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DAN MORALES
 ATTORNEY
      CXNERAL                                         November      10, 1998



   The Honorable Howard Freemyer                               Opinion No. DM-487
   Kent County Attorney
   Kent County Courthouse                                      Re: Whether a commissioners court may establish
   Jayton, Texas 79528                                         a neighborhood   road pursuant to Transportation
                                                               Code section 251.053 (RQ-1209)

  .Dear Mr. Freemyer:

          Your questions concern section 251.053 of the Transportation Code, which authorizes                                     a
   county commissioners court to establish a “neighborhood road.” Section 25 1.053 provides:

                       A person who owns real property to which there is no public road’ or
                   other means of public access may request that an access road be established
                   connecting the person’s real property to the county public road system by
                   making a sworn application to the commissioners court requesting the court
                   to establish the road.

   Tramp. Code 9 25 1.053(b). Section 25 1.053 further provides:

                   If the [commissioners]     court determines that the applicants do not have
                   access to their real property and premises, the court may issue an order
                   declaring the lines designated in the application, or other lines established by
                   the court, to be a public road.

   Id. § 25 1.053(d). A property owner who incurs damages as the result of such a commissioners                           court
   determination is entitled to compensation. Id. $ 25 1.053(e).

            You tell us that the Kent         County Commissioners Court has received an application for the
   establishment of a neighborhood            road. The applicant does not have access to her property by way
   of a public road, but neighboring          landowners have permitted the applicant to use their private road
   to access the property for limited          purposes. You state that the applicant wishes to transport gravel



               ‘A “public road” for purposes ofchapter 25 1 is a “public road or highway that has been laid out and established
   according    to law and that has not been discontinued.”    Tramp. Code 9 251.002.
The Honorable Howard Freemyer            - Page 2        0X4-487)




away from her land, but the private landowners do not permit the applicant to transport gravel on
their road. The applicant seeks to have a public road established pursuant to section 251.053.

        Subsection (b) of the neighborhood road statute authorizes an application for a public road
when “there is no public road or other public means of access” to the applicant’s property. Id.
5 251.053(b) (emphasis added). Subsection (d), however, provides that an application for a
neighborhoodroadmay      be granted ifthe commissioners court determines “that the applicants do not
have access to their real property and premises.” Id. § 251.053(d) (emphasis added).

         You ask whether the applicant has “access” to her land within the meaning of section
251.053(d) if the applicant has access only by way of another landowner’s private road and if the
applicant is prohibited from using the private road for a certain purpose. You also ask whether
granting the applicant’s request for establishment of a neighborhood road, and the taking of private
property that would be required to establish the road, would violate article I, section 17 of the Texas
Constitution. Because we conclude that acourt would likely find that the neighborhood road statute
is invalid, we do not address your questions regarding what constitutes “access” under the statute.

        Article I, section 17 of the Texas Constitution provides: “No person’s property shall be
taken, damaged or destroyed for or applied to public use without adequate compensation being
made, unless by the consent of such person      .” This provision not only requires the payment of
adequate compensation for private property taken for public use, but prohibits the taking of private
property for private use. Marrs v. Railroad Comm ‘n, 177 S.W.2d 941,949 (Tex. 1944).

         Section 251.053, the current neighborhood road statute, is a nonsubstantive recodification
of former V.T.C.S. article 6702-1, section 2.006,* which replaced V.T.C.S. article 671 l.3 Former
V.T.C.S. article 6711 authorized the establishment of a road from private property to a public
highway if the commissioners court deemed the road to be “of sufficient public importance.“4 As
so written, the statute required a finding of public purpose for the taking of private property.
However, in 1953 the statute was amended to eliminate the public purpose requirement and to
authorize the establishment of the road upon a finding that the applicant had “no means of access”



          %e Act of May 1, 1995, 74th Leg., RX, ch. 165, $5 1, 25, 1995 Tex. Gen. Laws 1025, 1155-56, 1871
(repealing V.T.C.S. article 6702-1, the County Road and Bridge Act, enacting Transportation Code section 251.053,
and providing:  “This Act is intended as a recodification only, and no substantive change in law is intended by this
Act.“).

          ‘See Act of July 3, 1984,68th Leg., 2d C.S., ch. 8, 5 1, 1984 Tex. Gen. Laws 29.31-32 (repealing V.T.C.S.
article 6711 and reenacting and amending V.T.C.S. article 6702-l); Act ofMay 20, 1983,68th Leg., R.S., ch. 288,§ 1,
1983 Tex. Gen. Laws 1431.1435-37 (repealing V.T.C.S. article 6711 and enacting the County Road and Bridge Act,
V.T.C.S. article 6702-l).

         ‘Act of March 20, 1930,4lst   Leg., 5th C.S., ch. 62, § 1, 1930 Tex. Gen. Laws 207,207




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The Honorable     Howard Freemyer         - Page 3        (DM-487)




to his or her property.5 With respect to the constitutionality oftherevised statute, the Texas Supreme
Court held: “In so far as the amendment seeks to authorize the taking of private property for private
use, it is unconstitutional and void.” Maher v. Lasater, 354 S.W.2d 923,925 (Tex. 1962).

         While the Maher opinion appears to suggest that the neighborhood road statute could be
constitutionally applied if a public purpose is found,6 the court found no public purpose in the very
object that the statute is designed to accomplish, that is, the provision of a public road for a
landlocked private property owner. In Maher, an applicant sought to have the county establish a
public road across an adjacent landowner’s private property. The applicant argued that by enacting
the neighborhood road statute the legislature had declared “that a public purpose is served when land
is taken to provide a roadway for a landowner who has no means of access to his land.” Maher, 354
S.W.2d at 925. While the legislature may have so declared, the court said, “a mere declaration by
the Legislature cannot change a private use or private purpose into a public use or public purpose.”
Id. Instead, “the ultimate question of whether a particular use is a public use is a judicial question
to be decided by the courts.” Id.

         The Maher court was unpersuaded by the argument that providing access to land to further
a commercial enterprise serves a public purpose. ’ The applicant sought access to uninhabited
grazing and pasture land, a small portion ofwhich was suitable for cultivation. Id. at 924. “The only
possible public purpose conceivable which the road in this case can serve is that of putting the
products of the soil and the range      into the economy of the community.” Id. at 926. The court
held that taking private land for such a purpose would be an unconstitutional taking of private land
for a private purpose. Id. at 926 (citing Phillips v. Naumann, 275 S.W.2d 464 (Tex. 1955)).

        The Maher court also was unpersuaded by the argument that a public purpose is served by
guaranteeing a person access to his or her property. Id. at 924. The court cited its opinion in Phillips
v. Naumann, 275 S.W.2d 464 (Tex. 1955), where it declined to find a public purpose for a road
where “‘[tlhe undisputed evidence discloses that the only persons who could be benetitted by the
opening of this road are the Naumanns and persons who might desire to visit them.“’ Maher, 354
S.W.2d at 925-26 (quoting Phillips, 275 S.W.2d at 467).




         ‘Act of May 26,1953,53d    Leg., RX, ch. 438, $ 1, 1953 Tex. Gen. Laws 1054, 1055

           %is office considered the effect ofMaher in Attorney General Opinion WW-1368 (1962). We said: “[I]t
is the opinion of this office that the powers granted the Commissioners        Court by Article 6711, V.C.S., may be
constitutionally exercised.    only if the  Commissioners Court makes a finding that the road to be established would
be of sufficient public importance to warrant the taking of the land involved.” Id. at 3.

         ‘You tell us that the Kent County applicant wishes to use the road to haul gravel from “substantial   gravel
deposits” located on her property, presumably in furtherance of a business enterprise.




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The Honorable     Howard Freemyer         - Page 4         (DM-487)




         A statute authorizing the taking of private land for a road to landlocked property was held
unconstitutional   on the same grounds. In Estate of Waggoner v. Gleghorn, 378 S.W.2d 47 (Tex.
1964), the Supreme Court considered the constitutionality       of V.T.C.S. article 1377b, section 2,
which purported to grant to anyone who claimed the right to use real property surrounded by land
of another an easement over the surrounding land for ingress to and egress from the surrounded
property. Citing Maher and Phillips, the court found the statute unconstitutional, stating:

                  While respondent needs the [road] for his own convenience and that of
             his tenants and others who have occasion to be on the land north of the river,
             no one else will receive any direct benefit from the road. The economic use
             of such property will undoubtedly be facilitated by a ready means of access
             from the highway, but the public interest is not otherwise served in any way
             by the right of way which respondent seeks.

Id. at 49,

        The neighborhood road statute has not been substantively amended since the Maher decision
in 1962.’ It remains without a public purpose requirement for the taking of private property, in
contravention of article I, section 17 of the Texas Constitution.   While the Maher court seems to
suggest that the statute might be constitutionally applied if a public purpose is found, courts have
held that it cannot constitutionally be applied to achieve the very object for which it was enacted.
Thus we believe a court today would find that the statute is void. We conclude, therefore, that a
county commissioners court may not take private property for the purpose of establishing a road
pursuant to Transportation Code section 25 1.053, the neighborhood road statute.




         ‘The Sixty-eighth Legislature repealed V.T.C.S. article 6711 and enacted the County Road and Bridge Act,
V.T.C.S. article 6702-1, without substantive change. See Act of July 3, 1984,68tb Leg., 2d C.S., ch. 8,§ 1, 1984 Tex.
Gen. Laws 29,3 l-32; see also Senate Tramp. Comm., Bill Analysis, S.B. 24,68th Leg., 2d C.S. (1984). The Seventy-
fourth Legislature repealed V.T.C.S. article 6702-l and recodified the neighborhood road provision as Transportation
Code section251.053.    See Act ofMay 1, 1995,74thLeg.,     RX, ch. 165, $5 1,25, 1995 Tex. Gen. Laws 1025, 1155-56,
1871 (providing:   “This Act is intended as a recodification only, and no substantive change in law is intended by this
Act.“). Again, no substantive change in the law was intended by the recodification.




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The Honorable   Howard Freemyer    - Page 5      (~~-487)




                                     SUMMARY

               A county commissioners court may not take private property for the
           purpose of establishing a road pursuant to Transportation Code section
           251.053, the neighborhood road statute.




                                               DAN     MORALES
                                               Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by Barbara Griffin
Assistant Attorney General




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