Untitled Texas Attorney General Opinion ( 2003 )


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  •                             ATTORNEY GENERAL OF TEXAS
    GREG       ABBOTT
    December    12,2003
    The Honorable Kenneth Armbrister                    Opinion No. GA-0128
    Chair, Natural Resources Committee
    Texas State Senate                                  Re: Responsibility and liability for maintenance
    P.O. Box 12068                                      of River Road in Refugio County, Texas
    Austin, Texas 78’711                                (RQ-0068-GA)
    Dear Senator Armbrister:
    You ask who is responsible for maintenance of a public road, and who may be liable for any
    accident proximately    caused by the road’s condition. Your question was prompted by
    correspondence from a citizen concerned about the maintenance of River Road in Remgio County,
    Texas.
    In 2000 this office, representing the Texas Department of Parks and Wildlife, which owns
    property on the road, sought a declaratory judgment that River Road was a public road. See State
    v. Landgraf, No. 2000-7-9044 (24th Dist. Ct., Refugio County, Tex. Apr. 2,200l) (Final Judgment).
    According to the state’s pleadings, River Road is a five-mile long gravel road that parallels the
    Guadalupe River and ultimately crosses into Calhoun County. The State of Texas, as plaintiff,
    asserted in its original petition that:
    River Road has been used openly and continuously by the public for
    at least seventy years and no permission has been sought or obtained.
    The State is unaware of any record of River Road having been
    formally dedicated to the public by a written instrument. However,
    Refugio County maintained River Road continuously for as long as
    local residents can remember until 1999, when Refugio County
    discontinued maintenance on River Road.
    
    Id. (Plaintiffs Original
    Petition at 3). The court declared that River Road “is a public road, in which
    the public has obtained an easement by prescriptive use and by implied dedication,” and enjoined
    the defendant from “interfering with the use of River Road as a public way.” 
    Id. (Final Judgment).
    The Honorable Kenneth Armbrister            - Page 2        (GA-0128)
    You first ask “who is responsible for maintenance . . . of the county road.“’ The
    correspondence enclosed with your letter notes that “[slince January, 1999, the landowners [and]
    those of us who have property [and] cattle operations on this road have contributed to the
    maintenance. This includes adding road material, grading [and] cattle guard repair.“*
    We believe, based on the judgment in the Landgraf case and the unbroken history of county
    maintenance until 1999 reflected in the record, that a court would find that River Road is a county
    road. The judgment in the Landgraf case declares that River Road is public by virtue of implied
    dedication and prescriptive easement. Moreover, it appears that the county has impliedly accepted
    that dedication by maintaining the road since the 1920s. 
    Id. (Plaintiffs Original
    Petition at 3). See,
    e.g., Lindner v. Hill, 
    691 S.W.2d 590
    , 592 (Tex. 1985) (fact that owner had allowed county to
    maintain road showed offer and acceptance of dedication); City of Waco v. Fenter, 
    132 S.W.2d 636
    ,
    637-38 (Tex. Civ. App.-Waco 1939, writ ref d) (circumstances to be taken into consideration in
    question of acceptance of alley include “that it has been improved for use as a thoroughfare”); Tex.
    Att’y Gen. Op. No. JM-200 (1984) at 4 (acceptance may be implied from county maintenance).
    A commissioners court “may not discontinue a public road until a new road designated by
    the court as a replacement is ready to replace it.” TEX. TRANSP.CODE ANN. 5 25 1.05 l(c) (Vernon
    1999). “Discontinue,” for the purposes of chapter 25 1, means “to discontinue the maintenance of
    the road.” 
    Id. 8 25
    1 .001(2). Furthermore, a commissioners court must discontinue a road by order.
    
