Untitled Texas Attorney General Opinion ( 2006 )

ATTORNEYGENERAL OF TEXAS
GREG ABBOTT
October 23,2006
The Honorable Tim Curry Opinion No. GA-0471
Tarrant County Criminal District Attorney
Justice Center Re:, Whether a county that wishes to abandon a
401 West Be&nap drainage easement or right-of-way should comply
Fort Worth, Texas 76196-0201 withTransportationCode section251.05@), Local
Government Code section 263.002, or Local
Government Code section272.001 (RQ-0462-GA)
Dear Mr. Curry:
You ask whether a county that wishes to abandon a drainage easement or right-of-way should
comply with Transportation Code section 251.058(b), Local Government Code section 263.002, or
Local Government Code section 272.00 1.’ Because two ofthese statutes provide specifically for the
disposition of a county road or highway right-of-way, we assume the drainage easements or rights-
of-way about which you ask are related to a road. We begin by laying out the three relevant statutes.
I. Relevant Statutes
A. Transportation Code section 25i.O58(b)
Transportation Code chapter 25 1 provides for “General County Authority Relating to Roads
and Bridges.” See generally TEX. TRANSP.CODEANN. ch. 251 (Vernon 1999 & Supp. 2006). A
county commissioners court may exercise general control over all roads and highways in the county.
See id. 3 25 1 .O16 (Vernon Supp. 2006). 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. 5 25 1.002 (Vernon
1999); see also id. 5 251.001(2) (defining “discontinue”). A commissioners court has express
authority to abandon a public road by unanimous vote. Id. § 251.051(a)(l), (b)(l); see also id.
~~~~~~~,~~~
~~~§25~l~;o57(a)~~(piovidingthata countyroad~is abandoned when it is entilosed). The term “abandon”
is defined as relinquishing “the public’s right of way in and use of [a] road.” Id. 3 251.001(l).
When a county abandons a public road, title to the real property reverts to the adjoining property
owner under section 251.058(b):
‘Letterfrom~HonorableTim Curry,TarrantCountyCriminalDistrictAttorney,to HonorableGregAbbott,
Attorney General of Texas (Mar. 6, 2006) (on tile with the Opinion Committee, also available at
http://w.oag.state.tx.us) [hereinafterRequestLetter].
The Honorable Tim Curry - Page 2 (GA-0471)
Title to a public road or portion of a public road that is
abandoned . to the center line of the road vests on the date the order is
signed by the county judge in the owner of the property that abuts the
portion of the road being. abandoned. . A copy of the order shall
be filed in the deed records of the county and serves as the official
instrument of conveyance from the county to the owner of the abutting
property.
Id. 5 251.058(b). In Attorney General Letter Opinion 94-053 this office construed section
251.058(b)‘s statutory predecessor to “automatically vest[]” title to the abandoned road in the
abutting property owner. Tex. Att’y Gen. LO-94-053, at 3-4.
B. Local Government Code section 263.002
Local Government Code section 263.002 is within chapter 263, subchapter A, which provides
generally for the sale or lease of real property by counties. See TEX. LOC. GOV’T CODEANN. ch. 263,
subch. A (Vernon 2005). Section 263.002 authorizes a county to sell or lease abandoned seawall or
highway right-of-way property:
If abandoned seawall or highway right-of-way property is no
longer needed for such a purpose, the county may sell or lease the
property only according to the following priorities:
(1) to an abutting or adjoining landowner;
(2) to the person who originally granted the right-of-
way to the county or the grantor’s heirs or assigns;
(3) exclusively for public use to the United St&es, this
state, or a municipality within the municipal boundaries of
which the property is located; or
(4) at public auction in accordance with Section
263.001.
~~A!.~
~3263.!%@);~see aWd.4 ?K!!? 1W@)~~(authorizing a commissiwers wurt t9~sell mlease
county-owned real property at a public auction, conducted after appropriate notice has been
published in a newspaper). But see Nueces Coun@ v. King, 350 S.W.2d 385,387-88 (Tex. Civ.
