Untitled Texas Attorney General Opinion ( 2009 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
April 7, 2009
The Honorable G.A. Maffett, III Opinion No. GA-0703
Wharton County Attorney
309 East Milam, Suite 500 Re: Authority of a commissioners court to remove fencing
Wharton, Texas 77488 located within a county right-of-way (RQ-0749-GA)
Dear Mr. Maffett:
You ask whether a county has the "authority to remove fencing located within a county road
right-of-way that the Commissioners Court determines interferes with the safety and transportation
of the public[.]"l You describe the nature of the fence at issue as dangerous and tell us that the
"Commissioners Court determined the fence obstructed the public's ability to safely travel and
ordered the fence removed .... " Request Letter at 3; see id. (attached Order, finding that "fence is
a hazard and constitutes an obstruction to the public's safety, use and transportation" of the county
road).
The Legislature has granted commissioners courts authority to "exercise general control over
all roads, highways, and bridges in the county." TEx. TRANSP. CODE ANN. § 251.016 (Vernon SUpp.
2008). In addition, section 251.003 of the Transportation Code authorizes a commissioners court
to "make and enforce all necessary rules and orders for the ... maintenance of public roads." ld.
§ 251.003(a)(1 ) (Vernon 1999). With respectto this general authority, the Texas Supreme Court has
stated that the "Legislature imposed on [county commissioners courts] a duty to make the roadways
safe for public travel." City of San Antonio v. City of Boerne, 111 S.W.3d 22, 31-32 (Tex. 2003)
(construing statutory predecessor to section 251.0 16). The Transportation Code further provides that
a public road of all classes must "be clear of all obstructions." ld. § 251.008(1).
Based on the authority found in the Transportation Code, this office has previously concluded
that a county commissioners court may remove or order the removal from a county road right-of-way
objects that create a safety hazard to the public. See Tex. Att'y Gen. Op. Nos. GA-0430 (2006) at
3-4 (abandoned mobile home); JM-1241 (1990) at 2 (trees or shrubs); M-534 (1969) at 4
(obstruction). The determination of whether a particular item creates a public safety hazard is a fact
determination for the commissioners court to make in the first instance, subject to judicial review.
See Tex. Att'y Gen. Op. No. GA-0693 (2009) at 1 (concluding question whether mailboxes create
a public safety hazard is a fact question not appropriate for the opinion process); Request Letter
(attached Order, finding that "fence is a hazard and constitutes an obstruction to the public's safety,
use and transportation" of the county road).
lSee Request Letter at 1 (available at www.texasattomeygeneral.gov).
The Honorable G.A. Maffett, III - Page 2 (GA-0703)
SUMMARY
A county commissioners court has authority, subject to
judicial review, to remove from a county road right-of-way objects
that create a safety hazard to the public.
Attorney General of Texas
ANDREW WEBER
First Assistant Attorney General
JONATHAN K. FRELS
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Charlotte M. Harper
Assistant Attorney General, Opinion Committee