                           .December 5, 1969



Honorable Larry Miller             Opinion No. M-534
County Attorney
Hunt county                        Re:   Whether the commisrioners
Greenville, Texas                        court has,the powar to Ue-
                                         termine whether a road ir,
                                         or is not, a county road;
                                         has,.or haa not, been aban-
                                         doned.under Article 6703a;
                                         andwhether it may order the
                                         removal of .an obstruction
                                         from a road, the public nature
Dear Mr. Miller:                         of which ia in doubt.

     myour    request,for opinion you arrked.thefollowing questiona:

     (1)   "Does the CoIPAd8~ioner'aCourt have the power
           to datemine whether or not a road is a county
           road?
     (2). Doe8 the Commissioner'o Court have the power to
          determine whether or not.a road has been aban-
          doned under Vernon's.Revised.Civil Statutes,
          Artich  6703111
     (3) Doe8 the Commissioner's Court have the power to
         order the removal of an obstruction from a road
         which has,not beea cloned by a'petition under
         Article 6705 of the Revised Civ,ilStatutes of
         Texas? ,!
     A general statement of the law applicable to all three    que8-
tion8 is met out.in the fqllowinq quotation:
           "ALthough the commi+sioners' court, as the active
           governing body of the county, haa jurisdiction
           touching in some respeot.almoat every feature
           of the county’s buainesa, itr power extends only
           to such bu8ineaa of the county as ia entrusted to

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          Honorable Larry Miller, page 2 (M-534)

                    it by the constitution or statute. In other
                    words, the jurisdiction of the commissioners'
                    court over the county business is not general
                    and all-inclusive, but is limited to matters
                    or powers specifically covered by the con-
                    stitution and statutes. The court does not
                    have qene,ralpolice powers. Moreover, it must
                    conform to the statutory mode prescribed for
                    the exercise of its~powers." 15 Tex.Jur.Zd,
                    261, Counties, Sec. 35, and cases there cited.

               Ai.ticle 2351, Vernon's Civil Statutes, in part provides
          that:
                    "Each commissioners court shall:
                     .. .
                    "3.      Lay out and establish, change and dfs-
                             continue public roads and highways.
                     . . .

                    "6.      Exercise general control over all roads,
                             highways,,ferries and bridges in their
                             countie,s.
                     .. .

                     "15. Said court shall have all such other
                          powers and jurisdiction, and shall per-
                          form all such other duties, as are now
                          or may hereafter be prescribed by law."
               Article 6703, V.C.S., in part, prwidb       that:
                     "The commissioners court shall order the laying
                    out and opening of public roads when necessary,
                    and discontinue or alter any road when it shall
                    be deemed expedient...."
               Statutes'immediately following Article     6703,   supra, spell out
          the details to be followed thereunder.
               No specific constitutional or statutory provisions have been
          located which would grant-to the cammissioners court the power to
          make the judicial'determination respectinq,the rights of persons
          in real property which would be.involved in the determination of
          whether.any given area.,ofland is,or is not presently burdened
          with a public right of passage. The district courts have exclusive

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     Honorable Larry Miller, page 3 W-534)

     original jurisdiction in much matters.   Article 1906, Sec. 4,
     V.C.S.

          If the commissioners court, acting in the interest of the
     general public, and not simply as anenforcer of a private right,
     determines that a road is a public road, then in its exercise of
     general control over such road, it has the power, and it is duty
     bound, to order the removal of,an obstruction therefrom..,If the
     court is correct in its initial determination its or,dermay be
     enforced by appropriate civil or 'criminalactions.
           If the commissioners court determines a public interest in
     such road remaining open to public passage, and ,ia of the opinion
     that such road is a public road, but doem not desire to act at
     its peril, as the action above set out would require, it may seek
     .the prior determination by the district court as to the public
     nature of the road.
          Your questions are approached upon the premise that no action
     by the comuissionerm court is anticipated under the provisions of
     Sec. 3 of Article 2351, authorizing the couunissionermcourt to
     "discontinue" public roads , or under Article 6703, et meq, author-
     ising the "laying out and opening of public roads”.
          If the commissioners court is uncertain am to the status of
     a road because an individual's private property rights are in-
     volved; and such question is of personal rather than of public
     interest, then it is a question with which the commissioners court
     should not concern it elf, and a question which this office would
     be forbidden toattempe to answer'by reason of Article 4399,
     Vernon's Civil Statutes. The questiona are approached solely,.,on
     the basis of the powers of the conaissioners,court without regard
     to the property rights of the landowners 'involved.
          It is the opinion of this office that the answer to your first
     question is #at the commissioners court has the power to make an
     administrative tietermination,but im powerless to make a judicial
     determination, as to whether a road is, or is not, a public road;
     such administrative decision serving only as a foundation upon
     which the comntimmionerscourt may base its action or inaction in
     the matter.
          It is the opinion of this office that the answet to your
     second question is that the conuniaaionerscourt ham the power to
     make an administrative determination, but is powerless to make a
     judicial determination, as to whether a road has, or has not, been
     abandoned under the terns of Article 6703a, much administrative
     decision serving only as a foundation upon which the commissioners
     court may base its action, or inaction, in the matter.


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    Honorable Larry Miller, page 4 (N-534)

         It is the opinion of this office that the answer to your third
    question is that whether the commissioners court does, or does not,
    have the power to order the removal of an obstruction from a road
    is determined by whether the road is, or is not, in fact,  a county
    road: if it is a'county road the court has such power, if it is
    not a county road the court ham no much power; any ,such administra-
    tive determination by the commissioners court, either way, serves
    only as a foundation upon which the coumissionerm court may base
    its action, or inaction, in the mattes.
                                       SUMMARY
              The commismioners court may make an administrative
              determination, but is powerless to make a judicial
              determination as to whether a road is, or is not,
              a county road, or whether a road ham, or has not,
              been abandoned under Article 6703a, V.C.S., and whether
              a road is, in fact, a county road determines whether
              the commimaioners court has the power to order the
              removal of an obstruction therefrom. Any adininistra-
,             tive determinations am to such status by the cosunim-
              sioners court serves only am a foundation upon which
              the commissioners court may base any action or inaction
              thereon.




    Prepared by Harold G. Kennedy
    Assistant Attorney General
    APPROVED:
    OPINION COMMITTEE
    Kerns Taylor, Chairman
    George Xelton, Vice-Chairmen
    Malcolm Quick
    2.   T.    Portemcue
    Jack Goodman
    John Banks
    MEADE F. GRIFFIN
    Staff Leqal Assistant
L   NOLA WHITE
:First,Assistant
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