                                 ATTORNEY GENERAL OF TEXAS
                                               GREG       ABBOTT




                                                    July 11,2003



The Honorable Ronald D. Hankins                             Opinion No. GA-0088
Somervell County Attorney
P.O. Box 1335                                              Re: Authority of a county commissioners court
Glen Rose, Texas 76043                                     partially to close or, alternatively, limit truck
                                                           traffic on a county road (RQ-0018-GA)

Dear Mr. Hankins:

         You ask four questions related to the possibility of county regulation of truck traffic on
Somervell County Road No. 406 [“CR 406”], and the possibility of closing a section of CR 406 upon
the petition of a group of land owners in the affected area.* As you explain the underlying facts, a
rock-crushing and mining operation has opened in Johnson County near the road in question, and
a “possible, and likely, route for truck traffic from this operation is along CR 406 northward to U.S.
Hwy. No. 67 . . . .” Request Letter, supra note 1, at 1. The residents of this stretch of road would
prefer that it not be used by large trucks from this operation, fearing that such traffic “will pose
safety risks and cause diminution to the value of their property.” Id. at 2. Accordingly, they have
petitioned the Somervell County commissioners court to close to the public the portion of CR 406
running past their properties.

         The petition was made pursuant to section 25 1.052 of the Transportation                  Code, which reads
in relevant part:

                             (a) The residents of a precinct may apply for a new road or a
                   change in an existing road by presenting to the commissioners court’
                   a petition signed by:

                                    (1) eight property owners in the precinct, if the
                   application is to request a new road or that a road be discontinued; or

                                    (2) one property owner in the precinct, if the
                   application is for a change in a road other than discontinuing the road.




           ‘See Letter from HonorabIe Ronald D. Hankins, Somervell County Attorney, to Honorable    Greg Abbott, Texas
Attorney    General (Feb. 5,2003) (on file with Opinion Committee) [hereinafter Request Letter].
The Honorable Ronald D. Hankins        - Page 2       (GA-0088)




TEX. TRANSP. CODE ANN. 9 251.052(a)         (Vernon 1999). The petition specifically calls on the
commissioners court to “abandon, close, vacate and/or alter County Road 406 in the interest of
PUBLIC SAFETY, by closing the road beginning at the Somervell County/Johnson County line and
continuing Northwest 175 feet, ending at 911 marker #2465.” Petition to Somervell County
Commissioners Court (posted Dec. 23, 2002) (emphasis added). As an alternative to closing this
section of road, you also ask us to consider the provisions of sections 25 1.153 and 62 1.301 of the
Transportation Code, which permit a county to establish weight limits for trucks operating on county
roads and bridges.

I.      Countv Authority to Regulate Overweight Trucks

          You ask first whether the county has “any effective regulatory authority to limit truck traffic
on CR 406 or the weight thereof?” Request Letter, supra note 1, at 2. Your fourth question is
essentially the same, under the assumption that “the majority of the trucks will be overweight
permitted by TxDOT.” Id. at 4. As you note, section 25 1.153 of the Transportation Code, a part of
the County Road and Bridge Act, permits a commissioners court to “establish load limits for any
county road or bridge.” TEX. TRANSP. CODE ANN. 8 251 .153(a) (Vernon Supp. 2003); Request
Letter, supra note 1, at 2. The same power is reiterated by section 621.301(a) of the code. See TEX.
TRANSP.CODEANN. 5 621.301(a) (Vernon Supp. 2003). However, section 62 1.301(e) provides that
a vehicle “may operate . . . over a road for which the commissioners court has set a maximum weight
under this section” if the vehicle has obtained a permit issued under the following sections: 623 .Ol 1,
623.071, 623.094,623.121,623.142,623.181,623.192,            or 623.212, which provide for permits for
oversize or overweight vehicles. Id. 8 62 1.301(e). Moreover, section 623.018 provides that a
commissioners court may not “regulate or restrict the operation of’ an overweight vehicle with a
permit issued by the Texas Department of Transportation [TxDOT] under section 623.011 “because
of weight.” Id. 5 623.018(d) (Vernon 1999). We note that, pursuant to section 621.353 of the
Transportation Code, fifty dollars of the fee collected by TxDOT for each excess weight permit is
distributed to the counties, to be shared among them proportionately to the number of miles of
county road each county maintains. Id. § 621.353(a).

