Untitled Texas Attorney General Opinion ( 2016 )

KEN PAXTON
ATTORNEY GENERAL OF TEXAS
March 28, 2016
The Honorable Jim Keffer Opinion No. KP-0075
Chair, Committee on Natural Resources
Texas House of Representatives Re: Whether a county that has accepted a
Post Office Box 2910 public dedication of a right-of-way is
Austin, Texas 78768 obligated to maintain the sidewalks in that
right-of-way (RQ-0061°-KP)
Dear Representative Keffer:
On behalf of several municipal utility districts, you ask whether a county that has accepted
a public dedication of a right-of-way is obligated to maintain the sidewalks in that right-of-way. 1
A brief submitted with your request provides an illustrative example about a Williamson County
(the "County") neighborhood in one such municipal utility district and provides the following
information: The homes in the neighborhood are accessed by several public roads, including Dallas
Drive, a major thoroughfare with sidewalks located within the right-of-way. See Letter Brief at 1.
"Following the developer's construction of the rights-of-way and other infrastructure in [the
neighborhood], the County accepted the dedicated rights-of-way through its maintenance of Dallas
Drive and other rights-of-way in the subdivision." Id. at 1-2. Recently the County enacted a
sidewalk maintenance and repair policy "to address its maintenance and repair of sidewalks
throughout the County" and the policy did not include Dallas Drive. Id. at 2. The County's policy
provides that sidewalks not included in the policy that are located in unincorporated areas of the
County are to be maintained by the owner of the adjacent property. See id. The neighborhood has
no mandatory homeowners association through which to levy funds for sidewalk maintenance.
See id. And the municipal utility district containing the neighborhood "has never assumed the
responsibility or obligation for maintaining public rights-of-way, including sidewalks." Id. Thus,
"the effect of the County's attempt to disclaim maintenance of public sidewalks is to impose that
burden on each individual who owns property adjacent to a sidewalk." Id. In this context, you
ask "if a county has accepted the public dedication of a right-of-way that includes the sidewalks
does the county's maintenance obligations of a subdivision's rights-of-way extend to the adjacent
sidewalks and if so can the county at a later date divest itself of the obligation to maintain the
sidewalks?" Request Letter at 1.
1
See Letter from Honorable Jim Keffer, Chair, House Comm. on Nat. Res., to Honorable Ken Paxton, Tex.
Att'y Gen. at 1 (Oct. 21, 2015), and attached Letter Brief from Kevin Flahive, Armbrust & Brown, PLLC, to
Honorable Jim Keffer (Oct. 15, 2015), https://www.texasattomeygeneral.gov/opinion/requests-for-opinion-rqs
("Request Letter" and "Letter Brief," respectively).
The Honorable Jim Keffer - Page 2 (KP-0075)
A county has only the authority that is expressly granted by the Texas Constitution or
statutes or that which is necessarily implied therefrom. See City of San Antonio v. City of Boerne,
111 S.W.3d 22, 28 (Tex. 2003). And with respect to road maintenance, a county is statutorily
authorized to maintain only public roads. See TEX. TRANSP. CODE§ 251.003(a)(l). A public road
is a "public road or highway that has been laid out and established according to law and that has
not been discontinued." Id § 251.002. But "not all public roads are part of the system of roads
maintained by the county." Tex. Att'y Gen. Op. No. GA-0659 (2008) at 3. "Once a public road
has been established as a county road, the county has a general duty to maintain it." Id A county
road is a public road that the commissioners court has accepted into the county's system of roads.
Id at 2. And this office has recognized that a county road may include sidewalks. See Tex. Att'y
Gen. Op. No. GA-1013 (2013) at 2 ("In addressing a commissioners court's authority over county
roads, we also note that a road is not limited to the area traveled, but includes the whole width of
the public right-of-way."); see generally State v. NICO-WFI, LL.C., 384 S.W.3d 818, 821 (Tex.
2012) (recognizing, with respect to a state highway, that the right-of-way of a street dedicated to
the public "includes sidewalks ... , which are a part of the street itself') (quotation marks omitted).
Here, the brief states that "the County accepted the dedicated rights-of-way through its
maintenance of Dallas Drive and other rights-of-way in the subdivision." Letter Brief at 2.
Acceptance may be express pursuant to a vote by a commissioners court or it may be implied such
as "where a county makes repairs upon the street, or plats it on official maps." Tex. Att'y Gen.
Op. No. JC-0503 (2002) at 4. And while a county has a ministerial duty to approve a plat and
authorize its filing under chapter 232 of the Local Government Code, the mere approval of a plat
is not sufficient to render a dedicated public road into a county road. See Tex. Att'y Gen. Op. No.
GA-0594 (2008) at 3 ("A commissioners court's approval of a plat allows it to be filed in the
county records, but it does not convert private roads represented on the plat into county roads or
impose on the county a duty to maintain them."); see also TEX. Loe. Gov'T CODE§§ 232.001-
.108 (governing county subdivision regulation). Instead, acceptance of the dedication by a county
is required. See generally Tex. Att'y Gen. Op. No. JC-0503 (2002) at 4. Though you suggest that
the County has at least impliedly accepted the dedication of these roads into the county road
system, the question "whether and to what extent a public right-of-way has been acquired by
dedication ... on a given road is a fact question that cannot be resolved" in an attorney general
opinion. Tex. Att'y Gen. Op. No. GA-0693 (2009) at 2; see also Tex. Att'y Gen. Op. No. JM-1241
(1990) at 1-2. Thus, we cannot opine on what the County's particular maintenance obligations
are with respect to Dallas Drive. Whether the dedicated right-of-way here was accepted by the
County and whether that acceptance includes the sidewalks located in the right-of-way are fact
questions beyond the purview of an attorney general opinion. See Tex. Att'y Gen. Op. No. GA-
0693 (2009) at 1-2.
Yet, because we cannot determine the County's maintenance obligations with respect to
Dallas Drive, we also cannot definitively advise you on how the County might divest itself of any
maintenance obligations it may have. At most we can point you to Transportation Code section
251.051, which sets out the methods by which a county may divest itself of its county roads,
including presumably any maintenance obligations accompanying those county roads. See TEX.
TRANSP. CODE § 251.051. To the extent any of the actions in section 251.051 may be applicable
to Dallas Drive, the County may utilize them upon compliance with the requirements of the statute.
The Honorable Jim Keffer - Page 3 (KP-0075)
SUMMARY
A county road may include the sidewalks in the right-of-way.
Whether a county has accepted a public dedication of a right-of:-way
such that the sidewalks are within the county's maintenance
obligations is a question beyond the purview of an attorney general
opm1on.
To the extent any of the actions in Transportation Code
section 251.051 may be applicable to Dallas Drive, Williamson
County may utilize them upon compliance with the requirements of
the statute.
Very truly yours,
~?~
KEN PAXTON
Attorney General of Texas
JEFFREY C. MATEER
First Assistant Attorney General
BRANTLEY STARR
Deputy Attorney General for Legal Counsel
VIRGINIA K. HOELSCHER
Chair, Opinion Committee
CHARLOTTE M. HARPER
Assistant Attorney General, Opinion Committee