                                           July 7,200o



The Honorable Homer0 Ramirez                      Opinion No. JC-0245
Webb County Attorney
P.O. Box 420268                                   Re: Whether Webb County may replace a cattle
Laredo, Texas 78042-0268                          guard that was removed from a county road
                                                  (RQ-0183-JC)


Dear Mr. Ramirez:

         You have requested our opinion as to whether section 251.009 of the Transportation Code
authorizes Webb County to replace a previously existing cattle guard that was removed from a
county road. For the reasons set forth below, we conclude that it may not do so.

       Section 25 1.009 of the Transportation   Code reads, in its entirety:

                   (a) The commissioners court of a county with a population of less
               than 60,000 may authorize the construction of cattle guards on a
               county road of any class. A cattle guard authorized under this section
               is not an obstruction of the road.

                   (b) The commissioners       court shall establish plans and
               specifications for a standard cattle guard to be used on the county
               roads. The plans and specifications must be plainly written and
               supplemented by drawings as necessary and must be available for
               inspection by the residents of the county.

                   (c) A person who constructs a cattle guard on a county road that
               does not conform to the plans and specifications established under
               Subsection(b) commits an offense. An offense under this subsection
               is a misdemeanor punishable by a fine of not less than $5 or more
               than $100.

                   (d) The commissioners court may construct a cattle guard on a
               county road of any class and may pay for its construction from the
               county road and bridge fund if the court finds that the construction of
               the cattle guard is in the best interest of the residents of the county.
The Honorable Homer0 Ramirez            - Page 2     (X-0245)




TEX. TRANSP. CODE   ANN. 5 251.009 (Vernon 1999). Webb County, with a population ofmore than
60,000,’ may not, under subsection (a), “authorize the construction of cattle guards on a county
road,” See Tex. Att’y Gen. LO-89-065 (Webb County not authorized to construct cattle guards).
You question, in effect, whether the 60,000 population limit expressed in subsection (a) also
precludes Webb County from constructing a cattle guard under subsection (d).

        Section 25 1.009 of the Transportation Code was adopted in 1995.* Prior to that date, the
relevant provision, subsections (b)-(e) of section 2.007, article 6702-l of the Revised Civil Statutes
read:

                   (b) Any county in this state containing a population of less than
               60,000 inhabitants according to the most recent federal census may
               by a majority vote of the commissioners            court authorize the
               construction of cattle guards across any or all of the first-class,
               second-class, or third-class roads in said county, and the cattle guards
               may not be classed or considered as obstructions on the roads.

                    (c) A first-class    or second-class   road may not be reduced to a
                lower class.

                     (d) The commissioners court of any county coming under this
                section shall provide proper plans and specifications for a standard
                cattle guard to be used on the roads of the county. The plans and
                specifications shall be plainly written, supplemented by drawings as
                may be necessary, and shall be available to the inspection of the
                citizens of the county. After the commissioners court provides the
                proper plans and specifications for a standard cattle guard to be used
                on the roads of the county, any person constructing any cattle guard
                that is not in accordance with the approved plans and specifications
                prepared by the commissioners court is guilty ofobstructing the roads
                of the county, and the person responsible for the improper
                construction of the cattle guards commits a misdemeanor and shall be
                fined not less than $5 nor more than $100.

                    (e) The commissioners court of any county coming under the
                provisions of this section may construct cattle guards on the tirst-



        ‘See 1 BUREAUOFTHECENSUS,U.S.DEP’TOFCOMMERCE,          ~~~~CENSUSOFPOPULATION:
                                                                                    GeneralPopulation
Characteristics:Texas 4 (1992) (population of Webb County is 133, 239).

        *Act of May 1, 1995,74th Leg., RX, ch. 165,s 1, 1995 Tex. Gen. Laws 1025,1153.
The Honorable Homer0 Ramirez        - Page 3       (JC-0245)




               class, second-class, and third-class roads of the county and may pay
               for the construction out of the road and bridge funds of the county
               when in its judgment it believes the construction of the cattle guards
               to be in the best interest of the citizens of the county.

Act of May 20, 1983, 68th Leg., R.S., ch. 288, 1983 Tex. Gen. Laws 1431, 1437-38 (emphasis
added). Thus, the question before us is whether the 1995 codification, in removing the language
“coming under the provisions of this section” from what is now subsection (d) of section 251.009,
means that subsection (d) is now applicable to all counties rather than merely to those with a
population of less than 60,000.

         The bill enacting the 1995 Transportation Code declares that “no substantive change in law
is intended by this Act.“’ Prior to Fleming Foods v. Rylander, 6 S.W.3d 278 (Tex. 1999), we could
have accepted at face value this statement of nonsubstantive codification. The Fleming Foods rule
holds that a legislative declaration of “no substantive change” cannot be used to overcome a statute
that is written in clear and unambiguous language. Id. at 283-84. The rule is applicable, however,
only “[wlhen there is no room to interpret or construe the current law as embodying the old.” Id.
at 285.     The recodification, in order to trigger the Fleming Foods’ standard, must be “direct,
unambiguous,” and incapable of being “reconciled with prior law.” Id.

         In the situation you pose, this is not the case, as becomes clear by considering section
251.009 in context. It is well established that the words of a statute are to be read in context
according to the rules of grammar and common usage. TEX. GOV’T CODE ANN. 5 311.011(a)
(Vernon 1998). See Exparte Anderson, 902 S.W.2d 695,699 (Tex. App.-Austin 1991, writ ref d);
see also Bingham Y. State, 913 S.W.2d 208,210 (Tex. Crim. App. 1995). Considered in context,
section 25 1.009 makes clear that its every subsection refers to “a county with a population of less
than 60,000.” Subsection (d), and subsection (b) as well, speak of “the” commissioners court, in
contrast to “a” commissioners court, the latter term of which would be expected if subsections (d)
and (b) were applicable to all counties, regardless of population. The Oxford English Dictionary
defines “the” as “[m]arking an object as before mentioned or already known, or contextually
particularized (e.g., ‘We keep a dog. We are all fond of the dog.‘).” XVII OXFORD ENGLISH
DICTIONARY 877 (2d ed. 1989). This is precisely what occurs in section 251.009. Subsection (a)
defines the class of counties to which section 25 1.009 applies - counties with a population of less
than 60,000. Subsections (b) and (d) then simply “contextually particularize” this class by using the
phrase “the commissioners court,” in order to limit the class to those counties with a population of
less than 60,000.

       Because section 251.009 is not “direct, unambiguous, and cannot be reconciled with prior
law,” we conclude that Fleming Foods does not apply to the situation you present. Section 25 1.009


        ‘See Act of May 1,1995,74th Lq., R.S., ch. 165.5 25.1995 Tex. Gen. Laws 1025,187l
The Honorable Homer0 Ramirez       - Page 4      (JC-0245)




of the Transportation Code is applicable only to counties with a population of less than 60,000.
Thus, Webb County may not, pursuant to that statute, authorize the construction, including the
replacement, of cattle guards on county roads.

                                      SUMMARY

                      Under section 251.009 of the Transportation Code, Webb
               County may not replace a cattle guard that was removed from a
               county road.




                                              Attorney General of Texas



ANDY TAYLOR
First Assistant Attorney General

CLARK RENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General - Opinion Committee