App.-San Antonio 1961, writ refd) (finding unconstitutional portions of this statute according
priority to certain persons). Before a commissioners court may sell or lease property to an abutting
or adjoining landowner or the original grantor under section 263.002, the commissioners court must
publish notice and appoint an appraiser to determine the property’s fair market value and fair lease
value. See TEX. Lot. GOV’T CODE ANN. 3 263.002(c) (Vernon 2005); see also id. § 263.001(b)
(requiring a commissioners court to publish notice of a’public auction to sell or lease county-owned
The Honorable Tim Curry - Page 3 (GA-0471)
real property in a newspaper). Then, before the county may accept an offer for the property, the
commissioners court must determine that the offer is reasonable. Id. 5 263.002(d).
C. Local Government Code section 272.001
Finally, section 272.001(b) of the Local Government Code applies to the sale or exchange
of certain types of real property:
(1) narrow strips of land, or land that because of its shape,
lack of access to public roads, or small area cannot be used
independently under its current zoning or under applicable
subdivision or other development control ordinances;
(2) streets or alleys, owned in fee or used by easement; [or]
(5) a real property interest conveyed to a governmental entity
that has the power of eminent domain.
Id. 5 272,OOl(b)(lH2), (5). A political subdivision, such as a county, may not sell or exchange
these real property interests “for less than the fair market value unless the conveyance, sale, or
exchange is with one or more abutting property owners who own the underlying fee simple.” Id.
§ 272.001(b); see also Jones v. Jefferson County Drainage Dist. No. 6, 139 S.W.2d 861,862 (Tex.
Civ. App.-Beaumont 1940, writ ret’d) (referring to counties as political subdivisions of the state).
II. Analysis
You are uncertain which of the three statutes applies in particular circumstances:
(1) When a county no longer needs a drainage easement, and
the owner of the property underlying the drainage easement desires
the county to issue a release of easement to clear title, is the drainage
easement considered a “portion of a public road” witbin the meaning
of section 251.058(b) of the Texas Transportation Code, such that
title~~aatomatically vestsin the underlying~fee o~wner~up~on~me~date the
order of abandonment is signed by the county judge?
(2) If the drainage easement is not considered a “portion of
a public road” within the meaning of section 251.058(b), then must
the county sell the interest in addition to formally abandoning it in
order for title to pass to the underlying fee owner? If so, may the
county sell the interest for less than fair market value to the
underlying fee owner pursuant to section 272.001(b) of the Local
The Honorable Tim Curry - Page 4 (GA-0471)
Government Code, or must the county follow the notice, appraisal,
and fair market value requirements of section 263.002(c) of the Local
Government Code?
(3) If a county desires to abandon a right-of-way [in] which
it owns an easement interest , when must the county follow the
notice, appraisal, and fair market value requirements of section
263.002 of the Local Government Code in order for title to pass
rather than title passing automatically pursuant to section 25 1.058 of
the Texas Transportation Code?
Request Letter, supra note 1, at 1-2. We assume, because you expressly cite section 272.00 1(b), that
the property may be classified as a real property interest conveyed to a county. Cf: TEX. LOC.GOV’T
CODE ANN. 5 261.001 (a) (Vernon 2005) (authorizing a county to “exercise the right of eminent
domain to condemn and acquire land, an easement in land, or a right-of-way” in certain
circumstances). And in responding to these questions, we note that a county commissioners court
may exercise only those powers that the state constitution and statutes confer upon it, either
explicitly or implicitly. See TEX. CONST.art. V, 3 18(b) (providing that a county commissioners
court “shall exercise such powers and jurisdiction over all county business, as is conferred by this
Constitution and the laws of the State”); City ofSan Antonio v. City ofBoerne, 111 S.W.3d 22,28
(Tex. 2003).
