Untitled Texas Attorney General Opinion ( 2006 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
September l&2006
The Honorable Jeff Wentworth Opinion No. GA-0459
Chair, Committee on Jurisprudence
Texas State Senate Re: Whether a home-rule city is required to
Post Office Box 12068 improve and maintain an unimproved, dedicated
Austin, Texas 7871 l-2068 public right-of-way withinthe city limits so that the
city may provide municipal services to adjacent
property annexed by the city (RQ-0454-GA)
Dear Senator Wentworth
You ask whether a home-rule city is required to improve and maintain an unimproved,
dedicated public right-of-way within the city limits so that the city may provide municipal services
to adjacent property annexed by the city.’
You inform us that in 2000, the City of Austin (the “City”) approved a subdivision plat that
included both property within the City limits and within the City’s extraterritorial jurisdiction
(“ETJ”). See Request Letter, supra note 1, at 1. The City required the developer to dedicate two
public rights- of-way on the private land within the City so that adjacent tracts in the ETJ would have
direct access to a public street. See id But the City did not require the developer to improve the
unpaved, caiiche rights-of-way. See id. at 1-2. In2001, the City annexed the adjacent property from
the ETJ. See id. at 2. The City provides solid waste and electric utility services to the annexed area
using the rights-of-way, “but residents fear that City fire, EMS and police personnel may not be able
to adequately respond because one right of way is not a named street on the official city map and
because the trucks and necessary equipment may be unable to traverse the unimproved road.” Id
Finally, you note, “[tlhe City has refused to accept the right of ways for operation and maintenance
and will not make improvements despite the fact it already provides limited services to the annexed
area.” Id.
“Dedication” is the setting apart of private land for public use and may be effected statutorily
or at common law. Priolo v. city ofDallas, 257 S.W.2d 947,953 n.2 (Tex. Civ. App.-Dallas 1953,
writ ref d n.r,e) (citing Poindexter v. Schaffner, 162 SW. 22,23 (Tex. Civ. App.-Dallas 1913, no
‘SeeLetter from HonorableJeff Wentworth,Chair, Committeeon Jurisprudence,TexasState Senate,to
HonorableGregAbbott,AttorneyGeneralof Texas(Feb. 16, 2006) (on file with the Opinion Committee,aim
available af http://w.oag.state.tx.us) [hereinafter
RequestLetter].
The Honorable Jeff Wentworth - Page 2 (GA-0459)
writ)). Statutory dedication of a street is controlled by the terms ofthe statute. See id. Chapter 212
ofthe Local Government Code, which regulates property development in and outside a city, governs
dedication of streets. See generally TEX. LOC. GOV'T CODE ANN. ch. 212 (Vernon 1999 & Supp.
2006); see also Priolo, 257 S.W.2d at 953-54 (suggesting that the statutory provisions are exclusive
as to the elements of dedication they address). In general, a landowner who divides a tract of land
that is located within the limits of a city or within the extraterritorial jurisdiction of a city into two
or more parts must prepare a plat to “lay out a subdivision including . other lots, or to lay out
streets, or other parts of the tract intended to be dedicated to public use or for the use of
purchasers or owners of lots fronting on or adjacent to the streets, alleys.” TEE. LOC. GOV’T CODE
ANN. 5 212.004(a) (Vernon 1999). The plat must be “tiled and recorded with the county clerk of the
county in which the tract is located,” and approved by the city. See id. §§ 212.004(d), ,005.
“Acceptance” of a dedicated street obligates a city to maintain and improve the street. Id.
5 212.048. But a city’s approval of a plat alone does not constitute such acceptance. See id.; see
also Miller v. Elliott, 94 S.W.3d 38,45 (Tex. App.-Tyler 2002, pet. denied) (“Dedication is amere
offer and the tiling does not constitute an acceptance of the dedication.“). Section 212.048 of the
Local Government provides that:
The approval of a development plat is not considered an
acceptance of any proposed dedication for public use or use by
persons other than the owner of the property covered by the plat and
does not impose on the municipality any duty regarding maintenance
or improvement of any purportedly dedicated parts until the
municipality’s governing body makes an actual appropriation of the
dedicatedparts by formal acceptance, entry, use, or improvement.
TEX. Lot. GOV’T CODE ANN. 5 212.048 (Vernon 1999) (emphasis added); see also City of Waco v.
Fentkr, 132 S.W.2d 636, 637 (Tex. Civ. App.-Waco 1939, writ refd) (“In order to render a
municipality liable for negligence in failing to keep a street . in repair, the evidence must show
that such street has been dedicated by the owner and accepted by the municipality as a public
way.“). Thus under section 212.048, a city has no obligation to maintain or improve a dedicated
street unless the city formally accepts, enters, uses, or improves the dedicated street.
Chapter 43 of the Local Government Code governs municipal annexation and requires a city
to provide.certain municipal services to an annexed area. See TEX. LOC. GOV’T CODE ANN. ch. 43
(Vernon 1999 & Supp. 2006). An annexing city must “complete a service plan that provides for the
extension of full municipal services to the area to be annexed.” Id 5 43.056(a) (Vernon Supp.
2006); see also id. 5 43.056(g) (delineating the level of services a city must provide depending on
the level of services available in the annexed area before annexation). The city must “provide the
services by any of the methods by which it extends the services to any other area of the
municipality.” Id. 5 43.056(a). And the “service plan must include a program under which the
municipality will provide full municipal services in the annexed area” within specified time frames,
Id. 5 43.056(b). But if the city provides particular services listed in the statute within the city’s
corporate boundaries, it must provide those services to the annexed area on the effective date of the
The Honorable Jeff Wentworth - Page 3 (GA-0459)
annexation. See id. Under section 43.056(b), the listed services include police and fre protection,
emergency medical services, and “operation and maintenance of roads and streets, including road
and street lighting.” Id. 5 43.056(b)(lH3), (6). Additionally, under section43,056(e) “[tlhe service
plan must include a program under which the municipality will initiate after the~effective date
of the annexation the acquisition or construction of capital improvements necessary for providing
municipal services adequate to serve the area.” Id. § 43.056(e).
