Untitled Texas Attorney General Opinion ( 2007 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
February 1,2007
The Honorable Mark F. Pratt Opinion No. GA-05 13
Hill County Attorney
Post Office Box 253 Re: Whether a county may improve a
Hillsboro, Texas 76645 subdivision road under the authority of a statute
other than Transportation Code chapter 253
(RQ-0521-GA)
Dear Mr. Pratt:
You ask two questions:
1. [Wlhether Chapter 253 of the Texas Transportation Code is the
exclusive means whereby a county may improve a subdivision
roadway although the public has already acquired an interest in the
roads and streets.
2. [Wlhether a public road acquired through dedication, once
accepted, automatically is included into the county’s road
maintenance system where maintenance of such roads is mandatory,
even if the Commissioners Court has expressly rejected the duty to
maintain the roads.’
Because the answer to your first question depends on the answer to your second one, we will answer
your second question first.
We begin with a review of the applicable law. We note that Hill County has a population
that is less than SO,OOO.*As such, Texas Transportation Code chapter 281 governs Hill County’s
authority to acquire a public interest in a private road. See TEx. TRANSP. CODE ANN.
$5 281 .OOl-,007 (Vernon 1999) (“Acquisition of Public Interest in Private Road by Certain
Counties”); id. 5 281.001 (“This chapter applies only to a county with a population of 50,000 or
‘Letterfrom Honorable Mark F. Pratt, Hill County Attorney, to Honorable Greg Abbott, Attorney General of
Texas (Aug. 9, 2006) (on file with the Opinion Committee, also available af http://~.oag.state.tx.us) [hereinafter
Request Letter]; see also Brief on behalf of Hill County, at 1 (attached to Request Letter) [hereinafter Briefl.
?!?ee UNITED STATES CENSUS BUREAU, U.S. DEPT. OF COMMERCE,2000 CENSUS OF POPULATION:TEXAS
QUICKFACTS (population ofHill County is 35,424), availnble
af http://quickfacts.census.gov/qfd/states/48/48217.htmi
(last visited Jan. 29,2007).
The Honorable Mark F. Pratt - Page 2 (GA-0513)
less.“). Transportation Code section 281.002 permits a county to acquire a public interest in a
private road by, among other things, dedication. Id. 5 28 1.002(3); see also TEX.Lot. GoV’T CODE
ANN. $5 232.001-,010 (Vemon2005) (p rocedural requirements for platting subdivisions, including
procedural requirements for dedicating subdivision roads to the public). Dedication, however, is
effective for chapter 28 l’s purposes only if it is “an explicit voluntary grant of the use of a private
road for public purposes [that is] communicated in writing to the commissioners court ofthe county
in which the real property is located.” TEX.TRANSP. CODE ANN. 5 281.003(a) (Vernon 1999).
It has long been established that “dedication is a mere offer” and a commissioners court’s
approval of a plat filing that contains a dedication does not constitute an acceptance of the
dedication. Langford v. Kruft, 498 S.W.2d 42, 49 (Tex. Civ. App.-Beaumont 1973, writ ref d
n.r.e.; writ dism’d w.o.j?); see also TEX.LOC.GOV'T CODE ANN. 5 232.002(Vernon 2005)
(requiring county approval of plats). Once aroad dedicated to the public is accepted, either expressly
by the county or by the public on the county’s behalf, it is a public road. See Stein v. Killough, 53
S.W.3d 36,42 n.2 (Tex. App.-San Antonio 2001, no pet.). However, until a county, through its
commissioners court, expressly accepts a public interest in a road dedicated in a plat, that road is not
included in the county’s road maintenance system, even though the road may have already become
public by the public’s acceptance of it. See Miller v. Elliott, 94 S.W.3d 38,45 (Tex. App.-Tyler
2002, pet denied); Comm’rs Ct. v. Frank Jester Dev. Co., 199 S.W.2d 1004, 1006-07 (Tex. Civ.
App.-Dallas 1947, writ ref d n.r.e); Tex. Att’y Gen. Op. No. GA-0139 (2004) at 4.
You inform us that in March 1983 the Hill County Commissioners Court approved by
resolution a plat establishing the Tall Timbers Estates subdivision; the plat included a public
dedication of the subdivision’s streets and roads. See Brief; supra note 1, at 1. Relevant here, the
Hill County resolution states that the dedication and plat are accepted, but “such acceptance shall
impose no duty upon the County concerning maintenance or improvement of the~streets and roads”
described in the plat. Id. And, indeed, you note that for some period of time, the roads in Tall
Timber Estates were not maintained by the county, until about ten years ago when the commissioner
of the precinct containing the subdivision started to maintain the roadways. See id. Based on this
information, we understand you to ask whether, despite Hill County’s expressed refusal to maintain
or improve the roads dedicated in the plat, the county has nonetheless accepted the public roads into
its county road system. See id.; see also Request Letter, supra note 1, at 1.
