road Is de-
             sired to bo made or discontinued,       spealfy-
             lng in such petition      the beginning and
             termination of such road, provided an ap-
             plication     to alter or change a road need
             not be signed by more than one freeholder        of
             the preoinct .*
                    Therefore,    since both Articles    5705 an4 6711
        were originally    a part of the same act, they should be
        construed together.       When this is done, we believe that
        the ten freeholders     referred   to in Article   5711 means
        freeholders   In the road precinct     in whi,ch the road is
        to be established     just as it does in Article     6705. Bow-
        ever, in Attorney Generalts Opinion V-443 (1947), It is
        stated:
                    “It is ok opinion that, Insofar as any
             residence, requirement is concerned,        ‘free-
             holders in thi ‘precinct’     and ‘freeholders     of
             the preainct ’must be given the same meaning.
             We have cpnolu4ed that such terms, within
             themselves,     do not imply that a’freeholder
             must be a reeibent     of the precinct.      Under
             the provisionr     of Article  6705, non-resident
             freeholders,     having a See interest    in real
             estate &a the road preoinct,      ‘are qualified
             petitioners   ‘.” ‘-
                   Under‘the ,facts submitted,      It is not stated
        whether the ten petitioners      are freeholders   in the road
        precinct where, the proposed road is to be located.          IS
        theg~are, the commissioners1 court would have jurisdic-
        tion In the matter, and should the commissioners’ court
        deter&Lne that such a road would provide “a nearer, bet-
        tez- or more practicable    road to their church, county seat,
        mill, timber or ,water ,‘I and that ,a necessity    exists for
        the’ road, it would be authorized to estab!lish such a road
        under fhe prov’isions    of Article  ,571l.

                   We believe your second               is answered by
        Attorney General’s, Opinion V-675             and the fact
        that the roa,d would be a                  d primarily for the
        benefit  of the owner of. the land where thr same terminates
        would not affect   the commissioners’ Court’s jurisdiction.
        We are encloslnp~ a copy ,,oS thls oplnlion.
                                                                    .   .

                           ,




Hon. Jim W. Weatherby,         page 4   (V-1203)

                                              i
                               SUMMARY
            The oomrmiss,loners~~~cou~t,,has,authqrity
     to establish    a neighborhood road upon,the
     petitlonof'ten     Sreeholders~ of the precinct
     in which the road Is to bei located iS,,lt
     finds that such road would provide "a near-
     er; better or more practicable. road to church,.
     county seat, mill,      timber, or water" and that
     a necesszty e+s        i"or.the road.   Art. 6711, lx
     V.C.S.       ' ,(
APPROVED:              "                    Your6 very truly,

J. C. Davis, Jr.                              PRICE DAKC&       ;
County ASSairs'Division                   : Attorney GeneraS.
Jes.se. P. &ton, Jr.
Reviewing Assistant
Charles D. Mathews
First Assistant
'BA?mw    :
