Untitled Texas Attorney General Opinion ( 1968 )

January 10, 1968
Honorable Glendon Roberts Opinion No. M-189
County Attorney
Bandera County Courthouse '. Re: Right of County Commissioners
Bandera, Texas 78003 Court to erect cattle guards
in lieu of gates under Art-
icle 6704, Vernon's Civil
Dear Sir: Statutes.
In your recent letter to this office, you request our
opinion as to whether the County Commissioners Court may erect
cattle guards in lieu of gates under Article 6704, Vernon's
Civil Statutes.
Article 6712, Vernon's Civil Statutes, provides as
follows:
"The owners of land across which a third
class or neighborhood road may be run, when the
right of way therefor has been acquired without
cost to the county, may erect gates across said
r-d when necessary, said gates to be not less
than ten feet wide and free of obstructions at
the top, U
Section 4 of Article 6704, Vernon's Civil Statutes,
provides, in part, as follows:
"The Commissioners Court shall classify
all public roads in their counties as dollowsn
* * x * * * * * c f * *
"4 % Any county in this State containing
a population of less than ten thousand (10.000)
inhabitantsI or any county with a population of
not less than twenty-one thousand, two hundred
-898-
Hon. Glendon Roberts, page 2 (M-189)
and sixty-five (21,265) nor more than twenty-one
thousand. seven hundred and eighty-five (2x*,7851,
according to the last prec,eding Federal Census,
may by J majority vote of the Commissioners Court
thereof authorize the construction of cattle
guards across any or all of the first class,
second~class, or third class roads in said
county, and such cattle quards shall not be
classed or considered as obstructions on said
roads.
"The Commissioners Court of any county
cominq under the provisions of this Act is
hereby authorized and empowered to construct
cattle quards on the first class, second class,
and .third class roads of said county and pay for
the same out of the Road and Bridge Funds of
said county when in their judgment they believe
the construction of such cattle guards to be to
the best interest of the citizens of said county
As amended Acts 1965,, 59th Leg.; pa 1499. ch.
650, 0 1, emerg.eff, June 17, 1965." [Emphasis
added,)
In your Letter you provide the following two facts:
(1, The road involved was acquired at no
cost to the county,
{2j Bandera County has a population of less
than ten thousand IlO,OOOB inhabitants,
Upon examination of Articles 6704 and 6712, there
exists a confl,ict as 'between the power of the Commissioners Court
to erect cattle guards under Article 6704 and the right of the
landowner to erect gates under ,Article 6712, Vernon's Civil
Statutes, This conflict arises when the landowner has erected
or wishes to erect a gate and the Commissioners Court wishes
to erect a cattle guard.
-899-
Hon. Glendon Roberts, page 3 (M-189)
Prior to,,the enactment of the language specifically
dealing with cattle guards in Article 6i04. neither the county
nor private individuals were authorized to erect cattle guards.
Article 6712 concerns the right of a private individual to erect
a gate. Moreover, cattle guards were deemed to,be road obstruc-
tions. Therefore, in recognition of this, the Legislature specifi-
cally worded the language in Article 6704 to repeal that in-
hibition: Attorney General's Opinion No. O-4695 (1942).
It is our opinionthat when it enacted the language
specifically dealing with cattle guards in Article 6704 in such
a way as to be conflicting, inconsistent or repugnant to Article
6712, it was the intent of the Legislature to repeal or super-
sede Article 6712 to the extent of that inconsistency or con-
flict. rirst National Bank v. Lee County Cotton Oil Co., 2'50
S.W. 313 (Tex.Civ.App. 1923). affirmed First National Bankof
Giddinqs v. Lee County Cotton Oil Co., 274 S.W. 127 (Tex.Corrm.
App. 1925).
Although the Legislature did not expressly repeaY
Article 6712 when it'enacted the aforementioned language in
Article 6704. we are of the opinion that Article 6704 controis
over Article 6712 whenever the Commissioners Court authorizes
the erection of cattle guards pilrsuant to its terms Our state-
ment rests upon the principle that the latest expression of the
lawmakers will be given effect. 53 Tex.Jur.Zd 149, Statutes,
8 101;
II
. . .
"A statute does not, of course, abrogate
or affect an earlier law where there is no con-
flict between the two, But an act that is la&
in point of time controls, repeals or supersedes
an earlier act. in so far as the two are incon-
sistent and irreconcilable and cannot both stand
at the same time . . .Ij 39 Tex.Jur. 139, Statutes
§ 74,
We hold, therefore, that whenever the Commissioners
Court authorizes the erection of cattle guards, as provided in
1 ,
Hon. Glendon Roberts, page 4 (M-189)
Article 6704, the right of a landowner to erect gates under
Article 6712 is superseded,
In answer to yourinquiry, you are respectfully ad-
vised that the Commissioners Court has the right to erect
cattle guards when, in their judgment, they believe the con-
struction of such cattle guards to be to the best interest of
the citizens of said county, and if there is a conflict. this
right is paramount to that of the landowner's right to erect
gates.
' SUMMARY
The provisions of Article 6704, Vernon's
Civil Statutes, control over Article 67.12,
Vernon's Civil Statutes, to the extent of any
conflict between'the power of the Commissioners
Court to erect cattle guards and the power of a
landowner to erect gates. In event of a con-
flict, the right of the Commissioners Court to
erect cattle guards under Article 6704 is para-
mount to'the right of a landowner to erect a
gate under Article 6712, provided that the
CommissionersCourt believes the construction
of the cattle guard is to the 'best interest of
the citizens of the county.
I.
k
truly yours.
rney General of Texas
Prepared by Alan Minter
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Hawthorne Phillips, Chairman
Kerns Taylor. Co-Chairman
-901-
.
Hon. Glendon Roberts. page 5 (M-189)
W. V: Geppert
John Banks
Dyer Moore
Mark White
A. J. CARUBBI. JR.
Staff Legal AssIstant
-902-.