Can a Texas county force a road across private land to reach a landlocked neighbor's property?

TX AG Opinion DM-0487: Can a county condemn land for a road to a landlocked owner?

Plain-English summary

Transportation Code section 251.053, the "neighborhood road" statute, lets a person whose property has no public road or other public access ask the county commissioners court, by sworn application, to establish an access road connecting the property to the county road system. If the court finds the applicant has no access, it may order the designated lines (or other lines it sets) to be a public road, and a landowner whose property is taken is entitled to compensation. The Kent County Commissioners Court received such an application from a landowner who could reach her property only over a neighbor's private road, on which she was not allowed to haul gravel. She wanted a public road so she could move gravel off her land. The Kent County Attorney, Howard Freemyer, asked whether she had "access" within the meaning of the statute and whether granting the road would be an unconstitutional taking.

The Attorney General did not decide what "access" means, because it concluded a court would likely find the entire neighborhood road statute invalid. Article I, section 17 of the Texas Constitution requires adequate compensation for private property taken for public use and, importantly, prohibits taking private property for private use at all. The neighborhood road statute traces back to former article 6711, which originally let a commissioners court establish such a road only if it was "of sufficient public importance," a public-purpose requirement. But a 1953 amendment removed that requirement and allowed the road on a mere finding that the applicant had "no means of access." The Texas Supreme Court held in Maher v. Lasater that, to the extent the amended statute authorizes taking private property for private use, it is unconstitutional and void.

The Attorney General walked through the case law. The Court in Maher rejected the argument that the Legislature could declare access for a landlocked owner to be a public purpose, holding that a legislative declaration cannot turn a private use into a public one and that whether a use is public is ultimately for the courts. It also rejected the idea that providing access to further a commercial enterprise (there, getting products of the soil and range into the community's economy) is a public purpose, and that merely guaranteeing a person access to property is a public purpose (relying on Phillips v. Naumann). The same result followed in Estate of Waggoner v. Gleghorn, striking down a different statute that gave a surrounded landowner an easement over neighboring land, because no one but the owner and his visitors would benefit. The neighborhood road statute has not been substantively amended since Maher; it was carried forward unchanged when the Legislature recodified it as section 251.053 in 1995 (an express non-substantive recodification). Because it still lacks a public-purpose requirement and courts have held it cannot be applied to its very object, the Attorney General concluded a county commissioners court may not take private property to establish a road under section 251.053.

Currency note

This opinion was issued in 1998. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The neighborhood road statute and Texas takings law have developed since 1998. Confirm the current statute and case law, and consult a lawyer, before relying on any rule about access roads to landlocked property.

Who this opinion affected (as of 1998)

Landlocked property owners seeking a public road: The opinion meant they could not get a county to condemn a neighbor's land for access under the neighborhood road statute, because the office viewed the statute as unconstitutional for lacking a public purpose.

County commissioners courts: The opinion advised them not to take private property to build a road under section 251.053.

Landowners facing a neighborhood road application across their property: The opinion supported their position that such a taking, for a private access purpose, was not authorized.

Common questions

Can a Texas county force a road across private land to reach a landlocked owner?
Under this opinion, no. The Attorney General concluded a county commissioners court may not take private property to establish a road under Transportation Code section 251.053, because the statute lacks a public-purpose requirement and is likely unconstitutional.

Why is the neighborhood road statute a problem?
The opinion explained that a 1953 amendment removed the requirement that the road be "of sufficient public importance," so the statute authorizes a taking with no public-purpose finding, which Article I, section 17 of the Texas Constitution forbids for private uses.

Does hauling gravel for a business make it a public purpose?
No. The opinion noted that the Texas Supreme Court in Maher rejected the argument that providing access to further a commercial enterprise serves a public purpose; getting products to market that way is still a private purpose.

What if the landowner truly has no other way out?
The opinion recognized the hardship but explained that, under the case law, merely guaranteeing one owner access to property is not a public purpose, so the statute could not constitutionally accomplish its own object.

Background and statutory framework

Transportation Code section 251.053 lets an owner of property with no public road or other public access apply to the commissioners court to establish an access road, and authorizes the court, on finding the applicant lacks access, to declare a public road, with compensation for any resulting damages. A "public road" for chapter 251 is one laid out and established according to law and not discontinued (Transportation Code § 251.002).