A. First question
Your first question, whether a drainage easement is a portion of a public road of which a
county automatically divests itself in accordance with section 251.058 of the Transportation Code,
suggests that if the easement is within that section, neither section 263.002 nor section 272.001 of
the Local Government Code applies. This suggestion is based on a 1994 attorney general letter
opinion,94-053,whichconcluded that,as betweenthesethree statutes,section251.058 prevails with
respect to the disposition of an abandoned county public road. See Request Letter, supra note 1,
at 5; Tex. Att’y Gen. LO-94-053, at 4. We consider this question in two parts: first, whether the
drainage easement is a “public road or portion of a public road” for purposes of section 25 1.058(b);
and second, assuming that the first issue is answered affirmatively, whether section 25 1.058(b)
applies rather than either of the other Local Government Code provisions. We reexamine Letter
Opinion 94-053 in the second part
1. Whether the phrase “public road or portion of a public road” in
Transportation Code section 251.058(b) encompasses drainage easements
Transportation Code section 25 1.058(b) expressly refers to a “public road or portion of
a public road” and does not expressly refer to a drainage easement. TEX. TRANSP.CODEANN.
5 25 1.058(b) (Vernon 1999). Chapter 25 l’s description of a public road is not helpful in resolving
this issue, defining a public road circularly as “[a] public road that has been laid out and
established according to law and that has not been discontinued.” Id. 8 251.002. Texas case law
TheHonorableTimCurry - Page 5 (GA-0471)
recognizes that a public road may incorporate more than a roadbed and that the grant of a right-of-
way for roadway purposes “includes the attendant public purposes of transportation of persons and
property, communication, and travel.” Harlingen Irrigation Dist. v. Caprock Commc ‘ns Corp., 49
S.W.3d 520,527 (Tex. App.-Corpus Christi 2001, pet. denied). Roads thus encompass “the use
of the subsurface for sewers, pipelines and other methods of transmission and communication that
serve the public interest.” HillFarm, Inc. v. Hill County, 436 S.W.2d 320,323 (Tex. 1969); see also
Grimes Y. Corpus Christi Transmission Co., 829 S.W.2d 335,337 (Tex. App.-Corpus Christi 1992,
writ denied) (“Easements in [county roads] remain broad enough to allow [a county] to do the
activities normally incident to maintaining those [roads]: laying sewer, gas and water pipelines.“).
Courts appear to determine on a case-by-case basis whether a drainage easement serves a
public road purpose and is therefore within a public road. Compare Harris County Flood Control
Dist. v. Shell Pipe Line Corp., 591 S.W.2d 798,799 (Tex. 1979), with Boucher v. Tex. Tpk. Auth.,
317 S.W.2d 594, 597-98 (Tex. Civ. App.-Texarkana 1958, no writ) (quoting State v. Hale, 146
S.W.2d 731, 736 (Tex. 1941)). For example, the Texas Supreme Court determined in 1979 that
enlarging a drainage ditch, located in a public road right-of-way but perpendicular to the roadbed,
to serve drainage district purposes “is not a public purpose for which the road was dedicated.”
Harris County Flood Control Dist., 591 S.W.2d at 799. The Court rejected the flood control
district’s claims that the ditch served a road and street purpose and that the ditch “is a mode of
transportation in that it carries storm water runoff.” Id. By contrast, in 1958 the Texarkana court
of civil appeals approved the Texas Turnpike Authority’s condemnation of perpetual drainage
easements under a statute prohibiting the Turnpike Authority from condemning “any land except
such as will be necessary for road and right-of-way purposes.“~ Boucher, 3 17 S.W.2d at 596 (quoting
former article 6674v, § 8, Revised Civil Statutes), id. at 598. The court stated that, at least in the
case of the drainage easements the Turnpike Authority was seeking to condemn, “[dlrainage of
surface waters affecting a road and right[-]oq-]way whether the flow of water be onto, alongside[,]
or off ofthe project is not a secondary consideration in its construction[,] and provisions for efficient
drainage is not additional to the normal, ordinary and usual uses to which land is put in road
construction.” Id. at 597. The court further cited the “drainage principle,” previously articulated by
the Texas Supreme Court in 1941 in a case that recognized the government’s power to create “a
servitude on land not actually taken or occupied by [a] public highway, for the purpose of
carrying off the water, the natural flow of which is changed or diverted by the construction of such
highway.” Id. at 598 (quoting Hale, 146 S.W.2d at 736).