A substantially similar question has been answered by a Texas appellate court. In Kunejke
v. Calhoun County, the Thirteenth Court of Appeals determined that a county’s failure or refusal to
maintain subdivision roads that had not been constructed but that were dedicated to the public in a
plat is still an acceptance by the county of that road into the county’s road maintenance system. See
Kunejke v. Calhoun County, No. 13-05-006-CV, 2006 WL 1553261, at *34 (Tex. App.-Corpus
Christi 2006, no pet.) (mem. op.)! In that case the Calhoun County Commissioners Court stated in
'Twocauses were reviewed in a single opinion
“The dedication and plats underlying Kunefke were submitted to this office and formed the basis of questions
answered in an attorney general opinion issued in 2004. See Tex. Att’y Gen. Op. No. CA-0139 (2004). This ofice
(continued...)
The Honorable hark F. Pratt - Page 3 (GA-0513)
writing that it accepted a subdivision plat dedicating its “streets and drainage easements shown
thereon forever,” but that the “streets are not being accepted for county maintenance until they are
constructed in accordance with County regulations.” Id. at * 1. As an explanation for this qualified
acceptance, a Calhoun County Commissioner explained:
It is the common practice of the Commissioner’s Court to accept the
right of ways for public use, based upon the scope of their authority,
but not for maintenance if there have been no roads constructed upon
the right of ways at the time of the dedication and acceptance. It is
impracticable and impossible for the County to accept these rights of
ways for maintenance, when there have been no roads constructed on
them at the time of acceptance, especially if the roads may not be
constructed for a period of~time.
Id. at * 3. Ultimately, the court held that, though such failure or refusal to maintain roads may have
political, or even legal, consequences, there is no legal authority that undermines the nature of such
qualified acceptance. See id. at *4 (comparing Hays County v. Alexander, 640 S.W.2d 73,78-79
(Tex. App.-Austin 1982, no writ)).
While Kunefke is a memorandum opinion and thus would presumably be less instructive,5
we believe it is useful in predicting how a court would answer your questions today. Moreover, we
believe this opinion accurately interprets current law and is directly applicable to your question.
Therefore, in answer to your second question, where a county accepts in writing a public road
dedication made in a subdivision plat, such acceptance is effective to include the roads into the
county road maintenance system, even though the county also refuses at the same time to maintain
or improve the roads.
We understand you to also ask whether Transportation Code chapter 253 is applicable in a
situation where a county has acquired a public interest in a private road. See Request Letter, supra
note 1, at 1; Brief, supra note 1, at 1. Transportation Code chapter 253 governs a county’s authority
to improve subdivision roads in which the county has not acquired a public interest-that is,
subdivision roads not already in the county road maintenance system. See generally TEX: TRANSP.
CODEANN. 5s 253.001-,011 (Vernon 1999 & Supp. 2006). Here, Hill County has, already acquired
a public interest in the roads in question by complying with Transportation Code chapter 28 1, which
determined that, based on the assumption that the commissioners court had not accepted the dedicated roads in question,
the county had no authority to maintain the roads. See id. at 4. Attorney general opinions are legal opinions that may
be based an an assumed set of facts, but they do not find facts or resolve issues of fact. See Tex. Att’y Gen. Op. No. GA-
0003 (2002) at 1. As such, we affirm the legal conclusions in GA-O 139 though some conflict with the legal conclusions
in Kunefke because each considered a different fact scenario. Compare Kunefke, 2006WL 1553261, at *34 (finding
ackptance of road dedication), wirh Tex. Att’y Gen. Op. No. GA-0139 (2002) at 3 (assuming no acceptance ofroad
dedication).
‘See TEX. R. APP. P. 41.2,47.4.
The Honorable Mark F. Pratt - Page 4 (GA-0513)
for counties with a population less than 50,000 serves as an alternative method to chapter 253. See
Tex. Att’y Gen. Op. No. GA-0139 (2004) at 7 (concluding that chapters 253 and 281 are
cumulative);see also TEX.TRANSP.CODEANN. $3 253.011 (Vernon 1999) (“Aroadimprovedunder
this chapter is a county road [that] [t]he county shall maintain . .“); 28 1.002 (“A county may
acquire a public interest in a private road by dedication .“). Thus, in answer to your fast
question, Transportation Code chapter 253 is not applicable in this instance.
The Honorable Mark F. Pratt - Page 5 (GA-0513)
SUMMARY
Where a county accepts in writing a public road dedication
made in a subdivision plat in conformity with Transportation Code
chapter 28 1, such acceptance is effective to make the roads county
roads, even though the county also refuses at the same time to
maintain or improve the roads. Thus, where Hill County has already
acquired a public interest in a subdivision road by dedication, the
county neednot comply withTransportation Code chapter 253, which
is an alternative to chapter 28 1 and is applicable only in the situation
in which a county has not acquired a public interest in a subdivision
road.
Attorney General of Texas
KENT C. SULLIVAN
First Assistant Attorney General
ELLEN L. WITT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Daniel C. Bradford
Assistant Attorney General, Opinion Committee