Article I, section 17 of the Texas Constitution provides that no person's property shall be taken, damaged, or destroyed for or applied to public use without adequate compensation, unless by the owner's consent. Beyond requiring compensation, it prohibits taking private property for private use (Marrs v. Railroad Comm'n, 177 S.W.2d 941 (Tex. 1944)).

Section 251.053 is a nonsubstantive 1995 recodification of former V.T.C.S. article 6702-1, section 2.006, which replaced former V.T.C.S. article 6711. Article 6711 originally allowed a road from private property to a public highway if the commissioners court deemed it "of sufficient public importance," a public-purpose finding. A 1953 amendment eliminated that requirement and authorized the road on a finding of "no means of access." The Texas Supreme Court, in Maher v. Lasater, 354 S.W.2d 923 (Tex. 1962), held the amended statute unconstitutional to the extent it authorizes taking private property for private use, reasoning that a legislative declaration cannot convert a private use into a public one, that whether a use is public is a judicial question, and that providing access to land to further a commercial enterprise or merely to guarantee a person access is not a public purpose (citing Phillips v. Naumann, 275 S.W.2d 464 (Tex. 1955)). The Court reached the same result in Estate of Waggoner v. Gleghorn, 378 S.W.2d 47 (Tex. 1964), striking down a statute granting a surrounded landowner an easement over neighboring land because no one else would benefit. (This office had earlier read Maher, in Attorney General Opinion WW-1368 (1962), to mean the power could be exercised only on a finding of sufficient public importance.) Because section 251.053 still lacks a public-purpose requirement and courts have held it cannot be applied to its very object, the Attorney General concluded it is void as applied to take private property for a neighborhood road.

Citations

Statutes and constitution:

• Tex. Transp. Code §§ 251.002, 251.053
• Former V.T.C.S. arts. 6711, 6702-1, § 2.006; art. 1377b, § 2
• Tex. Const. art. I, § 17

Cases:

• Marrs v. Railroad Comm'n, 177 S.W.2d 941 (Tex. 1944)
• Maher v. Lasater, 354 S.W.2d 923 (Tex. 1962)
• Phillips v. Naumann, 275 S.W.2d 464 (Tex. 1955)
• Estate of Waggoner v. Gleghorn, 378 S.W.2d 47 (Tex. 1964)

Prior Attorney General opinions:

• Attorney General Opinion WW-1368 (1962)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0487
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1998/dm0487.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Office of the Attorney General, State of Texas

DAN MORALES, ATTORNEY GENERAL

November 10, 1998

The Honorable Howard Freemyer
Kent County Attorney
Kent County Courthouse
Jayton, Texas 79528

Opinion No. DM-487

Re: Whether a commissioners court may establish a neighborhood road pursuant to Transportation Code section 251.053 (RQ-1209)

Dear Mr. Freemyer:

Your questions concern section 251.053 of the Transportation Code, which authorizes a county commissioners court to establish a "neighborhood road." Section 251.053 provides:

A person who owns real property to which there is no public road [Footnote: A "public road" for purposes of chapter 251 is a "public road or highway that has been laid out and established according to law and that has not been discontinued." Transp. Code § 251.002.] 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 § 251.053(b). Section 251.053 further provides:

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 or other 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 have access 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 I, section 17 of the Texas Constitution. Because we conclude that a court would likely find that the neighborhood road statute is invalid, we do not address your questions regarding what constitutes "access" under the statute.

Article I, section 17 of the Texas Constitution provides: "No person's property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person . . . ." This provision not only requires the payment of adequate compensation for private property taken for public use, but prohibits the taking of private property for private use. Marrs v. Railroad Comm'n, 177 S.W.2d 941, 949 (Tex. 1944).