    Id. 9 251.051(a).
    The record suggests that the Refugio County Commissioners Court has taken no formal
    action of the sort mandated by section 25 1.05 1 to discontinue River Road’s maintenance. Rather,
    on two separate dates, the county attorney issued letters indicating the county’s intent to cease
    maintaining the road.3 Accordingly, the commissioners court may not permanently cease the
    maintenance without doing so formally by order and without designating a replacement.
    However, as the Dallas Court of Civil Appeals wrote in 1952 in Hill v. Sterrett, 
    252 S.W.2d 766
    , 770 (Tex. Civ. App.-Dallas 1952, writ ref d n.r.e.), “The Commissioners’ Court possesses a
    broad discretion in the accomplishment of a constitutional objective; . . . for instance, maintenance
    of public roads.” 
    Id. (citations omitted).
    The decision as to how and where to expend limited public
    funds or to use limited resources is a classic case of governmental discretion. Absent a showing of
    abuse of that discretion, this decision is one for the commissioners court to make. “No principle of
    law is better settled than that acts of discretion and findings of fact on the part of public officers to
    ‘Letter fromHonorable Kenneth Armbrister, Chair, Senate Committee onNatural Resources, to Division Chief,
    Opinion Committee, Office of the Attorney General (June 17, 2003) (on file with Opinion Committee) [hereinafter
    Request Letter].
    ‘Letter from Mr. Joe Custer, to Honorable Kenneth Armbrister,   Texas State Senator (June 10, 2003) (on file
    with Opinion Committee) [hereinafter Custer Letter].
    3Letters from Honorable   Robert P. McGuill, Refugio County Attorney,   to Whom It May Concern      (June 15,
    2000)(May 18, 1999) (on file with Opinion Committee).
    The Honorable    Kenneth Armbrister     - Page 3       (GA-0128)
    which the requisite power is confided, including county commissioners,         will ordinarily not be
    disturbed on appeal.” County of Hays v. Alexander, 640 S.W.2d 73,78 (Tex. App.-Austin 1982,
    no writ) (reviewing commissioners court order classifying county road); see also StovaZZ v. Shivers,
    103 S.W.2d 363,366 (Tex. 1937) (A commissioners court “shall regard the roads and highways of
    the county as a system, to be laid out, changed, repaired, improved, and maintained, as far as
    practical, as a whole to the best interests and welfare of all the people of the county. It is clearly
    contemplated that all roads and bridges of the county shall be maintained, repaired, and improved
    when necessary, as the conditions may require, regardless of the precinct in which same may be
    located, so far as the funds will equitably justify. . . . [A] commissioners court has the right to
    exercise its sound judgment in determining the necessity, but it cannot act arbitrarily in regard to
    such matter.“). Failure to maintain a road adequately, of course, may have consequences in the event
    of accidents proximately caused thereby, the second area about which you inquire.
    Beyond the question of responsibility for road maintenance, you ask about possible tort
    liability of the county or of private landowners “if citizens are maintaining the county road in lieu
    of the county.” Request Letter, supra note 1. This question arises from your constituent’s concern
    about “who is responsible for the safety of the driving public on this public road.” Custer Letter,
    supra note 2. In the absence of any particular suit for damages, of course, the question is entirely
    speculative. Accordingly, we can only describe in the abstract the general principles of law that
    would apply in a particular instance.
    The Texas Tort Claims Act, chapter 101 of the Civil Practice and Remedies Code, generally
    governs tort liability questions concerning a governmental unit, such as a county, see TEX. CIV.
    PRAC. &REM. CODEANN. 8 101.001(2)(B) (V emon Supp. 2004), for an accident resulting from the
    condition of a road. Section 101.021(2) of the Tort Claims Act provides that a governmental unit
    is liable for “personal injury and death [proximately] caused by a condition or use of tangible
    personal or real property if the governmental unit would, were it a private person, be liable to the
    claimant according to Texas law.” 
    Id. 9 10
    1.02 l(2) (V emon 1997) (emphasis added). Accordingly,
    the county may owe a duty of care equal to that of a private landowner.
    The particular section of the Tort Claims Act at issue in cases regarding a road condition is
    usually section 101.022, which defines the governmental unit’s duty according to the nature of the
    real property’s defect. Section 101.022 reads:
    (a) If a claim arises from a premise defect, the governmental
    unit owes to the claimant only the duty that a private person owes to
    a licensee on private property, unless the claimant pays for the use of
    the premises.
    (b) The limitation of duty in this section does not apply to the
    duty to warn of special defects such as excavations or obstructions on
    highways, roads, or streets or to the duty to warn of the absence,
    condition, or malfunction of traffic signs, signals, or warning devices
    as is required by Section 101.060.
    
    Id. $ 101.022.
    The Honorable Kenneth Armbrister        - Page 4       (GA-0128)
    As the Supreme Court of Texas explained the difference between the two subsections              of
    section 101.022 in State Department of Highways v. Payne, 
    838 S.W.2d 235
    (Tex. 1992):
    If [the supposed cause ofthe accident] was a premise defect, the State
    owed [the plaintiff] the same duty a private landowner owes a
    licensee. That duty requires that a landowner not injure a licensee by
    willful, wanton or grossly negligent conduct, and that the owner use
    ordinary care either to warn a licensee of, or to make reasonably safe,
    a dangerous condition of which the owner is aware and the licensee
    is not. If [the cause] was a special defect, the State owed [the
    plaintiff] the same duty to warn that a private landowner owes an
    invitee. That duty requires an owner to use ordinary care to reduce or
    eliminate an unreasonable risk of harm created by a premises
    condition of which the owner is or reasonably should be aware.
    There are two differences between these theories. The first is that a
    licensee must prove that the premises owner actually knew of the
    dangerous condition, while an invitee need only prove that the owner
    knew or reasonably should have known. The second difference is
    that a licensee must prove that he did not know of the dangerous
    condition, while an invitee need not do so.
    