It appears, therefore, that whether a particular drainage easement is part of a public road and
subject to section 25 1.058(a) ~of the Transportations Code depends on the purpose the ~easement
serves. Under the “drainage principle,” a drainage easement that serves the purpose of carrying
‘k~
water, “the natural flow of which is changed or diverted by the construction of’ the road, should be
‘considered part ofthe bundle ofrights the county acquires when it obtains a public road. Id. (quoting
Hale, 146 S.W.2d at 736); see also TEX. TRANSP.CODEANN. 8 254.005(a)-(b) (Vernon 1999)
(authorizing a commissioners court to construct ditches “on.or within the exterior lines of a public
road [with] the capacity to carry off into a natural waterway all surface water reasonably adjacent
that may collect in the ditch from natural causes”). On the other hand, a drainage easement that
serves other purposes is not part of the public road. Whether in any particular case a drainage
The Honorable Tim Curry - Page 6 (GA-0471)
easement is part of a public road for purposes of section 25 1.058(b) is a question of fact that cannot
be resolved in the opinion process. See also Tex. Att’y Gen. Op. No. GA-0156 (2004) at 10 (stating
that fact questions cannot be answered in the opinion process). Rather, the county commissioners
court must determine the issue in the first instance.
2. Whether Transportation Code section 251.058 applies to a drainage easement
rather than Local Government Code section 263.002 or272.001; reexamining
Letter Opinion 94-053
While you believe Transportation Code section 251.058(b) prevails over the other two
statutes with respect to the disposition of an abandoned “public road” as Letter Opinion 94-053
concludes, you request clarification of the letter opinion’s observation that section 263.002 of the
Local Government Code applies only to “highways.” See Tex. Att’y Gen. LO-94-053, at 4; Request
Letter, supra note 1, at 5-6. We thus reexamine the letter opinion here.
In the letter opinion, a county proposed to abandon a county public road. Tex. Att’y Gen.
LO-94-053, at 3; see TEx. TRANSP.CODE ANN. 5 251.051@)(l) (Vernon 1999). Under the opinion,
once the commissioners court unanimously voted to do so, “title to the portion of the road that abuts
an owner’s property, to the center line of the road, automatically vests in that owner” under
Transportation Code section 25 1.058(b). Tex. Att’y Gen. LO-94-053, at 3-4; see also TEX. TRANSP.
CODE ANN. § 251.058(b) (Vernon 1999). The county asked, however, whether either Local
Government Code chapter 263 or 272 provides the county with a right to receive,compensation from
the abutting property owner. See Tex. Att’y Gen. LO-94-053, at 4. The opinion notes that section
263.002 did not appear to apply because it specifically provides for the sale of highway property and
that the county roads at issue were not “highways for purposes of section 263.002.” Id. at 4 n.4.
And the opinion concludes that neither section 263.002 nor section 272.001 applies because section
251.058 “does not authorize a county to sell its interest in an abandoned road to an abutting land
owner.” Id. at 4. The conclusion appears to be based on a finding that section 251.058 controls as
the more specific provision relating to abandoned county public roads. See id.; see also TEX. GOV’T
CODEANN. 5 3 11.026(b) (Vernon 2005) (stating that a special or local provision prevails over an
irreconcilable general provision).
The letter opinion is incorrect insofar as it suggests that the term “highway” in Local
Government Code section 263.002 is different from a public road that is subject to Transportation
Code section 251.058(b). See Tex. Att’y Gen. LO-94-053, at 4 n.4. The term “highway right-of-
way” used in section 263.0@ disco broad~enough tomencompass~a county~ public road. See Request
Letter, supra note 1, at 5-6. Although we find no statute, case law, or attorney general opinion that
specifically construes the term “highway” for purposes of section 263.002 or its statutory
predecessor, the term is “generally. . held to mean ‘a way open to all the people without distinction
for passage and repassage at their pleasure.“’ S. K Greyhound Lines, Inc. v. R.R. Commh, 147
S.W.2d 318,320 (Tex. Civ. App.-Austin 1940, no writ) (quoting 29 C.J. p. 364); see also TEX.
