                                           January 24,200O




The Honorable Charles D. Penick                     Opinion No. JC-0172
Bastrop County Criminal District Attorney
804 Pecan Street                                    Re: Whether a commissioners court may accept
Bastrop, Texas 78602                                and maintain roads in a gated subdivision
                                                    (RQ-0103-JC)

Dear Mr. Penick:

         You ask whether a commissioners court may accept a dedication of roads in a gated
subdivision and thereafter maintain the roads. The commissioners court may accept a dedication of
private roads to the county, but the roads will no longer be private roads after the acceptance. While
the county may not maintain private roads, it may maintain the roads after they become public roads.
Access to a public road may not be restricted by the landowner or owners on either side of it. Thus,
after the roads within a gated subdivision become public roads, the land owners may not block
access to them by means of a locked gate.

         Your inquiry concerns the roads within a gated subdivision in Bastrop County. You inform
us that the subdivision is outside the boundaries or extraterritorial jurisdiction of any city. There are
locked gates at the entrance to the subdivision, and only residents of the subdivision or their invited
guests have access to the subdivision. The roads are over sixty feet wide and paved according to
subdivision standards. Telephone Conversationwith Honorable Charles D. Penick, Criminal District
Attorney, Bastrop County (Dec. 16, 1999). The residents of the subdivision pay county road and
bridge taxes, as do all persons owning real property in Bastrop County. See Letter from Honorable
Charles D. Penick, Criminal District Attorney, Bastrop County, to Honorable John Comyn, Texas
Attorney General (Aug. 23, 1999) (on tile with Opinion Committee).                 The developers have
submitted a subdivision plat to the county for approval, but the county has not yet approved it. You
ask whether the commissioners court may accept a dedication ofroads in the gated subdivision and
thereafter maintain them.

        Bastrop County has authority to maintain public roads, but not private roads. TEX. TRANSP.
CODE ANN. 5 251.003(a) (Vernon 1999) (commissioners court of a county may construct and
maintain public roads). Article III, section 52f of the Texas Constitution authorizes a county with
a population of 5,000 or less, according to the most recent federal census, to construct and maintain
private roads ifit imposes areasonable charge for the work. See TEX. CONST. art. III, 4 52f. Bastrop
County, with a population of 38,263 according to the 1990 federal census, is not within this
The Honorable Charles D. Penick        - Page 2     (JC-0 172)




provision. See U.S. BUREAU OF THE CENSUS, COUNTYANDCITY DATA BOOK 522 (1994). Aside
from the narrow authority granted by article III, section 52f of the Texas Constitution,
counties are not constitutionally or statutorily authorized to construct or maintain private roads. See
generally Exparte Conger, 357 S.W.2d 740 (Tex. 1962); Tex. Att’y Gen. Op. Nos. JC-0016 (1999)
at 3, DM-13 (1991) at 3-4, JM-334 (1985) at 2, JM-200 (1984) at 2; see also Godley v. Duval
County, 361 S.W.2d 629,630 (Tex. Civ. App.-San Antonio 1962, no writ) (county labor, materials
or equipment may not be used for other than public use). Accordingly, as long as the roads within
the gated subdivision remain private roads, Bastrop County may not maintain them.

         A private road will become a public county road if the owner dedicates it for public use and
the commissioners court accepts the dedication. Seegenerally Priolo v. City ofDallas, 257 S.W.2d
947,952 (Tex. Civ. App.-Dallas 1953, writ ref d n.r.e.). “Dedication” is a setting apart of land for
public use. See id. at 953 n.2. We understand that the developer of the gated subdivision in Bastrop
County will dedicate roads to the public by filing a subdivision plat as required by chapter 232 of
the Local Government Code. Telephone Conversation with Honorable Charles D. Penick, Criminal
District Attorney, Bastrop County (Dec. 16, 1999); see Tex. Att’y Gen. Op. Nos. JM-317 (1985),
JM-200 (1984) (discussing procedures for dedicating roads for public use).

        Preparing a subdivision plat is essential to developing residential lots. The owner of a tract
of land located outside the limits of a city must have a plat of the subdivision prepared if he or she
divides the tract into two or more parts to lay out:

                        (1) a subdivision   of the tract   ;

                        (2) lots, or

                        (3) streets, alleys, squares, parks, or other parts of the tract
                intended to be dedicated to public use or for the use of purchasers or
                owners of lots fronting on or adjacent to the streets, alleys, squares,
                parks, or other parts.

TEX. Lot. GOV’T CODE ANN. § 232.001(a) (Vernon Supp. 2000). The plat must state, among other
things, the dimensions of each street, or other part of the tract “intended to be dedicated to public use
or for the use of purchasers or owners of lots fronting on or adjacent to the street.” Id. § 232.001(b).
If the land is outside of the extraterritorial jurisdiction of any city, the landowner must submit the
plat to the commissioners court for approval, and after the plat is approved, the landowner may file
it for record in the county clerk’s office. TEX. PROP. CODE ANN. 5 12.002 (Vernon Supp. 2000); see
also TEX. Lot. GOV’T CODE ANN. $9 232.0025 (Vernon Supp. 2000) (timely approval of plats);
242.001 (approval by city and county of plat for subdivision in the extraterritorial jurisdiction of a
city is generally required).     In general, a developer may not sell lots using the subdivision’s
description in selling until the plat has been approved and tiled for record with the clerk. See TEX.
PROP. CODE ANN. $ 12.002 (Vernon Supp. 2000) (restriction on selling not applicable where
The Honorable Charles D. Penick      - Page 3     (~~-0172)




conveyance of real property is expressly contingent on approval and recording of final plat and
purchaser is not given use of real property conveyed before recording of final plat).

         When the commissioners courts approves the subdivision plat and all other steps necessary
to effect the dedication are completed, the roads become public roads. See Tex. Att’y Gen. Op. Nos.
M-3 17 (1985), .JM-200 (1984). As public roads, they may be maintained by the county, but they
must also be free of all obstructions. See TEX. TRANSP. CODEANN. 4 251.008 (Vernon 1999); see
TEX. PEN. CODE ANN. 5 42.03 (Vernon 1994) (offense of obstructing a highway, street, or any other
place used for passage of persons, vehicles, or conveyances); but see TEX. TRANSP. CODE ANN.
$25 1,010 (Vernon 1999) (gates allowed on third-class and neighborhood roads). The owner of land
on both sides of a public highway has no authority to restrict use ofit by placing a gate over the right
ofway. See Perryv. Jagger-s, 9 S.W.2d 143, 145 (Tex. Civ. App.-Waco 1928, writ dism’d w.0.j.).
Accordingly, in answer to your question, we inform you that the commissioners court may accept
a dedication to the public of roads in a gated subdivision. The roads will thereby become public
roads that the commissioners court may maintain at county expense, but the owners of property in
the subdivision may no longer obstruct the roads with a locked gate.
The Honorable Charles D. Penick    - Page 4      (JC-0 172)




                                      SUMMARY


                       A commissioners court may accept a dedication to the county
              of private roads within a gated subdivision, but the roads will no
              longer be private roads after the acceptance. While the county may
              not maintain private roads, it may maintain the roads after they are
              dedicated as public roads. Access to a public road may not be
              restricted by the landowner or owners on either side of it. Thus, after
              the roads within a gated subdivision become public roads, the land
              owners may not block access to them by means of a locked gate.

                                              You s very truly


                                              L-               v-
                                               ;lJY
                                               JOtiN    CORNYN
                                               Attorney General of Texas



ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Susan L. Garrison
Assistant Attorney General - Opinion Committee