Section 251.053, the current neighborhood road statute, is a nonsubstantive recodification of former V.T.C.S. article 6702-1, section 2.006, [Footnote: See Act of May 1, 1995, 74th Leg., R.S., ch. 165, §§ 1, 25, 1995 Tex. Gen. Laws 1025, 1155-56, 1871 (repealing V.T.C.S. article 6702-1, the County Road and Bridge Act, enacting Transportation Code section 251.053, and providing: "This Act is intended as a recodification only, and no substantive change in law is intended by this Act.").] which replaced V.T.C.S. article 6711. [Footnote: See Act of July 3, 1984, 68th Leg., 2d C.S., ch. 8, § 1, 1984 Tex. Gen. Laws 29, 31-32 (repealing V.T.C.S. article 6711 and reenacting and amending V.T.C.S. article 6702-1); Act of May 20, 1983, 68th Leg., R.S., ch. 288, § 1, 1983 Tex. Gen. Laws 1431, 1435-37 (repealing V.T.C.S. article 6711 and enacting the County Road and Bridge Act, V.T.C.S. article 6702-1).] 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." [Footnote: Act of March 20, 1930, 41st Leg., 5th C.S., ch. 62, § 1, 1930 Tex. Gen. Laws 207, 207.] 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. [Footnote: Act of May 26, 1953, 53d Leg., R.S., ch. 438, § 1, 1953 Tex. Gen. Laws 1054, 1055.] 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, 354 S.W.2d 923, 925 (Tex. 1962).

While the Maher opinion appears to suggest that the neighborhood road statute could be constitutionally applied if a public purpose is found, [Footnote: This office considered the effect of Maher in Attorney General Opinion WW-1368 (1962). We said: "[I]t is the opinion of this office that the powers granted the Commissioners Court by Article 6711, V.C.S., may be constitutionally exercised . . . only if the Commissioners Court makes a finding that the road to be established would be of sufficient public importance to warrant the taking of the land involved." Id. at 3.] 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, 354 S.W.2d at 925. While the legislature may have so declared, the court said, "a mere declaration by the Legislature cannot change a private use or private purpose into a public use or public purpose." Id. Instead, "the ultimate question of whether a particular use is a public use is a judicial question to be decided by the courts." Id.

The Maher court was unpersuaded by the argument that providing access to land to further a commercial enterprise serves a public purpose. [Footnote: You tell us that the Kent County applicant wishes to use the road to haul gravel from "substantial gravel deposits" located on her property, presumably in furtherance of a business enterprise.] 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 (citing Phillips v. Naumann, 275 S.W.2d 464 (Tex. 1955)).

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 in Phillips v. Naumann, 275 S.W.2d 464 (Tex. 1955), where it declined to find a public purpose for a road where "[t]he undisputed evidence discloses that the only persons who could be benefitted by the opening of this road are the Naumanns and persons who might desire to visit them." Maher, 354 S.W.2d at 925-26 (quoting Phillips, 275 S.W.2d at 467).

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, 378 S.W.2d 47 (Tex. 1964), the Supreme Court considered the constitutionality of V.T.C.S. article 1377b, section 2, which purported to grant to anyone who claimed the right to use real property surrounded by land of another an easement over the surrounding land for ingress to and egress from the surrounded property. Citing Maher and Phillips, the court found the statute unconstitutional, stating:

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. [Footnote: The Sixty-eighth Legislature repealed V.T.C.S. article 6711 and enacted the County Road and Bridge Act, V.T.C.S. article 6702-1, without substantive change. See Act of July 3, 1984, 68th Leg., 2d C.S., ch. 8, § 1, 1984 Tex. Gen. Laws 29, 31-32; see also Senate Transp. Comm., Bill Analysis, S.B. 24, 68th Leg., 2d C.S. (1984). The Seventy-fourth Legislature repealed V.T.C.S. article 6702-1 and recodified the neighborhood road provision as Transportation Code section 251.053. See Act of May 1, 1995, 74th Leg., R.S., ch. 165, §§ 1, 25, 1995 Tex. Gen. Laws 1025, 1155-56, 1871 (providing: "This Act is intended as a recodification only, and no substantive change in law is intended by this Act."). Again, no substantive change in the law was intended by the recodification.] It remains without a public purpose requirement for the taking of private property, in contravention of article I, section 17 of the Texas Constitution. While the Maher court seems to suggest that the statute might be constitutionally applied if a public purpose is found, courts have held that it cannot constitutionally be applied to achieve the very object for which it was enacted. Thus we believe a court today would find that the statute is void. We conclude, therefore, that a county commissioners court may not take private property for the purpose of establishing a road pursuant to Transportation Code section 251.053, the neighborhood road statute.

SUMMARY

A county commissioners court may not take private property for the purpose of establishing a road pursuant to Transportation Code section 251.053, the neighborhood road statute.

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