Untitled Texas Attorney General Opinion

The Attorney General of Texas
“H MAlTOX Decenlher 21, 1984
I
torney General
: proms cowl Bulkmg Eonorablc Mike Driscoll Opinion Ho. JM-262
0.Box12s48 Rerrir County Attonwy
4uetln. lx. 78711.2s4e 1001 Prceton, Suite WI Re: klaximum bond which a county
jl2/47.MSO1 may require of subdividers for
Rouaton. Texas 7700:!
1.x 010@7+1a7
IkopiU s12147saw
the construction and/or main-
retieace of roadr
Dear Hr. Driecoll:
You have requested an opinion from this office on the following
qu&tioa:
What 1; the maxicnm emouht of bond that . . .
[Harris] Cwnty may require of subdividere for the
proper construction and/or mainteoance of roads?
In the brief preparr,d by your office, you inform us that your inquiry
arises from an apparent conflict among four statutes -- erticles
6626a. 6626a.l. 670:!-1, V.T.C.S.. and the Rarria County Road Law, a
Specie1 Law ,of the Zbirty-third Legislature. Acta 1913, 33rd Leg.,
P-4 Bm4dwy. Bull4 312
44lcock.TX. 7mc14479
Local 6 Special Laws, ch. 17, et 64.
,An47.5230
Articlea 6626a and 6626a.l. two of the statutes forming the basis
of your inquiry, were! repealed in whole by the legisletura during the
m N. Tsnlh. SW9 B
CAllen. lx 7Mol.lMs
special sesrioa of 1984. Act6 1984. 68th Leg., 2nd C.S., ch. 8,
512m24!547 )2(b), et 145. The language of these articles, however, was reenacted
as aectione 2.401 and. 2.402 of the revised County Road and Bridge Act
(article 6702-1). Acts 1984. at 73-78. Consequently, the
conflict betveen‘artlcles 6626e. T 6 26e.l. end the forncr version of
sectloo 2.401 of tL! original County Road sod Bridge Act is oo longer
a matter of concern. The issue that does r-in for our consideration
is whether revised article 6702-l or the iierris County Road Lav
controls in this incltancs.
The Harris County Road Law ves enacted by the Thirty-third
Legislature pursuan(: to itr authority granted by article VIII, section
9 of the Texa.r Conrtltutiw to pass local laws for the maintenance of
public reeds and hi:ghwaya. Special law eoaeted uader this constitu-
tional provieion supersede conflicting general laws. at least with
respect tb the county designated by the special law. Bill County v.
p. 1165
Honorable Hike Driscoll - Page 2 (JM-262)
Bryant 6 iiuffman. 16 S.U.2d 513 (Tu. 1929). Section 33 of the Aerris
County Road Lav achowledger thir rule:
The provisions of ,this Act are, and shall be,
held and construed ta be cumulative of all Ceneral
Laws of thia State, tm the subjecta treated of in
this Act, when not in conflict therewith. but in
case of such conflict this Act &all control as to
Rarris County.
In our opinion. however. where there is no conflict between e general
and a special lav, or where the special law la rilent on a rubject
treated explicitly by the gene:ral law. the general la? should not be
displaced.
Purthemore , special laws enacted under article VIII. section 9
of the Texas Constitution grent the comissionera court not only
control over the maintenance c’f cxiatian uublic roads. but also over
the laying out and constructim of new &lic roada by the county as
vell. Dallas County v. Plownq 91 S.W. 221. 222 (Tu. 1906). Public
roads are those roedr cst,ablished by the authority of the
comissioners court. by prascrl~ption, or dy dedication and-acceptance
by the county. Attorney Ceaerrk:L Opinion Jl4-200 (1984) and casee cited
therein. These principles. too. arc incorporated into relevant parts
of the Harris County Road Law:
Sec. 1. That. stibject to the provisions of
this Act. the Comis``ioners Court of Hart18 County
shall have cootrol of all roads, bridges, draiae.
ditches, culverts end all vorkr and constructions
incident to itr road,, bridges, and drainage, that
have been heretofore! laid out or conetructed, or
that mey hereafter 1~: laid out or constructed by
Harris County, or undm its direction.
Sec. 2. Subject t.o the provisions of this Act,
the Comissioners Cclurt of Harris County shall
have the power aad right to adopt such rules and
regulations for: (I,) the proper construction aad
maintenance of ita wads, bridges and draioage as
it may see proper. . . .
Sec. 3. Whenever any ~1~s. reguletioae or
course of procedure la connection with the
construction or maintenance of the roads, bridges,
and drain. of Uerria County may have been adopted,
they shell thereupon be reduced to writing. . . .
. . . .
‘>. 1166
Ronorable Hike Driscoll - Pege 3 (JX-262)
Sec. 16. The Comissioaers Court shall have
control of all mutters in connection with the
construction and maintenance of county roads,
bridges and drainage, except such aa it may from
time to time, by reeolutiou, delegete to the
precinct road supervisor, and than under such
rules and regulnt~lcma as it uay prescribe. and
subject to their rwall at its pleasure.
. . . .
Sec. 31-C. In acquiring rights-of-way for
roads in Harrio County, the Comissionerc Court
shall deterxiue t.b.e width of the rlght-of-vay
required, and lstal~:lish the lines and eligmeat of
the road. All of the field aoteo of roads so
established and deteruined shall be filed with the
Combsloners Cowt and be recorded on the Road
Log of Rarris County, end no expenditures shall be
made by the Commissioners Court upoa any road not
carried 011 the Road Log. The Comtissioners Court
may edopt a system: for carrying roads oa the Road
Log vith the required vidth of the right-of-vay to
be established by the Court. Provided, however,
no road shell bc carried on the Road Log or
ualntained by the county oa a right-of-vay leas
than twenty (20) feet nor more than 600 feet in
vidth unless the right-of-uey was laid out or
estebliehed on or after Jenuary 1, 1963. No
subdivision or p:.at of lands la Anrris County
outside of incorpcweted cities shall be flied for
record by the Cmnty Clerk of Rarrio County,
Texan, until such plat or subdivirioa bearr the
sigoature of the County Engineer to the effect
that the roads; em indicated on the plat. have uet
the requirements of the syatau adopted by the
Comisaioeers Cowt pursuant to this Section ae to
the width of the :r:Lght-of-vay and have a base and
surface of at leac;t twenty (20) feet in width with
the base and surface meeting the ainiuuu
requirements preswibed by the Coumiasioners Court
by order duly altered in the minutes of said
court, and that all requireuants of Aarrir County
aad the Rarris Comty Flood Control District as to
drainage have been complied vith.
The Harris County Road Lav does not require real estate sub-
dividers to post a bond for either the construction or mintenance of
roada in eubdivieions in Ha~:ris County. Section 9 of the law formerly
p. 1167
tlonorable Mike Driscoll - Page o (JR-262)
llloved the comaiesionera court of Rarris County to require a bond of
contractors for the construction of roads for the county; this
provision, however, was repealed la 1979. Ac ts 1979, 66th Leg., ch.
422. a t915. In any event, section 9 wee and remains applicable only
to roada built with county fur.ds - it does aot affect the COaatNC-
tion and uintenence of roads in subdivisioaa in Barris County that
are not built with county fuzis. Moreover, we are uneware of any
rules or regulations adopted by the county c~issioners requiring
bonds frou developers of subdiviaiona for such matters. Accordingly,
we uust resort to the general laws of the atate to answer your
question.
Article 6702-l. the County Road and Bridge Act.-wes revised and
reenacted during the special legislative session bf 1984. Acts 1984.
w, at 44. Sections 2,401(tl:1(7) and 2.402(d)(7) of the revised act
authorize the coamiaeionera caurt to require bonds for the constNc-
tion of roads in subdivisions. The com&rsionero court nay require
the owner(a) of the land to bmc divided or subdivided to post a bond
“for the proper construction of the roads and streets affected.”
conditioned upoa the construction of such roada in accordance with
specifications established by the coamiaaioaers court. Id. at 75. 78
(to be codlf led as V.T.C,,Ii. srt. 6702-l. H2.40r(d) (7) and
2,402(d)(7), respectively). The bond under either section “shall be
in an amount as uay be determined by the commissioners court not to
exceed the estimated cost of constructing . . . [the] roads or
atreete.” Id.
Section 2.401 appliee to all counties in this state except those
that elect to operate under swtion 2.402. Section 2.402 applies to
counties of uore than 2.2 milLion inhabitants which elect to operate
under this section and to cou:zties contiguous with a county of more
then 2.2 uillion population that also elect to operate under this
provision. We are unavere of uhether the Rarris County Coamissioners
Court her elected to operate under section 2.402; the uaxinum boad
acceptable under the County Road and Bridge Act, bowever. reuaias the
Sm. Therefore, in enaver to your question we conclude that Rarris
County nay require subdividers to rubuit a bond for the proper
construction of roads in subdlvi8ion6 in Barrio County in an amouat
not to exceed the estiuated ewt of construction for such roads and
streeta. We shall nov address the final issue raised by your inquiry.
In the brief prepared by your otfice. you argue that the
c&ssionera court uey also require subdividers to post a uaintenaace
bond as a condition of plat aplwoval or as e prareqaiaite to recording
on the county road log. You contend that section 31-C of the Rarris
County Road Law (quoted abovo:~. when read in conjunction with the
language of revised sections ,I.401 and 2.402 of the County Road and
Bridge Act, iuplicitly luthor:laca the county to require uaintanance
bonda in addition to construction bonds. Alternatively. you argue
p. 1168 L
Ilonorablc Hike Drircoll - Paga 5 (J%262)
that rime acceptance of rosda on the road log is equivalent to
acceptance of such roads for maintenance by the county, a maintenance
bond 16 l reasonable condlticm for such acceptance. We disagras with
both contentions.
First, we note that tt,c County Road and Bridge Act make6 no
provision for the acceptance l>f bonds ensuring proper maintenance of
roada in suhdivi6ions. And, in our opinion, such a bond cannot be
implied from the language o:[ the act; had the legislature intended
maintenance bonds to be mquired of subdividers. it would have
expressly required such bond a. Second, we believe that maintenance
bonds contravene the policy underlying county maintenance of roads.
By requiring subdividers to post bonds for the proper maintenance of
roads, the county would ef fectlvely make theas subdividers under-
writers of work for which the county ia ultimately responsible. The
county may not, in our 0pin:ton. employ this device to assure proper
maintenance; there are. hovever, alternatives that Aarria County may
lawfully utilize. See, e.fk-, V.T.C.S. arts. 6702-l. 53.102(e)(2)
(bond required of lov bidders on improvement contracts); 68121
(contracts for improvamenta ,of highways in counties vith over two
million inhabitants). Finally, ve do not agree that maintenance bonds
may be exacted as prerequiaitsa to recording on the road log or as a
prerequisite to plat approv.nl. In your brief you contend that
recording on the road log is equivalent to acceptance for county
maintenance. The mare filjng of a subdivision plst. however, is
imufficient to constitute: acceptance of a road for county
maintenance. Attorney Gener,k.l Opinion m-200 (1984). Similarly. we
believe that mere recordation on the road log la losufficient to
justify a maintenance bond, :?artlcularly since the county has at this
stage undertaken no obligatitc. to maintain the roads in question.
The liarrla Comty Comiaaionera Court may
require a bond from subdividers for the proper
construction of road6 in subdivisions in that
county in an amount not to exceed the estimated
coat of constructing such roads. The county may
not require subdividers to post maintenance bond
for such roada.
JIM HATTOX
Attorney General of Texas
p. 1169
Honorable Mike Driacoll - P#~g;e6 (JM-262)
TC+lCBEgN
First Aaaiatant AttorneyGenc!ral
DAVID R. RICHAFDS
Executive Aaaiatant Attorney General
RICR GILPIN
Chairman. Opinion Committee
Prepared by Rick Cilpin
Amiatent Attorney General
APPROVED:
OPINIONCOMMITTEE
Rick Gilpin. Chalrman
Colin Carl
Susan Garrison
Tooy Guillory
Jim Moellinger
Jenoifer Riggs
Nancy Sutton
p. 1170