         In Scurlock Permian Corp. v. Brazos County, 869 S. W.2d 478 (Tex. App.-Houston [ 1stDist]
1993, writ denied), the court of appeals considered the relation of the statewide system for permitting
overweight vehicles to the power given the county to set load limits and concluded that “the specific
provisions of [the statutory predecessor to article 623.0181 are an exception or qualification to the
general provisions of the County Road and Bridge Act; and that [the statutory predecessor] prevails.”
Scurlock, 869 S.W.2d at 486. The scheme of chapters 621 through 623 of the Transportation Code
is, as Scurlockpoints out, intended to “establish statewide uniformity in the permitting of overweight
vehicles.” Id. at 485. Accordingly, to the extent that the traffic that concerns you consists of trucks
with overweight permits issued by TxDOT, the county may establish “load limits,” but those limits
are not applicable to vehicles that obtain an overweight permit authorized by Texas law. See TEX.
TRANSP. CODE ANN. 5 623.018 (Vernon 1999).
The Honorable    Ronald D. Hankins ‘- Page 3         (GA-0088)




II.     County Prohibition   of Truck Traffic Generallv

          As an alternative to county weight regulation of such trucks, you ask whether the county may
post this section of road as a “No Thru Truck Traffic” road. Request Letter, supra note 1, at 2. The
“commissioners court of a county may regulate traffic on a county road,” TEX. TRANSP.CODE ANN.
$251.151 (V emon 1999), and “may adopt regulations establishing a system of traffic control devices
in restricted traffic zones.” Id. 9 25 1.155(a). Accordingly, the commissioners court may post this
portion of road as a “No Thru Truck Traffic” road. However, a county may not regulate or restrict
permitted trucks on the basis of weight if the truck has the appropriate permit, see id. f~623.018, and
therefore must in such a situation forbid all truck traffic, not merely that of trucks with overweight
permits.

III.    Remedies   for Damages

         You further ask in this regard if “the County’s sole remedy [is] a suit against the permittee”
and if so, what the burden of proof would be. Request Letter, supra note 1, at 2. Because we cannot
determine without reference to any particular situation how the county might be damaged, we cannot
canvass every possible cause of action of which the county might avail itself. However, we note that
section 25 1.160 of the Transportation Code provides joint and several liability for the owner and
operator of a vehicle that negligently causes damage to a road or bridge. See TEX. TRANSP.CODE
/INN. 5 25 1.160 (Vernon 1999). The elements of a common-law action for negligence are the
existence of a legal duty, a breach of that duty, and damages proximately caused by that breach. See
Thapar v. Zezulka, 994 S.W.2d 635,637 (Tex. 1999). The general rule in Texas civil cases is that
proof must be by a preponderance of the evidence. See Ellis County State Bank v. Keever, 888
S.W.2d 790,792 (Tex. 1994).

Iv.    Methods for Closing CountvRoad,      and the Requirement   of a Replacement    in Some Instances

       You next ask whether the county may close a portion of a public road without providing a
new connecting road. See Request Letter, supra note 1, at 3. There are a variety of methods by
which a road can be closed, and neither the petition nor your letter specifies a particular method.

