Untitled Texas Attorney General Opinion ( 2008 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
January 17, 2008
The Honorable R. Kelton Conner Opinion No. GA-0594
Hood County Attorney
1200 West Pearl Street Re: Whether Hood County is responsible for
Granbury, Texas 76048 maintaining certain subdivision roads
(RQ-0606-GA)
Dear Mr. Connor:
You ask whether Hood County is responsible for maintaining roads in residential
subdivisions within the county, in particular the roads in Hill Country Estates.! The Legislature has
delegated to the commissioners courts the authority to build, maintain and control county roads,
subject to statutory limits. See TEX. TRANSP. CODE ANN. §§ 251.003 (Vernon 1999) (commissioners
court may build and maintain county roads), .016 (Vernon Supp. 2007) (commissioners court may
exercise general control over all roads, highways, and bridges in the county). By granting a
commissioners court this authority, the Legislature imposed on it a duty to make the roadways safe
for public travel. See City ofSan Antonio v. City ofBoerne, 111 S.W.3d 22,31-32 (Tex. 2003).
In connection with your question about road maintenance, you submit documents from the
plat of Hill Country Estates consisting of a map and two pages of restrictions. See Request
Letter/Brief, supra note 1, at Exhibit C. The map includes a notation stating that the landowner
dedicates the roads and easements shown thereon to public use and that "[t]he 60 foot roads are not
maintained by the county." Id. (map attached to Exhibit C). A different provision is included in a
list of restrictions attached to the map:
Roads shall be constructed by seller and each tract shall be
assessed $30 per year for maintenance. All roads will be private and
will not be maintained by the County.
Id. (item lIon page 2 of Exhibit C) (filed for record by Hood County Clerk, September 26, 1983).
Another provision states that "[t]hese restrictions shall terminate 20 years from date hereof
unless extended by a majority vote of the property owners association." Id. (item 14 on page 2 of
Exhibit C).
lSee generally Letter and Brief from Honorable R. Kelton Conner, Hood County Attorney, to Honorable Greg
Abbott, Attorney General of Texas (July 20, 2007) (on file with the Opinion Committee, also available at
http://www.oag.state.tx.us) [hereinafter Request Letter/Brief].
The Honorable R. Kelton Conner - Page 2 (GA-0594)
You state that the Hood County Commissioners Court approved the plat on September 26,
1983. See ide at Exhibit B (Hood County Commissioners Court, Sept. 26, 1983 Meeting Minutes).
The minutes of the commissioners court's meeting for that date list as an item for discussion and
action "Subdivision Plats Presented for Approval." Id. All members of the commissioners court
voted in favor of a motion "to approve plat of THE HILL COUNTRY." Id. The minutes recorded
that other subdivision plats were approved and stated that "[n]one of the roads in said subdivisions
were accepted by the County." Id. In connection with this background, you first ask whether Hood
County is required to maintain the roads in Hill Country Estates. 2 See ide at 4 (Questions Presented).
We begin by· summarizing the law governing county regulation of subdivisions. Local
Government Code chapter 232 authorizes the commissioners court to establish requirements for
subdivisions, such as the width of right-of-way on streets or roads and specifications relating to the
construction ~f each street or road. See TEX. Loc. GOV'TCODE ANN. § 232.003(1)-(4) (Vernon
2005). The commissioners court may also require the landowner to execute a bond payable to the
county judge or his successors with the condition "that the roads and streets and the drainage
requirements for the subdivision will be constructed ... in accordance with the specifications
adopted by the court; and ... within a reasonable time set by the court." See ide § 232.004(5); see
also ide § 232.0045 (financial guarantee in lieu of bond). When the owner of land located outside
of city limits divides the land, he must ordinarily have a plat3 of the subdivision prepared in
accordance with section 232.001 ifhe divides it to layout:
(1) a subdivision of the tract, including an addition;
(2) lots; or
(3) streets, alleys, squares, parks, or other parts of the tract
intended to be dedicated to public use or for the use of purchasers or
owners of lots fronting on or adjacent to the streets, alleys, squares,
patks, or other parts.
