Mr~. Austin Anderson                          Opinion No. S-88
Criminal   District Attorney
Bexar County                                  Re:   Necessity   to condemn right
San Antonio, Texas                                  of access to a future f*ee-
                                                    way, as distinguished  from
                                                    right of access to the exiat-
                                                    i,ng highways which the free-
Dear   Mr. Anderson:                                way will replace.

              Jn your recent opinion request concerning        freeways,   Article
10850, Vernon’s   Civil Statutes, you make the following      statements   and ask
the follewing questions.

               “Section 1 of the Article is the part with which we are
       concerned.    That section reads as follows:

                       ‘The State Highway    Commission      or the
               governing body of any incorporated       city or town,
              within their respective   jurisdictions     nxy do any
              and all things necessary    to lay out, acquire, co&-
              struct, maintain and operate any section or any
              portion of any Stprte Highway or C,ity street as a
              freeway, and to make any highway or street wit&
              in their respective  jurisdictions    a freeway, ox-
              oept that no existing State Highway or City street
              shall be converted into a freeway except with toe
              consent of the owners of abutting lands, OT Isy the
              purchase or condemnation       of their right ef access
              thereto, providing, however, nothing herein shall
              be construed as requiring the consent of the own-
              ers of abutting lands where a State Highway, or
              City street is constructed,    established,    or located
              for the first time as a new way for the use of ve-
              hicular and pedestrian traffic. ‘*

               “We think that Bexar County is bound by this sb&ub
       for the reason that under Article. 6674n, the State Highway
       Comrnbsionacka    throug,h the COIXNniSSiOndi8  CWart.

               “The question   we would like 8nAwared is %b:

                        ‘ls it legally sufficient to conde~mn the
               right of actes,s in and to the existing highway,     or
                                                                                                -   --




    e Mr. Austin    Anderson,   page 2 (S-88)




                      is it necessary  to condemn       the right of access
                      in and to the “freeway?“’

                      “You will notice   that Section    1 reads   in part that:

                              ‘No existing State Highway or City street
                      shall be converted into a freeway except with the
                      consent of the owners of abutting lands or by the
                      the purchase or condemnation    of their right of
                      access thereto, 0 a D ’

                   “The antecedent to ‘theretoP seems to be the hey to
           the proper interpretation.   The question resolves    itself into
           this:  To what does ‘thereto’ have reference,   existing high-
           way or freeway? n

                   In 1951, the Texas Legislature  passed the present              Freeway
     Act, and defined ‘“freeway” in Section 3 thereof.  This definition            is as fol-
     lows:

                    “Section 3. ‘Freeway’ means a state highway or city
            street in respect to which the right or easement    of access to
            or from their abutting lands has been acquired in whole or in
            part from the owners thereof by the State Highway Commis-
            sion or the governing body of an incorporated   city or town as
            herein above provided.”   Article  1085a, V. C. S.

                      Such a definition of freeway clearly presupposes  the existence
     of access     and egress rights to exist in abutting property owners to thefree-
     way.

                   Section 1 of Article    1085a merely authorizes    the State High-
     way Commission      or the governing body of any incorporated      city or town
.    to construct a freeway.    Hence, that portion of Section 1 which reads “ex-
     cept that no existing stats highway or city street shall be converted into
     a freeway except with the consent of the owners of abutting lands, or by
     the purchase or condemnation      of the right of access tlurreto,“clearly   au-
     thorizes the Highway Commission        to do no more than build a freeway,
     as defined by Section 3.

                   It is our opinion that in Section 1 of Article   1085a, V. C. S..,
     “thereto” refers to freeway.    Therefore,   it will be necessary   for you t+
     condemn the right of access in and to the freeway.
Mr. Austin   Anderson,    page 3 (S-88)



                                  SUMMARY

               Under Section     1 of Article J085a, V. C. S.. it is
      necessary   to condemn      right of access to a future free-
      way, as distinguished     from right of access to the exist-
      ing highway which the      freeway will replace.

APPROVED:                                      Yours   very tr~uly,

Rudy G. Rice                                   JOHN BEN SHEPPERD
State Affairs Divis~ion                        Attorney General

C. K. Richards
Reviewer

Robert S. Trotti                                 ’   Milton Richardson
First Assistant                                      Assistant