    Id. at 237
    (citations omitted).
    Cases involving the conditions of public roads are generally, but not always, premise defect
    cases. Special defects “are excavations or obstructions, or other conditions which ‘present an
    unexpected or unusual danger to ordinary users of roadways. “’ State Dep ‘t of Highways & Pub.
    Transp. v. Kitchen, 867 S.W.2d 784,786 (Tex. 1993) (citations omitted). For example, a “chughole”
    causing an accident has been held to be of such a size as to constitute a special defect, and therefore
    to trigger a higher duty of care. County of Harris v. Eaton, 
    573 S.W.2d 177
    , 178-80 (Tex. 1978).
    Antecedent, however, to the question of the nature of the duty a county might owe the driving
    public is the issue of whether in a particular instance it exercises sufficient ownership or control of
    the road to owe any duty at all. In IDC, Inc. v. County oflvueces, 8 
    14 S.W.2d 91
    (Tex. App.-Corpus
    Christi 1991, writ denied), the question was whether Nueces County was liable for an accident
    caused by a hole in the surface of a public road called Chapman Ranch Road. The county argued
    that it owed no duty to the public for the condition of the road, a state highway, because it did not
    own, occupy, or control the premises involved. The county’s evidence was that it did not own,
    maintain, or control the road, but rather that the road was solely the state’s property. The appellate
    court affirmed the trial judge’s entry of summary judgment for the county, writing, “It is fundamental
    that the right of recovery for an injury sustained by the plaintiff as a result of the defendant’s conduct
    must be founded upon a legal duty of some character owed to the plaintiff with respect to the injury
    and a violation of that duty by the defendant.” 
    Id. at 93.
    The Honorable Kenneth Armbrister             - Page 5          (GA-0128)
    The question of ownership and control will frequently require the resolution of particular
    facts, and is therefore not one in which this office ordinarily engages in the opinion process.4
    However, in this instance, because the county has for a substantial number of years exercised control
    over River Road and its condition, but has not taken the necessary formal action to discontinue
    maintenance of the road, it might well be subject to the imposition of civil liability for an accident
    proximately caused by the condition of the road.
    In addition, those who own or control real property may be under a duty to the public to keep
    that property in a reasonably safe condition, if the public has a right of access to that property.
    Moreover, one who neither owns nor controls real property may also be held liable for a dangerous
    condition on that property if he creates the condition. LefmarkMgmt. Co. v. OZd, 
    946 S.W.2d 52
    ,
    54 (Tex. 1997); City ofDenton v. Page, 701 S.W.2d 831,835 (Tex. 1986); Strakos v. Gehring, 
    360 S.W.2d 787
    , 795 (Tex. 1962). Accordingly, if in their maintenance of River Road the private
    landowners created a hazardous condition, they could be liable for accidents proximately caused by
    that condition.
    Any given tort case of course will depend upon its own facts, and consequently we can advise
    you only generally on potential liability matters. However, we reiterate that the issues in such a case
    may include whether the defendant (county or private landowner) owned or controlled the property
    in question, what the nature of the purported defect was, and what the nature and extent of the duty
    owed the public was in the circumstances.       Even if the defendant does not exercise ownership or
    control of the property, liability could attach in the event of an accident caused by a condition the
    defendant created.
    4See Tex. Att’y Gen. Op. Nos. GA-0106 (2003) at 7 (“This office cannot find facts or resolve fact questions
    in an attorney general opinion.“); GA-0003 (2002) at 1 (“factual findings . . . cannot be made in the opinion process”).
    The Honorable Kenneth Armbrister     - Page 6      (GA-0128)
    SUMMARY
    A commissioners    court may not permanently      cease to
    maintain a public road without formally ordering that the road be
    discontinued and designating an alternative route. See TEX.TRANSP.
    CODE ANN. $9 251.001(2), 251.051(a), (c) (Vernon 1999). A
    county’s decision as to the frequency of its maintenance of any
    particular county road is a matter for the discretion of the
    commissioners court.
    Liability in tort for an accident proximately caused by the
    condition of a road to which the public has a right of access will
    depend upon the resolution of a variety of questions. These questions
    may include the ownership or control of the road in question, the
    nature of the duty owed the public in a particular instance, whether
    the defect alleged is a premise defect or special condition, and
    whether or not a particular party caused the defect in question.
    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
    James E. Tourtelott
    Assistant Attorney General, Opinion Committee