Untitled Texas Attorney General Opinion ( 2009 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
January 22, 2009
The Honorable Robert F. Vititow Opinion No. GA-0693
Rains County Attorney
220 West Quitman Re: Authority of a commissioners court to
Post Office Box 1075 remove from county right-of-way structures it
Emory, Texas 75440 deems to be a safety hazard (RQ-0729-GA)
Dear Mr. Vititow:
You inform us that in Rains County, individuals have erected mailboxes "constructed of
various materials including, stone, brick, concrete and sometimes large metal posts" and that, in
some instances, these mailboxes are "adjacent to the paved county roadway or within a few feet of
the paved roadway."l You state that the "commissioners perceive these mailboxes to be a safety
hazard to the general public," and you request an opinion relating to the authority ofa commissioners
court to require landowners to remove hazardous mailboxes from the county road right-of-way and
replace them with others that are easily knocked down when struck by a vehicle. Request Letter
at 1-2.
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 (Vemon
Supp. 2008). Section 251.003 more specifically authorizes commissioners courts to "make and
enforce all necessary rules and orders for the construction and maintenance of public roads." Id
§ 251.003(a)(I) (Vernon 1999). "By granting commissioners courts general control over the roads,
the Legislature imposed on them a duty to make the roadways safe for public travel." City ofSan
Antonio v. City ofBoerne, 111 S.W.3d 22, 31-32 (Tex. 2003).
Pursuant to this authority, we have previously concluded that a commissioners court may
remove or order the removal of objects in the county road right-of-way that create a safety hazard
to the public. See Tex. Att'y Gen. Op. No. GA-0430 (2006) at 3-4 (allowing commissioners court
to remove abandoned mobile homes in the right-of-way); Tex. Att'y Gen. Op. No. JM-1241 (1990)
at 2 (allowing commissioners court to require the removal of trees or shrubs that interfere with the
right-of-way). However, whether and to what extent the mailboxes at issue create a hazard to the
public is a fact question not appropriate for the opinion process. Tex. Att'y Gen. Op. No. GA-0620
(2008) at 5. Thus, we are unable to answer whether the commissioners court is authorized to remove
or order the removal of the specific mailboxes at issue.
ISee Request Letter at 2 (available at www.texasattomeygenera1.gov).
The Honorable Robert F. Vititow - Page 2 (GA-0693)
You also ask about the perimeters ofa county's right-of-way on a road established by implied
dedication or prescription. See Request Letter at 2. When a road is established by prescription or
dedication, "the right is not limited to the beaten path used, but includes sufficient land, where
reasonably available, for drainage ditches, repairs, and the convenience of the traveling public."
Allen v. Keeling, 613 S.W.2d253, 254-55 (Tex. 1981) (holding county's prescriptive rights to a road
"extend ... into the eighteen to twenty foot wide bar ditches"). Thus, to the extent that land is
"reasonably available," a county's right-of-way will extend beyond the area traveled. However,
whether and to what extent a public right-of-way has been acquired by dedication or prescription on
a given road is a fact question that cannot be resolved by an opinion. See Linder v. Hill, 691 S.W.2d
590,591 (Tex. 1985); Tex. Att'y Gen. Op. No. GA-0620 (2008) at 5.
The Honorable Robert F. Vititow - Page 3 (GA-0693)
SUMMARY
Pursuant to its general control over all roads, highways, and
bridges in the county, as provided for in section 251.016 of the
Transportation Code, a commissioners court may remove or order the
removal ofobjects in the county road right-of-way that create a safety
hazard to the public. Whether the mailboxes at issue are hazardous
to the public, and can therefore be removed by the commissioners
court, is a fact question not appropriate for the opinion process.
Generally, when a road is established by prescription or
dedication, the right is not limited to the area traveled, but includes
sufficient land, where reasonably available, for drainage ditches,
repairs, and the convenience of the traveling public. However,
whether and to what extent a public right-of-way has been acquired
by dedication o~ prescription is a question of fact that cannot be
decided through the opinion process.
ANDREW WEBER
First Assistant Attorney General
JONATHAN K. FRELS
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Virginia K. Hoelscher
Assistant Attorney General, Opinion Committee