Untitled Texas Attorney General Opinion ( 2005 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
August 9,2005
The Honorable William E. Parham Opinion No. GA-0345
Wailer County Criminal District Attorney
836 Austin Street, Suite 103 Re: Authority of a county to accept a private road
Hempstead, Texas 77445 into its county road system under either Local
Government Code section 81.032 or Transportation
Code section 252.214 (RQ-0316-GA)
Dear Mr. Parham:
You inform us that several landowners in a private subdivision have approached the Waller
County Commissioners Court with questions about the county’s authority to accept a private road,
Lynnwood Lane (“Lynnwood”), into the Waller County road system.’ Specifically, you tell us that
the landowners have agreed to grant Waller County an easement over, or a gift deed to, Lynnwood
and would furnish all the materials necessary to upgrade its condition. See Request Letter, supra
note 1, at 2. In response to the landowners’ proposition, you ask if either Local Government Code
section 81.032 or Transportation Code section 252.214 authorizes the commissioners court to accept
the interest in Lynnwood along with the materials the landowners have offered to refurbish it as an
alternative to the procedures outlined in the Transportation Code that apply to counties and their
authority to bring p&ate roads into the county road system. See id.
You have identified two relevant chapters from the Transportation Code. The first,
Transportation Code chapter 281, governs a commissioners court’s authority to acquire a public
interest in a private road in counties with populations of less than 50,000 people, see TEX. TRANSP.
CODEANN. $5 28 1.OOl, ,002 (Vernon 1999), which is the case for Waller C~unty.~ According to
this chapter, a county may acquire a public interest in a private road only by purchase, condemnation,
express dedication, or a court’s final judgment of adverse possession. See id. $281.002. Here, the
landowners wish to donate an interest in the private road to the county by gift deed or easement.
See Request Letter, supra note 1, at 2. Under chapter 281 such a donation is accomplished by
dedication, which is “an explicit voluntary grant of the use of a private road for public purposes . . .
‘See Letter from Honorable William E. Parham, Wailer County Criminal District Attorney, to Honorable Greg
Abbott, Texas Attorney General (Feb. 7,2005) (on file with Opinion Committee, also available at http://www.oag
.state.tx.us) [hereinafter Request Letter].
‘See BUREAUOF CENSUS,U.S. DEPT. OF COMMERCE,
2000 CENSUSOF POPULATION,
available at
http://quickfacts.census.gov/qfdstates/48/48473.htrnl (Wailer County population: 34,579).
The Honorable William E. Par-ham - Page 2 (GA-0345)
[that] must be communicated in writing to the commissioners court of the county in which the real
property is located.” TEX. TRANSP. CODE ANN. 0 281.003(a) (Vernon 1999). However, “an oral
dedication or intent to dedicate by overt act is not sufficient to establish a public interest in a
private road under this chapter.” Id. 5 281.003(b). And “[a] dedication is a mere offer; the
commissioners court must accept it for the street or road to become a county road.” Tex. Att’y Gen.
Op. No. GA-0139 (2004) at 4.
The second chapter, Transportation Code chapter 253, applies generally to counties and
governs a commissioners court’s authority to improve private subdivision roads. Seegenerally TEX.
TRANSP. CODE ANN. $0 253.001-.Oll (Vernon 1999 & Supp. 2004-05).3 Specifically, it permits a
commissioners court to improve a private subdivision road to comply with county standards if the
court determines that the improvement4 is necessary for the county residents’ public health, safety,
or welfare and to assess the cost of the improvement against the subdivision’s record owners, see
id. $ 253.003 (Vernon Supp. 2004-05). But the commissioners court must hold a public hearing
on the issue and obtain approval of a majority vote of the landowners in the subdivision. See id.
$5 253.005-.007 (Vernon 1999 & Supp. 2004-05). A road improved this way is a county road that
the county is required to maintain according to county road standards. See id. 9 253.011 (Vernon
1999).
You ask about two provisions that authorize commissioners courts to accept donations.
Local Government Code section 81.032 permits a commissioners court to “accept a gift, grant,
donation, bequest, or devise of money or other property on behalf of the county for the purpose of
performing a function conferred by law on the county or a county officer.” TEX. Lot. GOV’T CODE
ANN. 9 81.032 (Vernon Supp. 2004-05). Similar in design, Transportation Code section 252.214
permits a commissioners court that has adopted the chapter 252 county road superintendent system’
to “accept donations of labor, money, or other property to aid in building or maintaining roads in the
county.” TEX. TRANSP. CODE ANN. 5 252.214 (Vernon 1999).
You suggest that these provisions operate as alternative means of bringing a private road into
the county road system:
As the county has the right to acquire a public interest in a private
road, and has the right to accept gifts or donations to aid in building
or maintaining roads (a function allowed the county), it appears that
the commissioners’ court may accept the easement or deed along with
‘Chapters 253 and 28 1 are cumulative such that a county with a population of 50,000 or less may bring a road
into the county road system under either section 253.011 or 281.002. See Tex. Att’y Gen. Op. No. GA-0139 (2004)
at7.
4“Improvement” is defined in the chapter as “construction or repair.” TEX. TRANSP.CODE ANN. 0 253.002
(Vernon 1999).
5We assume that by your reference to section 252.214, see Request Letter, supra note 1, at 3, Waller County
has adopted the chapter 252, subchapter C road superintendent system such that section 252.214 would apply.
The Honorable William E. Parham - Page 3 (GA-0345)
the materials and accept Lynnwood Lane into the Waller County road
maintenance system.
Request Letter, supra note 1, at 3.
This office has previously established that neither Transportation Code section 252.214 nor
Local Government Code section 8 1.032 authorizes a commissioners court to accept a donation for
purposes inconsistent with the state constitution or laws. See Tex. Att’y Gen. Op. Nos. JC-0073
(1999) at 2-3 (establishing this for section 252.214); JC-0443 (2001) at 2-3 (establishing this for
section 8 1.032). And though Texas Constitution article III, section 52f permits a county with a
population of 5,000 or less to construct and maintain private roads if it imposes a reasonable charge
for the work,6 counties with populations that exceed 5,000, like Waller County, are not
constitutionally or statutorily authorized to construct or maintain private roads. See Tex. Att’y Gen.
Op. No. JC-0503 (2002) at 2. Thus, these two provisions do not authorize the Waller County
Commissioners Court to accept donations for maintaining a private road. Moreover, Transportation
Code chapters 253 and 28 1 operate as the exclusive statutory authority by which Waller County may
bring a private road, like Lynnwood, into its county road system. The Waller County Commissioners
Court may accept donations for maintaining a road under Transportation Code section 252.214 or
Local Government Code section 8 1.032 only after the road has become a part of the county road
system either through a donation of the private road by dedication under Transportation Code chapter
28 1 or after the county improves the private road under Transportation Code chapter 253.
6See TEX. CONST.art. III, 9 52f.
The Honorable William E. Parham - Page 4 (GA-0345)
SUMMARY
The Waller County Commissioners Court must follow the
procedures outlined in Transportation Code chapter 253 or 281 to
bring a private road located in Waller County into its county road
system before it can accept donations for maintaining that road under
Local Government Code section 81.032 or Transportation Code
section 252.2 14.
Very truly yours,
BARRY R. MCBEE
First Assistant Attorney General
DON R. WILLETT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Daniel C. Bradford
Assistant Attorney General, Opinion Committee