         “Generally, the commissioners courts have long possessed the power to lay out, open,
discontinue, or alter any public road.” Smith County v. Thornton, 726 S.W.2d 2,3 (Tex. 1986). The
authority granted a commissioners court to establish and close roads is granted by section 25 1.05 1
of the Transportation Code, which provides in relevant part:

                (b) A unanimous   vote of the commissioners   court is required to:

                       (1) close, abandon, or vacate a public road; or

                       (2) alter a public road, except to shorten it from end to end.
The Honorable Ronald D. Hankins        - Page 4        (GA-0088)




                (c) The comtnissioners court of a county 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(b), (c) (Vernon 1999).

         The various statutory terms appear to refer to different actions a county may take with respect
to a county road. For the purposes of chapter 25 1 of the Transportation Code, “‘Discontinue’ means
to discontinue the maintenance of the road.” Id. 9 25 l.OOl(2). Further, “[a] public road or highway
that has been laid out and established according to law and that has not been discontinued is a public
road.” Id. 4 25 1.002. Accordingly, by the terms of section 25 1.05 1, a commissioners court may not
cease to maintain a public road as such until a new road is ready to replace it.

         While the county may not “discontinue” a public road without providing an alternate route,
the provision of section 25 1.05 1(b)( 1) that it may “close, abandon, or vacate” such a road does not
by its terms include such a restriction. The term “close” is not defined in the County Road and
Bridge Act. However, both “abandon” and “vacate” are. To abandon is “to relinquish the public’s
right of way in and use of’ a road, id. 9 25 1 .OOl(l), and to vacate is “to terminate the existence of
the road by direct action of the commissioners court.” Id. § 25 1.001(3). Because the provisions for
abandoning or vacating a road do not include the requirement that the road be replaced, the
commissioners court may either relinquish the public’s right of way in a road or terminate the road’s
existence without providing a replacement.         Similarly, the county may alter a road, as section
25 1.05 1(b)(2) suggests, without providing an alternate route.

V.      Potential Actions Against Countv

         You next ask whether closing CR 406 could “give rise to a damages claim by the quarty
owner whose operations do not abut CR 406, but abut Johnson County Road No. 1234.” Request
Letter, supra note 1, at 3. As you note, section 25 1.05 8 of the Transportation Code provides that “[a]
property owner may not enjoin” a commissioners court order “to close, abandon and vacate a public
road or portion of a public road” unless the property owner owns land abutting the portion of the
road in question or the portion of road “provides the only ingress to or egress from” the property.
TEX. TRANSP. CODE ANN. 9 251.058(a) (Vernon 1999). However, a person whose property abuts
the road at another point is not deprived of the “right to seek compensation for damages caused by”
depreciation in property values or impairment of a vested right to ingress or egress. Id. fj 25 1.058(c).
In this case, the entrance to the quarry owner’s property is on Johnson County Road 1234, and as you
note CR 406 “runs into Johnson County and becomes Johnson County Road No. 1234.” Request
Letter, supra note 1, at 3.

        If the potential action for damages were brought as an inverse condemnation case asserting
only that the circuitous route injured the rock-crushing operation, Texas case law would not support
it. “[WI e h ave often disallowed, and never allowed, recovery in an inverse condemnation case for
damages resulting from a diversion of traffic or a circuity of travel.” State v. Schmidt, 867 S.W.2d
769, 774 (Tex. 1993). However, we caution that the situation about which you ask-effectively
The Honorable Ronald D. Hankins        - Page 5        (GA-0088)




closing a county border along what has been a public highway open to through traffic-is highly
unusual. We cannot predict with any certainty what possible causes of action or theories of damage
an aggrieved party might elect and cannot rule out the potential for exposure to damages.

VI.     Constitutional   Ouestions Under Article III, Section 52(a)

         We note that any decision by the commissioners to grant the petition here is a discretionary
one, and as such is subject to review by the district court on an abuse of discretion standard. Among
the considerations for the commissioners court, in this regard, is the question of the public benefit
of the proposed road closing. Article III, section 52(a) of the Texas Constitution requires that a
county not “lend its credit or . . . grant public money or thing of value in aid of, or to any individual,
association, or corporation whatsoever . . . .” TEX. CONST.art. III, 5 52(a)., In this case, the grant in
question might occur if the commissioners ceded the right of way to the petitioners. The purpose
of article III, section 52(a) has been held to be “to prevent the application of public [property] to
private purposes.” Byrd v. City ofDallas, 6 S.W.2d 738, 740 (Tex. 1928).

         However, the use of public funds or things of value for a legitimate public purpose does not
violate the Texas Constitution. See Tex. Mun. League Intergovernmental Risk Pool v. Tex. Workers ’
Comp. Comm ‘n, 74 S.W.3d 377,383 (Tex. 2002). Further, expenditures with a public purpose that
incidentally benefit private parties are constitutional. Barrington v. Cokinos, 338 S.W.2d 133, 140
(Tex. 1960).

         The determination as to whether a particular grant of public funds or things of value serves
a public purpose is, in the first instance, for the governmental body to make. See, e.g., Young v. City
of Houston, 756 S.W.2d 813, 814 (Tex. App.-Houston [ 1” Dist.] 1988, writ denied). In regard to
state statutes, the Texas Supreme Court has devised a three-part test of the matter, requiring the
legislature to ensure that the predominant purpose is public, that there are certain controls established
so that the purpose is accomplished, and that a benefit is received. See Tex. Mun. League, 74 S.W.3d
at 384. Similarly, with respect to counties, this office has said that a commissioners court should
determine in good faith that a public purpose is served and place sufficient controls on the
transaction so that the purpose is carried out. See Tex. Att’y Gen. Op. No. JC-0582 (2002) at 6.

         The question of whether the county might violate article III, section 52(a) by abandoning a
road pursuant to what is now section 25 1.058 of the Transportation Code was considered by this
office in Attorney General Letter Opinion 94-053. In that case, the Brazoria County commissioners
court proposed to allow a subdivision to remove its streets from the county road system and to erect
a gate and guardhouse on what, at the time, was a county road. Attorney General Letter Opinion 94-
053 concluded that this arrangement did not violate article III, sections 5 1 and 52 because, under the
common law, the easement for a public road reverts, when the road is abandoned, to the owner of
the abutting fee, and accordingly upon abandonment a county “has no public property to grant.” Tex.
Att’y Gen. LO-94-053, at 5.

       It is not clear from the petition or your letter whether the county contemplates ceding the right
of way to the abutting landowners. Were the county to do so, however, and were a court to follow
The Honorable Ronald D. Hankins      - Page 6       (GA-0088)




the reasoning of Attorney General Letter Opinion 94-053, there would be no constitutional question
involved in the action you propose. However, there is a clear factual distinction between closing
access to a gated subdivision, as in that case, and closing a regularly traveled public thoroughfare
in such a manner that only the residents of the small area in question will be able to travel between
two counties on it. Accordingly, the commissioners court would be well-advised to articulate a
public purpose for the closing of CR 406.

         Finally, you note that “[i]t seems unfair that the general public should be burdened with an
operation’s use of county roads for its business in a manner that increases the cost to the citizens
generally of providing such roads.” Request Letter, supra note 1, at 4. Policy considerations such
as this are a matter for the legislature, rather than of this office in the opinion process.
The Honorable   Ronald D. Hankins     - Page 7       (GA-0088)




                                        SUMMARY

                         A commissioners court may not impose additional regulations
                with regard to weight on trucks granted an overweight certificate by
                the Texas Department of Transportation, but may ban all through
                truck traffic on a portion of a county road. A commissioners court
                may not discontinue a public road until a road designated to replace
                that to be discontinued is ready to replace it. However, the court may
                abandon or vacate such a road without replacing it.

                                               Very truly yours,




BARRY R. MCBEE
First Assistant Attorney General

DON R. WLLLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

James E. Tourtelott
Assistant Attorney General, Opinion Committee