Section 43.056(b), which requires a city that “operates and maintains” roads and streets in
its corporate boundaries to operate and maintain roads and streets in the annexed area, does not apply
here because the rights-of-way at issue are not in the annexed area. See Request Letter, supra note
1, at 1; see also RepubJicBankDallas, MA. v. Znterkal, Inc., 691 S.W.2d 605,60&08 (Tex. 1985)
(stating that to give effect to legislative intent, we must construe a statute according to its plain
language). But section 43.056(e) plainly requires an mexing city to acquire or construct capital
improvements necesssuy to provide municipal services to the annexed area and does not limit
the location of the capital improvements to the annexed area. See TEX. LOC. GOV’TCODEANN.
§ 43.056(e) (Vernon 1999); see also RepublicBank Dallas, N.A., 691 S.W.2d at 6OMF.3.
In sum, a city is required to (1) improve and maintain an unimproved dedicated public right-
of-way within the city limits if the city has accepted the dedicated right-of-way; or (2) improve such
right-of-way if the improvement is necessary to provide adequate municipal services to adjacent
annexed property.
But whether in a particular instance the city has accepted the dedicated right-of-way is a
question of fact rather than one of law. See, e.g., City of Waco, 132 S.W.2d at 638 (“Whether the
city had recognized and used the alley as a public way was purely a question of fact and not one of
law.“); Poindexter, 162 S.W. at 24 (stating that “proof of acceptance was necessary” in the absence
of formal city acceptance and “whatever evidence there may be of an implied acceptance, it is of
such a nature as to raise an issue of fact in regard thereto”). We understand that the ~City has not
formally accepted the dedicated rights-of-way or improved them. See Letter from Jacqueline Waters
to Honorable Greg Abbott, Attorney General of Texas (Apr. 4,2006) at 2 (on tile with the Opinion
Committee)? You state that the City has used the rights-of-way to provide solid waste disposal and
utility services, see Request Letter, supra note 1, at 2, but such evidence simply raises an issue of
fact regarding the city’s acceptance. See PoindexteL, 162 S.W. at 24; see also Roberts v. Bailey, 748
S.W.2d 577,578 (Tex. App.-Beaumont 1988, no writ) (concludingthat city had not accepted street
that did not meet city’s specifications and which the city had accepted only for drainage easement)?
We cannot determine whether the city h&s, by~use or entry, accepted the rights-of-way because this
*TheCity’sCodeofOrdiiancesprohibitsacceptingdedicatedstreetsthatarenot”surfaced,curbed,andguttered
withthe requiredutilitiesanddrainagefacilitiesinstalled.”THECODE OFTHECITYOFAUSTIN, TEXAS,TITLE 25.LAND
DEVELOPMENT $25-4-38(D)(2006),available af http:/iwww.amlegal.com/austin_txi (lastvisitedSept.5,2006). The
Codealsoprovidesthat “[tlheCitymayacceptan offereddedicationonly by the actionof an authorizedofiicial”and
that“[elxceptas providedin a fiscalsecurityagreement[providedby the developer],an officeror employeeofthe City
maynot enter,use,or improvea streetunlessthe streethasbeenacceptedby the City.”Id. 9 25-4-38(B),(E).
‘See also id.
The Honorable Jeff Wentworth - Page 4 (GA-0459)
o&e does not resolve questions of fact. See, e.g., Tex. Att’y Gen. Op. Nos. GA-0139 (2004) at 5
(stating that attorney general opinion will not answer whether county has declared a private street
to be a public street, which is a question of fact); GA-0003 (2002) at 1 (stating that the opinion
process does not determine questions of fact).
Similarly,~whether the improvement and maintenance of the rights-of-way are necessary to
provide adequate municipal services to the annexed area is an unresolved question of fact. You
inform us that the annexed area residents tire concerned that City fire, police, and emergency medical
services may not be able to adequately respond and the necessary vehicles and equipment may not
be able to use the unpaved rights-of-way. See Request Letter, supra note 1, at 2. The City, however,
asserts that improvement of the rights-of-way is not necessaty to provide City services, and the City
is providing comparable services to the annexed area.4 The inabiiity of fue, police, and emergency
medical services to adequately respond because of the existing condition of the rights-of-way and
the absence of another access street or road to the annexed property are disputed questions of fact
that we cannot resolve in the opinion process. See, e.g., Tex. Att’y Gen. Op. Nos. GA-0139 (2004)
at 5, GA-0003 (2002) at 1.
‘SeeLetterf?omDavidAlanSmith,CityAttorney,CityofAustin,to HonorableGregAbbott,AttorneyGeneral
of Texasat l-3 (Apr.21,2006)(on file withthe OpinionCommittee).
The Honorable Jeff Wentworth - Page 5 (GA-0459)
SUMMARY
A city is required to (1) improve and maintain an unimproved,
dedicated public right-of-way within the city limits if the city has
accepted the dedicated right-of-way; or (2) improve such right-of-way
if the improvement is necessary to provide adequate municipal
services to adjacent annexed property. Whether a city has accepted
the dedicated rights-of-way or whether the improvement is necessary
to provide adequate municipal services to the annexed property are
questions of fact that cannot be resolved in an attorney general
opinion.
RENT C. SULLIVAN
First Assistant Attorney General
ELLEN L. WITT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Sheela Rai
Assistant Attorney General, Opinion Committee