GOV’T CODE ANN. 5 311.01 l(a) (Vernon 2005) (directing a court to construe statutory words
“according to common usage”). And construing section 545.301 of the Transportation Code
(which prohibits a motor-vehicle operator from leaving a vehicle “on the main traveled part of a
The Honorable Tim Curry - Page 7 (GA-0471)
highway”) in 1998, the Houston court of appeals indicated that the term “highway” does not exclude
a county road unless relevant case law or statutes expressly exclude county public roads. See Tex.
Dep’t ofPub. Saftyv. Guajardo, 970 S.W.2d 602,606-07(Tex. App.-Houston [14th Dist.] 1998,
no pet.). We find no indication in section 263.002’s plain language or in its legislative history
suggesting that the legislature intended to exclude county public roads from the term “highway.”
The provision pertaining to abandoned right-of-way property was adopted in 1953 and originally
read “Provided, however, that where abandoned right-of-way property is no longer needed for
highway or roadpurposes and the county decides to sell said right-of-way property, it shall be sold
with the following priorities. .” Act of May 5,1953,53d Leg., R.S., ch. 133, § 1,1953 Tex. Gen.
Laws 447,447 (emphasis added); cj Act of June 27,1949,5lst Leg., R.S., ch. 485, § 1, 1949 Tex.
Gen. Laws 904, 904-05 (aniending the predecessor of section 263.002 but not containing the
proviso). The phrase “highway or road,” which would definitely include a county public road, was
shortened to “highway” in 1973, w&en the legislature also amended the provision to insert references
to a seawall. See Act of May 28, 1973, 63d Leg., R.S., ch. 499, § 1, 1973 Tex. Gen. Laws 1329,
1329-30. Written materials .in the 1973 bill tile do note indicate the legislature’s intention
in shortening the phrase “highway or road” to “highway.” See HOUSE COMM. ON
INTERGOVERNMENTAL AFFAIRS,BILL ANALYSIS,Tex. H.B. 1455,63d Leg., R.S. (1973). Because
we find no clear evidence of a legislative intent to exclude county public roads from the term
“highway,” section 263.002 on its face applies to abandoned county public roads. See TEX. GOV’T
CODEANN. 5 3 11 .Ol l(a) (Vernon 2005) (directing areader to construe statutory words consistently
with common usage); GreyhoundLines, Inc., 147 S.W.2d at 320 (quoting 29 C.J. p. 364) (defining
the term “highway”).
For the reasons given in section 1I.A. 1 of this opinion, we believe the term “highway right-of-
way” encompasses a drainage easement that serves the “attendant public purposes of transportation
of persons land property, communication, and travel,” as well as a .drainage easement that carries
,water for road-related purposes. Haulingen Irrigation Dist., 49 S.W.3d at 527; see Boukher, 317
S.W.2d at 598 (quoting Hale, 146 S.W.2d at 736). Thus, contrary to Letter Opinion 94-053, we
conclude that section 263.002 appears to apply to the disposition of county public roads and their
affiliated drainage easements (if the commissioners court has made the appropriate factual
determinations).
Having determined that the term “highway right-of-way” in section 263.002 facially applies
to public roads to which section 251.058 of the Transportation Code also applies, and assuming that
the commissioners court has determined that the drainage easement is part of the public road, we
must consider whether Letter Opinion 94-053 corre&ly d.$emi~nes that Transportation Code section
251.058 prevails over Local Government Code sections 263.002 and 272.001.
First, we compare sections 263.002 and272.001 ofthe Local Government Code. This office,
using a general-specific analysis, determined in 1969 that, ti between the statutory predecessors of
these two statutes, the statutory predecessor of section 263.002 prevailed. See Tex. Att’y Gen. Op.
~No. M-524 (1969) at 3-4. The opinion pointed out that section 272.001 “is a general law [that]
pertains to the sale of land by all political subdivisions of the State.” Id. at 3. Chapter 263, by
contrast, is a special law that pertains to the sale or lease of property by counties only. See id.
TheHonorabieTimCurry - Page 8 (GA-0471)
Accordingly, the opinion determined that chapter 263 operates as an exception to the general
requirements of section 272.001.2 Id. at 34.
