Untitled Texas Attorney General Opinion ( 2008 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
September 2, 2008
The Honorable R. Lowell Thompson Opinion No. GA-0659
Navarro County Criminal District Attorney
Navarro County Courthouse Re: Legal status of a portion of a road originally
300 West Third Avenue, Suite 203 built as an Ellis County road but which a later
Corsicana, Texas 75110 survey established as located in Navarro County
(RQ-0682-GA)
Dear Mr. Thompson:
You ask about the legal status of a portion of a road known as Slama Road, originally built
as an Ellis County road but which a later survey established as located in Navarro County.!
You recount that in 1902, the Ellis County Commissioners Court established Slama Road
by a jury of view as a "Public Road of the 3rd class" extending through Ellis County "to [the]
Navarro County line," where the road came to a dead end. Request Letter, supra note 1 (Minutes
of Commissioners' Court, Ellis County, Texas, Exhibit 1 (Aug. 1902) & Exhibit 2 (Nov. 1902),
attached to Request Letter). In 1931, however, the Commissioners Courts of Ellis and Navarro
Counties ordered their surveyors to resurvey the line dividing the two counties. Request Letter,
supra note 1, at 3. The resurvey shows that portions oftracts thought to be in Ellis County are in fact
in Navarro County. Id. Although the surveyors' report does not expressly mention roads, it can be
determined from it that the last .0432 of a mile of Slama Road, to its termination, actually lies in
Navarro County. Id. A landowner contends that "the southernmost 0.432 mile of Slama Road [is]
a public road of Navarro County."2 You assert that there is no record "of any action whereby the
Navarro County Commissioner's Court established any portion of Slama Rd. as a public road of
Navarro County." Request Letter, supra note 1, at 8 (emphasis added).
By "public road of Navarro County," we understand you to mean a road that is part of the
Navarro County system of roads. While opinions and statutes occasionally use the terms "public
lSee Letter from Honorable R. Lowell Thompson, Navarro County Criminal District Attorney, to Honorable
Greg Abbott, Attorney General of Texas (Feb. 22, 2008) (on file with the Opinion Committee, also available at
www.texasattorneygenera1.gov) [hereinafter Request Letter].
2See Brief from Mr. Keith A. Clouse, Clouse Dunn Khoshbin LLP, on behalf of James Mayes Farms, Inc., to
Honorable Greg Abbott, Attorney General of Texas, at 6 (Mar. 25, 2008) (on file with the Opinion Committee)
[hereinafter JMF Brief] (emphasis added).
The Honorable R. Lowell Thompson - Page 2 (GA-0659)
road" and "county road" interchangeably,3 it is helpful to observe each term's respective primary
meaning. In an early opinion, the Supreme Court of Texas explained the meaning of the term
"public road":
All roads which have been laid out and established by authority ofthe
commissioners' courts are public roads. A road not originally
established unde! the statute may become public by long-continued
use and adoption as such by the county commissioners with the assent
of the owner or by prescription. A road may also become public, in
the sense that the public have the right to use it, by dedication.
Worthington v. Wade, 17 S.W. 520, 520-21 (Tex. 1891) (emphasis added) (citations omitted); see
also Buffington v. DeLeon, 177 S.W.3d 205, 210 (Tex. App.-Houston [1st Dist.] 2005, no pet.)
(quoting Worthington); Stein v. Killough, 53 S.W.3d 36, 43 (Tex. App.-SanAntonio 2001, no pet.)
(same); Camilla Twin Harbor Volunteer Fire Dep 't., Inc. v. Plemmons, 998 S.W.2d 413,415 (Tex.
App.- . Beaumont 1999, pet. denied) (same). Thus, a "public road" in the broadest sense is a road
that, whether as a result ofgovernmental action or otherwise, the public is entitled to use as a matter
of right, as distinguished from a private road. See Worthington, 17 S.W. at 521; Bradford v.
