Untitled Texas Attorney General Opinion ( 1988 )

Honorable Charles W. Chapman Opinion No. 311-842
Criminal District Attorney
Courthouse, Room 208 Re: Retroactivity of the
San Marcos, Texas 78666 1985 amendment to article
6812h, V.T.C.S., relating
to the acquisition of a
public interest in private
roads in certain counties
(RQ-1180)
Dear Mr. Chapman:
You ask whether a 1985 legislative amendment to
article 6812h, V.T.C.S., gives the statute retroactive
effect. We answer your question in the negative.
you inform us that in April of 1987 a county commis-
sioner of Hays County directed a work crew to remove a
cattle guard and part of a fence in the area of a road
known as McCarty Lane but also designated as County Road
233. After this work was completed, an attorney repre-
senting owners of land through which the road allegedly
runs appeared before the commissioners court and claimed
the road was a private road and the fence stood on private
property. He also requested that the county return the
cattle guard and fence to their original locations. The
commissioner who ordered their removal indicated that the
county maintained the road prior to the effective date of
article 681211,and has maintained it continuously since.
YOU suggest that the county acquired a public
interest in the road under the doctrine of implied dedica-
tion prior to 1981. Article 6812h, you add, eliminated
the doctrine of implied dedication as of its effective
date, August 31, 1981. You do not ask, and we do not
consider, whether in fact the county acquired a public
interest in the road. The resolution of this issue
requires factual determinations which this office cannot
make in an Attorney General Opinion. &S Las Veaas Pecan &
Cattle Co.. I c v. Z ala Countv 682 S.W.2d 254, 256
(Tex. 1984) (Eliments ET implied dedication).
p. 4064
Honorable Charles W. Chapman - Page 2 (JM-842)
Article 6812h affected the acquisition of a public
interest in private roads in counties with a population of
50,000 or less according to the preceding federal census.
your brief cites two Texas Supreme Court cases in which it
was declared that article 681211 "contains no provision
which would make it retroactive and, without such a
provision, the statute can be given only prospective
app1ication.w mdner v Hj& 691 S.W.2d 590, 592 (Tex.
1985); Lgs aas Pecan * 8 Ckttle Co.. Inc. v. Zavala
County, &at 256. The statute was amended in 1985,
the amendments taking effect after the Linder and Las
Veaas decisions were rendered. Acts 1985, 69th Leg., ch.
509, §3, at 2099 (effective Sept. 1, 1985). Sections 2
and 3 of article 6812h were amended as follows (language
added by the amendment is underlined, deleted language in
brackets):
Section 2. PUBLIC INTEREST. (a) A county
may not establish, acquire, or receive any
public interest in a private road except
under the following circumstances: (1) pur-
chase; (2) condemnation; (3) dedication: or
(4) anal iudwent f adverse possession b
a court of comnetent iurisdiction.
(b) Once a public interest has been
established in accordance with Subsection
(a) of this section, the interest must be
recorded in the records of the commissioners
court of the county in which the road is
located bv resolution which declares the
circumstance bv which such interest was
accuired and the effective date thereof.
I . a not
(cl The
assert that a nublic interest has been
established in a nrivate road bv anv of the
four meth ds orovided in Subsection ia) of
this sectyon until the interest has been
recorded in then manner orovided in Sub-
section (b) of this section and written
notice has been aiven to the ownerfs) of the
road either in oerson or bv reaistered m il
to the address of the nerson as shown on the
most recent ad valorem tax roll for the
countv.
Section 3. CONTEST. Any person asserting
any right, title, or interest in a private
p. 4065
Honorable Charles W. Chapman - Page 3 (J&842)
road in which a public interest has been
asserted in accordance with Section 2 of
C this Act may file suit in a district court
in the county in which the road is located
within two years after the later of h
followinq: (1) the resolution [notat&;
in the records of the commissioners court of
the public interest in the road: and (2) the
written notice to the owner~fs)of the road .
You contend the 1985 amendment to article 681211 does not
suggest that the statute should now be given retroactive
application. We agree.