Next, we compare Transportation Code section 251.058 with Local Government Code
section 272.001. Applying the statutory analysis employed in the 1969 opinion, we believe that
Transportation Code section 25 1.058(b), which pertains specifically to abandoned public roads,
operates as an exception to section 272.001.
We are left, then, to determine whether Transportation Code section 25 1.058 prevails over
Local Government Code section263.002. The general versus specific analysis employed in the 1969
opinion is not helpful IF resolving whether section 25 1.058(b) prevails over section 263.002 because
both statutes apply to the disposition of abandoned county public roads. But “if statutes . are
irreconcilable, the statute latest in date of enactment prevails.” TEX. GOV’T CODEANN. 5 3 11.025(a)
(Vernon 2005).
We have determined in this opinion that section 263.002 of the Local Government Code
applies to the same roads that are subject to Transportation Code section 251.058 and other
provisions of chapter 251. See suprapp. 6-7. Additionally, to be applicable, both section 263.002
and section 25 1.058 require that public roads be abandoned. See TEX. LOC. GoV’T CODE ANN.
§ 263.002(a) (Vernon 2005); TEX. TRANSP. CODEANN. 5 251.058(b) (Vernon 1999); see also TEX.
TRANSP.CODEANK~~~~~.~~~;.~~~(~)(~),@)(~)(V emon 1999) (defining the term “public road”
and setting out a commissioners court’s general authority to open and close public roads). Under
section 25 1.058(b) of the Transportation Code, once a county abandons a public road or portion of
a public road, title automatically vests in the abutting property owners on the date the commissioners
court signs the appropriate order, which procedure directly conflicts with the county’s ability to sell
the property in accordance with Local Government Code section 263.002(a). Compare TEX.
TRANSP.CODEANN. 5 251.058(b) (Vernon 1999), with TEX. Lot. GOV’T CODE ANN. 5 263.002(b)
(Vernon 2005). Thus, for county easements that are public roads or portions thereof, Transportation
Code section 251.058 and Local Government Code section 263.002 are irreconcilable. Cf: Tex.
Att’y Gen. Op. No. GA-0411 (2006) at 2 (stating that statutes conflict irreconcilably if “it is
impossible to comply with both provisions at the same time”) (quoting Tex. Att’y Gen. Op. No.
GA-0369 (2005) at 4).
Having found the two statutes irreconcilable, we look at the dates of enactment of each. The
statutory predecessor to Transpo&tion Code section 25 1.058 was adopted in 1989. See Act of May
25, 1989,7lst Leg., R.S., ch. 428, §~2,~~!~98~9~Tex.~~$en.
Laws 1574,1574-75. The fEst reference to
“highwayor roadpurposes”inLoca1 Government Code section263.002’~ statutory predecessor was
inserted in 1953. See Act of May 5,1953,53d Leg., R.S., ch. 133,s 1,1953 Tex. Gen. Laws 447,
447. The phrase “highway right-of-way” was adopted in 1973. See Act of May 28,1973,63d Leg.,
2AttomeyGeneralOpinionM-524was issuedwithin monthsof section272.001’soriginaladoption.Its
constructionhasnot beenoverruledby a courtor by a subsequentopinionofthis office,andthelegislaturehasnot acted
to supersedeit. The opinion’sconsSruc.tion may,ttierefore,be considereda “contemporaneousconstruction”that “is
worthyof seriousconsiderationas an aid to interpretation,
particularlywheresuchconstructionhasbeensanctionedby
longacquiescence.”Sfanfordv.Butler,181S.W.2d269,273(Tex. 1944)(quoting39 TEX.JUR.5 125).
TheHonorableTimCuny - Page 9 (GA-0471)
R.S., ch. 499, 8 1, 1973 Tex. Gen. Laws 1329, 1329-30. Section 251.058 of the Transportation
Code, being the later enacted statute, thus prevails over section 263.002 of the Local Government
Code.
In sum, to answer your first question, we conclude, assuming that the commissioners court
has determined that the easement is included in the road, that title to the easement vests
automatically upon abandonment in the abutting landowner in accordance with section 25 1.058(b)
of the Transportation Code.
B. Second question
You next ask whether, if section 25 1.058(b) does not apply, the county must sell its interest
in the drainage easement under either section 263.002(c) or section 272.001(b) of the Local
Government Code “in addition to formally abandoning” the drainage easement. Request Letter,
supra note 1, at 2. Section 251.058(b) would not apply if the drainage easement is determined not
to be part of the public road. For fhe same reasons that the easement would not be part of the public
road, it would not be part of a highway right-of-way that is subject to section 263.002 of the Local
Government Code. In that event, the commissioners court would dispose of the easement under
section 272.001 of the Local Government Code unless the county determines that a statute we have
not considered here applies.
C. Third question
You ask finally whether a county that “desires to abandon a right-of-way to which it owns
an easement interest [] must. follow the notice, appraisal, and fair market value requirements
of section 263.002 of the Local Government Code . rather than title passing automatically” under
section 25 1.058 of the Transportation Code. Id. Because you specifically refer in this question to
a right-of-way in which the county “owns an easement interest,” we assume you use the term to refer
generally to a right to access or pass over a tract of land.) See id.; see also Tex. Elec. Ry. Co. v.
Neale, 252 S.W.2d 451,454 (Tex. 1952) (noting that “[flhe term ‘right of way’ sometimes is
used to describe a right belonging to a party [to pass] over any tract; and it is also used to
describe that strip of land” on which a roadbed is constructed); accord Lakeside Launches, Inc. v.
Austin Yacht Club, Inc., 750 S.W.2d868,871 (Tex. App.-Austin 1988,writdenied). Also, because
you do not refer to the right-of-way as a drainage easement, it does not appear that your third
question relates to a drainage easement. See Request Letter, supra note 1, at 2.
The analysis we have already provided regarding whether a public road encompasses a
drainage easement applies to the question of whether a right-of-way is “public road or portion of a
public road” subject to disposition under section25 1.058(b) of the Transportation Code. A right-of-
way that serves the public purposes of transporting persons and property, communication, and travel
must be disposed of in accordance with section 251.058(b), not section 263.002 of the Local
‘Wedo not considerwhethersection263.002ofthe LocalGovernmentCodeappliesto an abandonedseawall
or to a highwaythat the countyownsin fee simple.
The Honorable Tim Curry - Page 10 (GA-0471)
Government Code. You do not inform us whether this right-of-way serves the public purposes of
transportation of persons and property, communication, and travel, and this office, because it cannot
resolve fact questions, cannot determine whether a particular right-of-way serves an appropriate
public purpose. See Tex. Att’y Gen. Op. No. GA-0334 (2005) at 1. If the right-of-way does not
serve the purposes of transportation, communication, andtravel, it must be disposed of in accordance
with section 272.001 unless the county finds that a statute not considered here applies.
The Honorable Tim Curry - Page 11 (GA-0471)
SUMMARY
For purposes of Transportation Code section 251.058(b),
which automatically vests title to an abandoned public road in the
abutting landowner, the phrase “public road” encompasses the
roadway as well as (1) right-of-way that serves attendant public
purposes of transportation of persons and property, communication,
and travel, and (2) a drainage easement created to carry off water, the
natural flow of which the roadway changed or diverted. Whether in
a particular case a property interest is part of a public road for
purposes of section 251.058@) is a question of fact that must be
resolved by the commissioners court inthe first instance. Abandoned
public road that is subject to Transportation Code section25 1.058(b)
may not be disposed of in accordance with section 263.002 or
272.001 of the Local Government Code.
Easements or rights-of-way that are not part of a public road
under section 25 1.058(b) are likewise not highway rights-of-way that
are subject to disposition under Local Government Code section
263.002. Such property interests must be disposed of under section
272.001 ‘unless the county determines that a statute not considered
here applies.
To the extent Letter Opinion 94-053 suggests that Local
Government Code section 263.002 applies only to roads labeled as
highways, not to county public roads generally, it is incorrect. See
Tex. Att’y Gen. LO-94-053, at 4 n.4.
Very truly yours,
GREG A OTT
A- Attorney G al of Texas
KENT C. SULLIVAN
First Assistant Attorney General
ELLEN L. WITT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee