Judges: DAN MORALES, Attorney General of Texas
Filed Date: 11/10/1998
Status: Precedential
Modified Date: 7/6/2016
The Honorable Howard Freemyer Kent County Attorney Kent County Courthouse Jayton, Texas 79528
Re: Whether a commissioners court may establish a neighborhood road pursuant to Transportation Code section
Dear Mr. Freemyer:
Your questions concern section
A person who owns real property to which there is no public road1 or other means of public access may request that an access road be established connecting the person's real property to the county public road system by making a sworn application to the commissioners court requesting the court to establish the road.
Transp. Code §
If the [commissioners] court determines that the applicants do not have access to their real property and premises, the court may issue an order declaring the lines designated in the application, or other lines established by the court, to be a public road.
Id. § 251.053(d). A property owner who incurs damages as the result of such a commissioners court determination is entitled to compensation. Id. § 251.053(e).
You tell us that the Kent County Commissioners Court has received an application for the establishment of a neighborhood road. The applicant does not have access to her property by way of a public road, but neighboring landowners have permitted the applicant to use their private road to access the property for limited purposes. You state that the applicant wishes to transport gravel away from her land, but the private landowners do not permit the applicant to transport gravel on their road. The applicant seeks to have a public road established pursuant to section 251.053.
Subsection (b) of the neighborhood road statute authorizes an application for a public road when "there is no public road orother public means of access" to the applicant's property. Id. § 251.053(b) (emphasis added). Subsection (d), however, provides that an application for a neighborhood road may be granted if the commissioners court determines "that the applicants do not haveaccess to their real property and premises." Id. § 251.053(d) (emphasis added).
You ask whether the applicant has "access" to her land within the meaning of section 251.053(d) if the applicant has access only by way of another landowner's private road and if the applicant is prohibited from using the private road for a certain purpose. You also ask whether granting the applicant's request for establishment of a neighborhood road, and the taking of private property that would be required to establish the road, would violate article
Article
Section 251.053, the current neighborhood road statute, is a nonsubstantive recodification of former V.T.C.S. article 6702-1, section 2.006,2 which replaced V.T.C.S. article 6711.3
Former V.T.C.S. article 6711 authorized the establishment of a road from private property to a public highway if the commissioners court deemed the road to be "of sufficient public importance."4 As so written, the statute required a finding of public purpose for the taking of private property. However, in 1953 the statute was amended to eliminate the public purpose requirement and to authorize the establishment of the road upon a finding that the applicant had "no means of access" to his or her property.5 With respect to the constitutionality of the revised statute, the Texas Supreme Court held: "In so far as the amendment seeks to authorize the taking of private property for private use, it is unconstitutional and void." Maher v. Lasater,
While the Maher opinion appears to suggest that the neighborhood road statute could be constitutionally applied if a public purpose is found,6 the court found no public purpose in the very object that the statute is designed to accomplish; that is, the provision of a public road for a landlocked private property owner. In Maher, an applicant sought to have the county establish a public road across an adjacent landowner's private property. The applicant argued that by enacting the neighborhood road statute the legislature had declared "that a public purpose is served when land is taken to provide a roadway for a landowner who has no means of access to his land." Maher,
The Maher court was unpersuaded by the argument that providing access to land to further a commercial enterprise serves a public purpose.7 The applicant sought access to uninhabited grazing and pasture land, a small portion of which was suitable for cultivation. Id. at 924. "The only possible public purpose conceivable which the road in this case can serve is that of putting the products of the soil and the range . . . into the economy of the community." Id. at 926. The court held that taking private land for such a purpose would be an unconstitutional taking of private land for a private purpose. Id. at 926 (citingPhillips v. Naumann,
The Maher court also was unpersuaded by the argument that a public purpose is served by guaranteeing a person access to his or her property. Id. at 924. The court cited its opinion inPhillips v. Naumann,
A statute authorizing the taking of private land for a road to landlocked property was held unconstitutional on the same grounds. In Estate of Waggoner v. Gleghorn,
While respondent needs the [road] for his own convenience and that of his tenants and others who have occasion to be on the land north of the river, no one else will receive any direct benefit from the road. The economic use of such property will undoubtedly be facilitated by a ready means of access from the highway, but the public interest is not otherwise served in any way by the right of way which respondent seeks.
Id. at 49.
The neighborhood road statute has not been substantively amended since the Maher decision in 1962.8 It remains without a public purpose requirement for the taking of private property, in contravention of article
Yours very truly,
DAN MORALES Attorney General of Texas
JORGE VEGA First Assistant Attorney General
SARAH J. SHIRLEY Chair, Opinion Committee
Prepared by Barbara Griffin Assistant Attorney General