Id. § 232.001(a).
The plat must be filed and recorded with the county clerk of the county in which the tract
is located, subject to the filing and recording provisions of Property Code section 12.002. See ide
§ 232.001 (d)-(e); see also TEX. PROP. CODE ANN. § 12.002 (Vernon Supp. 2007). As a prerequisite
to recording the plat with the county clerk, the commissioners court ofthe county where the land is
2you ask ifAttorney General Opinion GA-0513 (2007), which deals with a subdivision road in which the public
has acquired an interest, establishes county responsibility for Hood County subdivision roads. See Request Letter, supra
note 1, at 4.
3Local Government Code section 232.021 (8) defines "plat" as "a map, chart, survey, plan, or replat containing
a description of the subdivided land with ties to permanent landmarks or monuments." TEX. Lac. Gov'r CODE ANN.
§ 232.021(8) (Vernon 2005).
The Honorable R. Kelton Conner - Page 3 (GA-0594)
located must approve the plat. See TEX. Loc. GOV'T CODE ANN. § 232.002(a) (Vernon 2005). The
commissioners court may refuse to approve a plat if it does not meet the requirements prescribed by
or under chapter 232 or if any bond required under the chapter is not filed with the county. See ide
Once a person who seeks to file and record a plat has complied with the statutory requirements, the
commissioners court has a ministerial duty to approve the plat and thus authorize its filing. See
Comm'rs Ct. V. Frank Jester Dev. Co., 199 S.W.2d 1004,1007 (Tex. Civ. App.-Dallas 1947, writ
refd n.r.e.).
A commission~rs court's approval of a plat allows it to be filed in the county records, but it
does not convert private roads represented on the plat into county roads or impose on the county a
duty to maintain them. See ide Hood County's acquisition of a public interest in a private road is
governed by Transportation Code chapter 281, which applies to counties with a population of50,000
or less. See TEX. TRANSP. CODE ANN. § 281.001 (Vernon 1999). The predecessor of chapter 281,
adopted in 1981, applied to Hood County when the Hill Country Estates plat was filed in 1983.4 See
Act of June 1,1981, 67th Leg., R.S., ch. 613, § 6, 1981 Tex. Gen. Laws 2412, 2413 (current version
at TEX. TRANSP. CODE ANN. § 281.001 (Vernon 1999)). The predecessor of Transportation Code
section 281.002 provided that a county may not acquire any public interest in a private road except
by "(1) purchase; (2) condemnation; (3) dedication; or (4) adverse possession." See id § 2(a), at
2412 (amended 1985) (current version at TEX. TRANSP. CODE ANN. § 281.002 (Vernon 1999)). A
public interest once established in accordance with the predecessor law had to be recorded in the
records of the commissioners court of the county in which the road was located. See ide § 2(b), at
2412 (amended 1985) (current version at TEX. TRANSP. CODE ANN. § 281.005 (Vernon 1999)).
Under the predecessor law, neither the use of a private road by the public with the owner's
permission nor maintenance of a private road with public funds was sufficient to establish adverse
possession. See ide § 5, at 2413 (current version at TEX. TRANSP. CODE ANN. § 281.004 (Vernon
1999)). Since 1985, a county has been able to acquire a public interest in a private road by adverse
possession only with·a court's "final judgment of adverse possession." Act of May 27, 1985, 69th
Leg., R.S., ch. 509,§ 1,1985 Tex. Gen. Laws 2099,2099 (current version at TEX. TRANSP. CODE
ANN. § 281.002 (Vernon 1999)).
You have provided no information suggesting that Hood County obtained an interest in the
Hill Country Estates roads by the statutorily required methods ofpurchase, condemnation, or adverse
possession. We will thus consider whether the county acquired a public interest in these roads by
the remaining authorized method of dedication.
The predecessor ofchapter 281 defined "dedication" as "the explicit, written communication
to the commissioners court of the county in which the land is located of a voluntary grant ofthe use
of a private road for public purposes." Act of June 1, 1981, 67th Leg., R.S., ch. 613, § 1, 1981 Tex.
Gen. Laws 2412, 2412 (current version at TEX. TRANSP. CODE ANN. § 281.003 (Vernon 1999)). It
thereby abolished the common-law doctrine of implied dedication in counties with a population of
4The population of Hood County was 17,714 in 1980. See United States Census Bureau, U.S. Dep't of
Commerce, Population ofCounties by Decennial Census: 1900 to 1990, available at http://www.census.gov/population/
cencounts/txI90090.txt (last visited Jan. 8, 2008).
The Honorable R. Kelton Conner - Page 4 (GA-0594)
less than 50,000, as of its effective date of August 31, 1981. See Lindner v. Hill, 691 S.W.2d 590,
592 (Tex. 1985). A landowner's dedication of roads for public use will moreover not be effective
unless it is accepted on behalf of the public. See Ford v. Moren, 592 S.W.2d 385, 390 (Tex. Civ.
App.-Texarkana 1979, writ refd n.r.e.). "The recording of a map or plat which shows streets or
roadways thereon, without more, does not constitute a dedication, as a matter of law, of such streets
as public roadways." Id. at 390 (quoting Aransas County v. Rei/, 532 S.W.2d 131,134 (Tex. Civ.
App.-.Corpus Christi 1975, writ refd n.r.e.)); see Frank Jester Dev. Co., 199 S.W.2d at 1007.
As we have observed, a note on the plat states that "The Hill Country, Ltd. is the owner of
the land shown hereon and does hereby dedicate for public use the roads and easements as shown
on the above map" and that "[t]he 60 foot roads are not maintained by the county." Request
Letter/Brief, supra note 1, at Exhibit C (map attached to Exhibit C). However, the restrictions
attached to the plat include the conflicting statements that "[r]oads shall be constructed by seller and
each tract shall be assessed $30 per year for maintenance" and that "[a]ll roads will be private and
will not be maintained by the County." Id. (item 11 at page 2 of Exhibit C and attached map); see
generally Ford, 592 S.W.2d at 392 (there are many subdivisions in which the streets are owned and
maintained by the subdivision for the private use of persons owning lots in the subdivision). Yet
another provision states that "[t]hese restrictions shall terminate 20 years from date hereof unless
extended by a majority vote of the property owners association." Request Letter/Brief, supra note
1, at Exhibit C (item 14 at page 2 of Exhibit C). Given the conflicting statements on the plat and in
the restrictions, we cannot say that there is an "explicit, written communication to the commissioners
court ... of a voluntary grant of the use of a private road for public purposes."s See Act of June 1,
1981, 67th Leg., R.S., ch. 613., § 1, 1981 Tex.. Gen. Laws 2412, 2412 (current version at TEX.
TRANSP. CODE ANN. § 281.003 (Vernon 1999)). We see no basis in the information you have
provided for concluding that the roads in Hill Country Estates were dedicated to Hood County.
Moreover, 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 t,he county road system. See
Miller v. Elliott, 94 S.W.3d 38, 45 (Tex. App.-Tyler 2002, pet. denied); Frank Jester Dev. Co., 199
S.W.2d at 1006-07. "[D]edication is a mere offer" and a commissioners court's approval of a plat
filing that contains a dedication does not constitute an acceptance of the dedication. Langford v.
Kraft, 498 S.W.2d 42,49 (Tex. Civ. App.-Beaumont 1973, writ refd n.r.e.; writ dism'd W.O.j.6).
Until a county, through its commissioners court, accepts a public interest in a road dedicated in a
plat, that road is not a county road. See Miller, 94 S.W.3d at 45; Frank Jester Dev. Co., 199 S.W.2d
at 1006-07; Tex. Att'y Gen. Ope No. GA-0139 (2004) at 4. Again, you have provided no
information or evidence suggesting that the commissioners court has accepted a dedication ofroads
5Instruments such as dedications and restrictive covenants are subject to the general rules of contract
construction. Ostrowski v. Ivanhoe Prop. Owners Improvement Ass 'n, Inc., 38 S.W.3d 248,252 (Tex. App.-Texarkana
2001, pet. denied). Thus, it may not be possible to construe them in an attorney general opinion. See Tex. Att'y Gen.
Ope No. GA-0176 (2004) at 2 (this office does not construe the terms ofa particular contract but will address applicable
general legal principles).
6Two causes were reviewed in a single opinion.
The Honorable R. Kelton Conner - Page 5 (GA-0594)
in the Hill Country Estates subdivision. As already indicated, the commissioners court's approval
of a plat for filing does not constitute acceptance of a dedication. See Ford, 592 S.W.2d at 390,
Frank Jester Dev. Co., 199 S.W.2d at 1007. In answer to your first question, we c'annot conclude
that these roads are county roads or that the commissioners court has any duty to provide for their
maintenance. 7
You also ask a second and third question, which we will answer together:
If a county is not required to maintain the roads in a subdivision
under Question 1, ifa county commissioner-without the approval of
the commissioners' court-uses the county road crew to repair one
road in such a subdivision, is the county subsequently obligated to:
(a) Maintain only the road or portion of the road repaired at the
request of the commissioner; or
(b) Maintain all of the roads in the subdivision?
If evidence subsequently shows that the commissioner in Question 2
performed work on more than one road and/or on more than one
occasion, would that alter your opinion concerning the obligation of
Hood County to maintain the subdivision roads?
Request Letter, supra note 1, at 4.
As we have already noted, Transportation Code section 281.002 and its predecessor provide
that a county may not acquire a public interest in a private road except by purchase, condemnation,
dedication, or adverse possession. See TEX. TRANSP. CODE ANN. § 281.002 (Vernon 1999); Act of
June 1, 1981, 67th Leg., R.S., ch. 613, § 2, 1981 Tex. Gen. Laws 2412, 2412. Purchase and
condemnation are not at issue here, and we have determined in answer to your first question that
dedication ofthe Hill Country Estates roads to the public is not demonstrated by the information you
have provided. Under Transportation Code section 281.004 and its predecessor, maintenance of a
private road with public funds does not establish adverse possession of the road. See TEX. TRANSP.
CODE ANN. § 281.004 (Vernon 1999); Act of June 1,1981, 67th Leg., R.S., ch. 613, § 5,1981 Tex.
Gen. Laws 2412, 2413. Moreover, individual members ofthe commissioners court have no authority
to bind the county by their separate actions. See Exparte Conger, 357 S.W.2d 740, 743 (Tex. 1962),
Canales v. Laughlin, 214 S.W.2d 451, 455 (Tex. 1948). We conclude that a county commissioner's
maintenance of private roads in Hill Country Estates does not impose on Hood County any
obligation to maintain those roads.
7In view of our conclusion that no dedication of subdivision roads is shown, we need not address Attorney
General Opinion GA-0513 (2007).
The Honorable R. Kelton Conner - Page 6 (GA-0594)
SUMMARY
A commissioners court's approval of the subdivision plat
for filing does not constitute county acceptance of a dedication of
roads depicted on the plat. Under Transportation Code chapter 281
counties with a population of 50,000 or less may acquire a public
interest in a private road only according to the specific methods set
out in that chapter. A road may be dedicated to a county subject to
chapter 281 only by an explicit, written communication to the
commissioners court. Adverse possession cannot be shown by
~aintenance of the road with public funds.
KENT C. SULLIVAN
First Assistant Attorney General
ANDREW WEBER
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Susan L. Garrison
Assistant Attorney General, Opinion Committee