Retroactive statutes are generally viewed with dis-
favor. Rutchinas v. Slw 174 S.W.2d 487 (Tex. 1943).
Article I, section 16, of th; Texas Constitution prohibits
the enactment of retroactive laws: however, the provision
has been held only to invalidate laws which destroy or
impair vested rights. See Merchants Fast Motor Lines,
In v. Railroad Coqy&%aion of Texas 573 S.W.2d 502 (Tex.
19%) : Deacon v. Citv of Eules '405 S.W 2d 59 (Tex.
1966). See also Gov't Code ii11.022 (a statute is
presumed to be prospective in operation unless expressly
- made retrospective). There is a general presumption that
a statute is intended to operate prospectively and not
retroactively, even when there is no constitutional
impediment against retroactive application. see Coastal
Industrial Water Authoritv v. Trinitv Portland Cement
Division. General Portland Cement Co., 563 S.W.Zd 916
ITex. 1978). Anv doubt is to be resolved in favor of a
prospective operation. &S Ex carte Abell, 613 S.W.2d 255
(Tex. 1981). It is presumed further that an amendment to
a statute is to operate prospectively only. Amnlifone
Core. v. Cameron Countv, 577 S.W.2d 567 (Tex. Civ. App. -
Corpus Christi 1979, no writ). These presumptions may be
overcome if it appears plainly or by fair implication from
the language used that the legislature intended the
statute or amendment to have retroactive application. See
Ex carte Ab 11 . Citv of Corpus Christi v..Hersch-
bath, 536 g.W:2?%'
-. ITex. Civ. ADD. - COrDUS Christi
1976, writ ref'd n.r.e:). Moreover-;-the legislature may
enact a law that by its terms is retrospective in
operation, provided no impairment of vested rights
Ih results. Hocklev Countv Seed & Delintina. Inc. v.
Southwestern Investment Co., 476 S.W.2d 38 (Tex. Civ. App.
- Amarillo 1971, writ ref'd n.r.e.).
p. 4066
Honorable Charles W. Chapman - Page 4 (JM-842)
As you observe in your brief to this office, the
language added to article 6812h in 1985 imparted no retro-
spective effect upon the statute. The legislative history
of the 1985 enactment reveals that a provision was added
in the Senate making the amendment to section 2(a) retro-
active to August 31, 1981. S.J. of Tex., 69th Leg., R.S.,
569 (1985) (committee amendment to section 3 of S.B. No.
966). The retroactivity provision was deleted in the House
of Representatives, however. H.J. of Tex., 69th Leg.,
R.S., 3010 (1985) (substitute for section 3 offered by
Rep. Willy). The Senate concurred in the House amendments
to S.B. NO. 966 by viva vote vote. S.J. of Tex., 69th
-cl., R.S., 2176 (1985). In 1986, the San Antonio Court
of Appeals, relying on the m Veaa8 and Lindner cases,
concluded that article 681211is given prospective applica-
tion only and does not operate to divest a county of the
public interest it acquired in a private road prior to the
effective date of the-statute. Uvalde Countv-v. Barrier,
710 S.W.2d 740, 747 (Tex. App. - San Antonio 1986, no
writ).
Accordingly, we conclude that the 1985 legislative
amendment to article 6812h, V.T.'C.S.,does not require the
retroactive application of the statute to counties which
acquired a public interest in a private road prior to the --.
effective date of article 6812h.
SUMMARY
The 1985 legislative amendment to article
6812h, V.T.C.S., Acts 1985, 69th Leg., ch.
509, at 2099, does not require the retroactive
application of the statute to counties which
acquired a public interest in a private road
prior to the effective date of article 6812h.
J k
Very t‘rulyyo r ,
JIWTATTOX
Attorney General of Texas
MARYEELLER
First Assistant Attorney General
LOU MCCREARY
Executive Assistant Attorney General
p. 4067
Honorable Charles W. Chapman - Page 5 (J&842)
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Rick Gilpin
Assistant Attorney General
p. 4068