Moseley, 223 S.W. 171, 174 (Tex. Comm'n App. 1920, judgm't adopted) ("A road open to the
public is a public road."); Atchison, Topeka & Santa Fe Ry. Co. v. Acosta, 435 S.W.2d 539, 548
(Tex. Civ. App.-Houston [1 st Dist.] 1968, writ ref d n.r.e.) ("Before a road is a public road, it must
be used by the public generally as a matter of right.").
A county road, on the other hand, is a public road that the commissioners court has accepted
into the county's system of roads. See Burke v. Thomas, 285 S.W.2d 315, 320 (Tex. Civ.
App.-Austin 1955, writ refd n.r.e.) (stating that the term "county road ... means a public· way for
normal means of travel within a county under county supervision and control") (emphasis added);
Tex. Att'y Gen. Ope No. GA-0594 (2008) at 4 (stating that "even if the roads in question were
dedicated to the public, they would not be county roads unless the commissioners court accepted the
roads into the county road system").4 While all roads in a county's system of roads are "public
3Chapter 251 of the Transportation Code, in particular, uses the term "public road" to denote a road in the
county system of roads. See, e.g., TEX. TRANSP. CODE ANN. §§ 251.007 (Vernon 1999) (requiring the "commissioners
court of each county [to] classify each public road in the county as a frrst~class, second-class, or third-class road" and
establishing standards for each class of road); 251.051(a)(I) (imposing duty on the commissioners court to "order that
, public roads be laid out, opened, discontinued, closed, abandoned, vacated, or altered"); 251.053(a) (providing procedure
for a commissioners court to "declare as a public road" certain "neighborhood roads"). See also id § 251.002 (using
the term "public road" to refer to "[a] public road or highway that has been laid out and established according to law and
that has not been discontinued").
4County "public roads" are ultimately the property ofthe State. Robbins v. Limestone County, 268 S.W. 915,
918 (Tex. 1925). The Legislature, however, has granted the county commissioners courts "general control over the
roads" within their respective counties. City ofSan Antonio v. City ofBoerne, 111 S.W.3d 22, 28 (Tex. 2003). See, e.g.,
TEX. TRANSP. CODE ANN. §§ 251.016 (Vernon Supp. 2007) (stating that a "commissioners court of a county may
exercise general control over all roads, highways, and bridges in the county"); 251.051 (a)(I) (Vernon 1999) (stating that
(continued...)
The Honorable R. Lowell Thompson - Page 3 (GA-0659)
roads," not all public roads are part ofthe system ofroads maintained by the county. See Buffington,
177 S.W.3d at 210-11 (upholding finding that a road was a "public road" even though the county
had not "accepted" it for maintenance); City ofHouston v. Hughes, 284 S.W.2d 249,252-53 (Tex.
Civ. App.-Austin 1955, writ ref d n.r.e.) (holding that "[t]he laying out or maintenance of a road
by public authority is not essential to its being a public road"); Tex. Att'y Gen. Op. No. GA-0359
(2005) at 1-2 (explaining that "[a] public road is not necessarily part of the county road system").
To establish or accept a road in the county system ofroads through official action, the commissioners
court must act as a body through its minutes. Eastex Wildlife Conservation Ass 'n v. Jasper, 450
S.W.2d 904,907 (Tex. Civ. App.-Beaumont 1970, writrefd n.r.e.). Once a public road has been
established as a county road, the county has a general duty to maintain it. See TEx. TRANSP. CODE
ANN. § 251.051(c) (Vernon 1999) (providing that a commissioners court may not "discontinue" a
county road "until a new road designated by the court as a replacement is ready to replace it"); see
also id. § 251 '.001 (2) (defining "discontinue" as ceasing road maintenance).
You ask whether "the very action ofthe [1931] re-surveying and clarification ofthe boundary
line between the two counties-as a result of which the location of the southeasternmost segment
of what had been established as a county road of Ellis County came to be recognized as being a part
of Navarro County-resulted in the establishment.thereof as a county road of Navarro County."
Request Letter, supra note 1, at 1. You assert that a review of Navarro County records "failed to
reveal any document even suggesting that the [Commissioners Court] of Navarro County has ever
taken any affirmative action to include Slama Rd., or any part ofit, as a part ofthe system ofcounty
roads of Navarro County." Id at 5. 5 Also, you expressly exclude from your question "fact-driven
theories which might ... result in an authoritative resolution of the inquiry as to the legal status of
the road." Id at 4. Thus, we understand your question to be whether the 1931 order ofthe Navarro
County Commissioners Court, on its face, had the legal effect of establishing the portion of Slama
Road located in Navarro County as a county road in the system of roads maintained by Navarro
County.
To answer your question, however, first requires consideration ofthe 1902 order ofthe Ellis
County Commissioners Court establishing Slama Road. A commissioners court's jurisdiction to
establish a county road ends at the county line. Haverbekken v. Coryell County, 247 S.W. 1086,
4(... continued)
"[t]he commissioners court of a county shall ... order that public roads be laid out, opened, discontinued, closed,
abandoned, vacated, or altered"); 251.053(a) (providing for the establishment of "neighborhood roads"); 251.054
(providing for the establishment of road by jury of view).
5A submitted brief challenges certain aspects of your account of the history of Slama Road, particularly with
regard to events in 1931 and thereafter. See JMF Brief, supra note 2. We endeavor to answer legal questions in the
context ofthe facts presented but, as you point out, the opinion process does not resolve factual disputes. See Request
Letter, supra note 1, at4; Tex. Att'y Gen. Op. No. GA-0156 (2004) at 10 (stating that fact questions cannot be answered
in the opinion process). To answer a requestor's questions of law, then, we assume that the requestor's description of
the facts is correct. Tex. Att'y Gen. Op. No. GA-0457 (2006) at2 n.2. For purposes ofthis opinion, then, we consider
only the 1902 and 1931 orders described above.
The Honorable R. Lowell Thompson - Page 4 (GA-0659)
1088 (Tex. 1923).6 Thus, the Ellis County Commissioners Court did not have the authority to
establish a county road in Navarro County. The order of the Ellis County Commissioners Court
established Slama Road as a part ofthe Ellis County road system. The fact that a portion ofthe road
inadvertently extended into Navarro County did not make that portion a part ofthe Navarro County
road system. It is unlikely that a court would conclude that the actions of the Ellis County
commissioners court in excess of its jurisdiction are binding on Navarro County.
We next consider the 1931 order ofthe Navarro County Commissioners Court adopting the
resurvey report. The resurvey report establishes the location of tracts of land in the respective
counties but does not mention roads. The report refers to plats that accompanied the report at the
time, but apparently they are not now a part ofthe county record. Nothing in the order adopting the
survey purports to adopt roads or portions of roads as a part of the county road system. While it
appears to be a case of first impression, a court is likely to conclude that the 1931 order does not on
its face establish the portion of Slama Road located in Navarro County as a part of the Navarro
County road system. Cf Comm'rs Court v. Frank Jester Dev. Co., 199 S.W.2d 1004, 1007 (Tex.
Civ. App.-Dallas 1947, writ refd n.r.e.) (holding that filing ofa plat purporting to dedicate streets
and roads "does not make them public roads, with consequent obligation on the Commissioners'
Court" to assume their maintenance); Tex. Att'yGen. Ope No. GA-0594 (2008) at3 (stating that "[a]
commissioners court's approval of a plat ... does not convert private roads represented on the plat
into county roads or impose on the county a duty to maintain them").
60n the other hand, a county "may contract with [an] adjoining county for the extension [ofa farm-to-market
road in the adjoining county] and agree to pay all or part of the cost that the adjoining county necessarily incurs in
extending the road." TEX. TRANSP. CODE ANN. § 251.055 (Vernon 1999).
The Honorable R. Lowell Thompson - Page 5 (GA-0659)
SUMMARY
An order of the Navarro County Commissioners Court
adopting a resurvey report does not establish as a matter of law that
a portion of a road previously thought to be located in Ellis County
but actually located in Navarro County is a Navarro County road.
KENT C. SULLIVAN
First Assistant Attorney General
ANDREW WEBER
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
William A. Hill
Assistant Attorney General, Opinion Committee