Untitled Texas Attorney General Opinion ( 2003 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
June 9,2003
The Honorable Joe R. Smith Opinion No. GA-0080
Tyler County Criminal District Attorney
Courthouse Annex Re: Whether, under section 542.007 of the
100 West Bluff Transportation Code, a county commissioners
Woodville, Texas 75979 court may extend state traffic laws to roads in
a private subdivision and, if so, whether it may
except from the laws thus extended statutes
restricting all-terrain vehicle use on public
roads (RQ-0008-GA)
Dear Mr. Smith:
You ask whether, under section 542.007 of the Transportation Code, the commissioners court
in a county with a population of fewer than 100,000 may extend state traffic laws to roads in a
private subdivision located in the county’s unincorporated area and, if so, whether it may except
from the traffic laws thus extended statutes restricting the use of all-terrain vehicles on public roads. *
You state that residents of Ivanhoe, a private subdivision located in Tyler County (the
“County”), petitioned the county commissioners court to extend state traffic laws to roads in the
subdivision. Request Letter, supra note 1, at 1.* We understand that the Ivanhoe Property Owners’
Association owns the roads in the subdivision, although Ivanhoe’s entrance is not restricted and its
roads are open to the public. LaBorde Brief, supra note 2, at 1. The commissioners court approved
the proposal and “entered into an interlocutory agreement” to provide officers from the sheriffs
department to enforce state traffic laws in the subdivision. Request Letter, supra note 1, at 2.
Subsequently, following a change in the property owners’ association board of directors, the
association “submitted an amendment to the commissioner[]s court to exempt all-terrain vehicles
from the laws.” Id.; see also LaBorde Brief, supra note 2, at l-2.
‘Letter from Honorable Joe R. Smith, Tyler County Criminal District Attorney, to Honorable Greg Abbott,
Texas Attorney General, at 1 (Dec. 12,2002) (on file with Opinion Committee) [hereinafter Request Letter].
2AccwdBrief fromMr. H. J. (Joe) LaBorde, Ivanhoe Property Owners’ Association, to Mr. Rick Gilpin, Deputy
Chair, Opinion Committee, Office of the Attorney General, at 1 (Jan. 3 1, 2003) (on file with Opinion Committee)
[hereinafter LaBorde Brief’j.
The Honorable Joe R. Smith - Page 2 (GA-0080)
Traffic rules applicable to public roads typically do not apply to privately owned roads. See
TEX. TRANSP. CODE ANN. 5 542.005 (Vernon 1999). Section 542.007 of the Transportation Code
permits a commissioners court to extend traffic rules to roads in a private subdivision in certain
circumstances:
(a) This section applies only to a subdivision that is located in
the unincorporated area of a county with a population of 100,000 or
less.3
(b) On petition of 25 percent of the property owners residing
in a subdivision in which the roads are privately maintained or on the
request of the governing body of the entity that maintains those roads,
the commissioners court of the county by order may extend any traffic
rules that apply to a county road to the roads of the subdivision if the
commissioners court finds the order in the interest of the county
generally. The petition must specify the traffic rules that are sought
to be extended. The court order may extend any or all of the
requested traffic rules.
Id. 4 542.007 (Vernon Supp. 2003). If a commissioners court issues an order extending traffic rules
under section 542.007(b), “the private roads in the subdivision are considered to be county
roads for purposes of’ applying and enforcing “the specified traffic rules.” Id. 8 542.007(d). Section
542.007 applies to the County, which has a population of fewer than 100,000 people. See BUREAU
OF THE CENSUS, U.S. DEP’T OF COMMERCE, 2000 CENSUS OF POPULATION, available at
http://www.census.gov/ (population of Tyler County: 20,871). The Ivanhoe subdivision is located
in an unincorporated area of the County. Telephone Conversation with District Attorney’s Office
(May 8,2003).
State law generally does not permit an individual to operate an all-terrain vehicle on a public
road:
(a) A person may not operate an all-terrain vehicle on a public
street, road, or highway except as provided by this section.
(b) The operator of an all-terrain vehicle may drive the vehicle
across a public street, road, or highway that is not an interstate or
limited-access highway [in certain circumstances].
TEX. TRANSP.CODE ANN. 5 663.037(a)-(b) (V emon Supp. 2003); see also id. 4 663 .001(l) (Vernon
1999) (defining “all-terrain vehicle”).
3The Seventy-eighth Legislature has adopted an amendment to subsection (a) that will raise the population
requirement to “500,000 or less.” See Act of May 22,2003,78th Leg., R.S., H.B. 1439 (to be codified at TEX. TRANSP.
CODE ANN. 5 542.007(a)). If signed by the Governor, the amendment will take effect September 1,2003. See id. 5 2.
The Honorable Joe R. Smith - Page 3 (GA-0080)
Section 542.007(b) expressly authorizes certain commissioners courts to extend traffic rules
applicable to county roads to private subdivision roads if subdivision property owners present a
proper petition. In addition, subsection (b) expressly permits a county to extend some traffic rules
and not others. In particular, the statute requires a property owners’ petition to specify the traffic
rules that they seek the county to extend, which would be unnecessary if the property owners could
petition only to have all traffic rules apply. Id. 5 542.007(b) (Vernon Supp. 2003). Section
542.007(b) further authorizes a county, if it approves a petition, to extend “any or all” of the
requested rules. Id. Thus, the Ivanhoe property owners could have petitioned the County’s
commissioners court to extend all applicable traffic rules except those restricting the use of all-
terrain vehicles, and the commissioners court could have approved the petition. In the alternative,
the commissioners court could have approved the Ivanhoe petition but decided on its own motion
to except restrictions on all-terrain vehicle use although the Ivanhoe property owners did not request
the exception.
Your inquiry concerns a county commissioners court’s authority to do by amendment what
it could have done in its original order. Although neither the original petition nor the original
commissioners court’s order excepted all-terrain vehicle restrictions, Ivanhoe property owners now
petition the County commissioners court to amend its original order to permit all-terrain vehicle use
on subdivision roads. See Request Letter, supra note 1, at 1. Your circumstances thus differ from
either of the situations that section 542.007(b) expressly addresses. See TEX. TRANSP.CODE ANN.
5 542.007(b) (Vernon Supp. 2003).
A commissioners court may amend a previous order “insofar as the amendment conforms
to” the court’s statutory authority and does not violate constitutional rights. Tex. Att’y Gen. Op. No.
JM-534 (1986) at 5. Nothing here indicates that the proposed amendment is contrary to the court’s
statutory authority or contravenes constitutional rights.
We conclude that the Tyler County Commissioners Court may extend traffic rules applicable
to county roads to roads in a private subdivision in accordance with section 542.007 of the
Transportation Code. Moreover, the court may amend its order to except from the applicable laws
those statutes restricting all-terrain vehicle use on public roads.
The Honorable Joe R. Smith - Page 4 (GA-0080)
SUMMARY
In accordance with section 542.007 of the Transportation
Code, a county commissioners court may extend all or some of the
traffic rules applicable to county roads to roads in a private
subdivision. See TEX. TRANSP. CODE ANN. 8 542.007(b) (Vernon
Supp. 2003). In addition, a commissioners court that has, by order,
extended its traffic rules to private subdivision roads may amend a
previously issued order to except otherwise applicable restrictions on
all-terrain vehicle use.
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
Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee