Does a Texas county have to maintain private subdivision roads it approved on a plat?

TX AG Opinion GA-0594: Must a county maintain private subdivision roads it approved on a plat?

Plain-English summary

The Hood County Attorney asked whether the county was responsible for maintaining roads in residential subdivisions, specifically the roads in Hill Country Estates, a subdivision whose plat the commissioners court approved in 1983. The county builds and controls county roads, and that authority comes with a duty to keep county roads safe. But the question was whether these particular subdivision roads were ever county roads to begin with.

The Attorney General concluded they were not, and that the county had no duty to maintain them. Approving a subdivision plat for filing is a ministerial act that lets the plat go into the county records; it does not turn the private roads drawn on the plat into county roads or impose a maintenance duty. For a county with a population of 50,000 or fewer, Transportation Code chapter 281 spells out the only ways a county can acquire a public interest in a private road: purchase, condemnation, dedication, or adverse possession. Nothing suggested Hood County bought or condemned these roads. Dedication, under chapter 281 and the 1981 predecessor law that applied when the plat was filed, requires an explicit, written communication to the commissioners court voluntarily granting the road for public use, and the statute abolished the old common-law doctrine of implied dedication in smaller counties. The Hill Country Estates plat documents pointed in opposite directions: a note on the map said the owner dedicated the roads to public use but that the 60-foot roads were not maintained by the county, while the attached restrictions said all roads would be private and not maintained by the county and would be paid for by a per-tract assessment. Given those conflicting statements, the opinion could not find the explicit written grant the statute requires, so no dedication to Hood County was shown.

The opinion added a second, independent point: even a road that has been dedicated does not become a county road until the commissioners court accepts it. Dedication is just an offer, and approving a plat that contains a dedication is not acceptance of it. No acceptance by the Hood County commissioners court was shown. The county attorney also asked what happens if a single commissioner, without the court's approval, sends the county road crew to repair one subdivision road, or does so more than once. The answer did not change. Maintaining a private road with public funds does not establish adverse possession, and individual members of a commissioners court have no authority to bind the county by acting separately. So a commissioner's maintenance of private roads in Hill Country Estates imposed no obligation on the county to maintain them.

Currency note

This opinion was issued in 2008. 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.

Transportation Code chapter 281, Local Government Code chapter 232, and the case law on road dedication and acceptance cited here may have changed since 2008, and this opinion turned on a plat filed in 1983. Confirm the current statutes and the specific plat record before relying on this analysis.

Who this opinion affected (as of 2008)

Counties of 50,000 or fewer people: The opinion told them that approving a subdivision plat does not make them responsible for the roads, and that they take on a private road only through purchase, condemnation, an explicit written dedication accepted by the court, or a court judgment of adverse possession.

Commissioners courts and individual commissioners: The opinion stressed that a single commissioner cannot bind the county by sending the road crew to fix private roads, and that public-fund maintenance does not create adverse possession.

Subdivision property owners and developers: The opinion illustrated that roads marked "private" on a plat, and funded by owner assessments, stay the owners' responsibility unless and until the county formally accepts them. Conflicting plat language can defeat a claim that the county took the roads.

Common questions

Did approving the plat make the roads county roads?
No. The opinion explained that a commissioners court's approval of a plat for filing does not convert private roads into county roads or accept any dedication of them.

What are the only ways a small county can take over a private road?
Under Transportation Code chapter 281, purchase, condemnation, dedication (by explicit written communication to the commissioners court, then accepted), or adverse possession (since 1985, only by a court's final judgment). Implied dedication was abolished for these counties in 1981.

If a commissioner uses the county crew to fix a subdivision road, does the county now have to maintain it?
No. Maintaining a private road with public funds does not establish adverse possession, and an individual commissioner cannot bind the county by acting without the commissioners court.

Background and statutory framework

The Legislature delegated to commissioners courts the authority to build, maintain, and control county roads, which carries a duty to keep county roadways safe (Tex. Transp. Code Ann. §§ 251.003, 251.016; City of San Antonio v. City of Boerne, 111 S.W.3d 22, 31-32 (Tex. 2003)). Local Government Code chapter 232 governs county subdivision regulation, including plat requirements, road specifications, and bonds (Tex. Loc. Gov't Code Ann. §§ 232.001, 232.002(a), 232.003(1)-(4), 232.004(5), 232.0045, 232.021(8); Tex. Prop. Code Ann. § 12.002). Once an applicant complies with the requirements, the commissioners court has a ministerial duty to approve the plat, but approval does not convert private roads into county roads or impose a maintenance duty (Comm'rs Ct. v. Frank Jester Dev. Co., 199 S.W.2d 1004, 1007 (Tex. Civ. App.-Dallas 1947, writ ref'd n.r.e.)).

Acquisition of a public interest in a private road in a county of 50,000 or fewer is governed by Transportation Code chapter 281 and its 1981 predecessor, which allow only purchase, condemnation, dedication, or adverse possession (Tex. Transp. Code Ann. §§ 281.001, 281.002; Act of June 1, 1981, 67th Leg., R.S., ch. 613, 1981 Tex. Gen. Laws 2412). Dedication requires an explicit, written communication to the commissioners court of a voluntary grant for public use, abolishing implied dedication in smaller counties as of 1981 (Tex. Transp. Code Ann. § 281.003; Lindner v. Hill, 691 S.W.2d 590, 592 (Tex. 1985)), and a dedication must be accepted on the public's behalf (Ford v. Moren, 592 S.W.2d 385, 390 (Tex. Civ. App.-Texarkana 1979, writ ref'd n.r.e.); Aransas County v. Reif, 532 S.W.2d 131, 134 (Tex. Civ. App.-Corpus Christi 1975, writ ref'd n.r.e.)). Recording a plat showing roads is not, by itself, a dedication, and a dedicated road is not a county road until the court accepts it (Miller v. Elliott, 94 S.W.3d 38, 45 (Tex. App.-Tyler 2002, pet. denied); Langford v. Kraft, 498 S.W.2d 42, 49 (Tex. Civ. App.-Beaumont 1973, writ ref'd n.r.e.; writ dism'd w.o.j.)). Maintenance with public funds does not establish adverse possession (Tex. Transp. Code Ann. § 281.004; Act of May 27, 1985, 69th Leg., R.S., ch. 509, § 1, 1985 Tex. Gen. Laws 2099), and individual commissioners cannot bind the county by separate action (Ex parte Conger, 357 S.W.2d 740, 743 (Tex. 1962); Canales v. Laughlin, 214 S.W.2d 451, 455 (Tex. 1948)). Plat dedications and restrictive covenants are construed under contract rules and may not be resolvable in an opinion (Ostrowski v. Ivanhoe Prop. Owners Improvement Ass'n, Inc., 38 S.W.3d 248, 252 (Tex. App.-Texarkana 2001, pet. denied)).

Citations

Statutes:

• Tex. Transp. Code Ann. §§ 251.003 (Vernon 1999); 251.016 (Vernon Supp. 2007); 281.001-281.005 (Vernon 1999)
• Tex. Loc. Gov't Code Ann. §§ 232.001; 232.002(a); 232.003(1)-(4); 232.004(5); 232.0045; 232.021(8) (Vernon 2005)
• Tex. Prop. Code Ann. § 12.002 (Vernon Supp. 2007)
• Act of June 1, 1981, 67th Leg., R.S., ch. 613, §§ 1, 2, 5, 6, 1981 Tex. Gen. Laws 2412
• Act of May 27, 1985, 69th Leg., R.S., ch. 509, § 1, 1985 Tex. Gen. Laws 2099

Cases:

• City of San Antonio v. City of Boerne, 111 S.W.3d 22, 31-32 (Tex. 2003)
• Comm'rs Ct. v. Frank Jester Dev. Co., 199 S.W.2d 1004, 1007 (Tex. Civ. App.-Dallas 1947, writ ref'd n.r.e.)
• Lindner v. Hill, 691 S.W.2d 590, 592 (Tex. 1985)
• Ford v. Moren, 592 S.W.2d 385, 390 (Tex. Civ. App.-Texarkana 1979, writ ref'd n.r.e.)
• Aransas County v. Reif, 532 S.W.2d 131, 134 (Tex. Civ. App.-Corpus Christi 1975, writ ref'd n.r.e.)
• Miller v. Elliott, 94 S.W.3d 38, 45 (Tex. App.-Tyler 2002, pet. denied)
• Langford v. Kraft, 498 S.W.2d 42, 49 (Tex. Civ. App.-Beaumont 1973, writ ref'd n.r.e.; writ dism'd w.o.j.)
• Ex parte Conger, 357 S.W.2d 740, 743 (Tex. 1962)
• Canales v. Laughlin, 214 S.W.2d 451, 455 (Tex. 1948)
• Ostrowski v. Ivanhoe Prop. Owners Improvement Ass'n, Inc., 38 S.W.3d 248, 252 (Tex. App.-Texarkana 2001, pet. denied)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0594
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2008/ga0594.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts may remain - the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

January 17, 2008

The Honorable R. Kelton Conner
Hood County Attorney
1200 West Pearl Street
Granbury, Texas 76048

Opinion No. GA-0594

Re: Whether Hood County is responsible for maintaining certain subdivision roads (RQ-0606-GA)

Dear Mr. Conner:

You ask whether Hood County is responsible for maintaining roads in residential subdivisions within the county, in particular the roads in Hill Country Estates.[1] 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 of San Antonio v. City of Boerne, 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 11 on 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).

You state that the Hood County Commissioners Court approved the plat on September 26, 1983. See id. 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 id. 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 of each street or road. See TEX. LOC. GOV'T CODE 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 id. § 232.004(5); see also id. § 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 plat[3] of the subdivision prepared in accordance with section 232.001 if he divides it to lay out:

(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, parks, 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 id. § 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 of the county where the land is 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 id. 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 ref'd n.r.e.).

A commissioners 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 id. 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 of 50,000 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 id. § 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 id. § 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 of purchase, 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 of chapter 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 of the 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 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 ref'd 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. Reif, 532 S.W.2d 131, 134 (Tex. Civ. App.-Corpus Christi 1975, writ ref'd 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."[5] 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 the 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 ref'd 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. Op. No. GA-0139 (2004) at 4. Again, you have provided no information or evidence suggesting that the commissioners court has accepted a dedication of roads 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 cannot 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, if a 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 of the 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 of the commissioners court have no authority to bind the county by their separate actions. See Ex parte 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.

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 maintenance of the road with public funds.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

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

Footnotes

[1] See 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].

[2] You ask if Attorney 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.

[3] Local 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. LOC. GOV'T CODE ANN. § 232.021(8) (Vernon 2005).

[4] The population of Hood County was 17,714 in 1980. See United States Census Bureau, U.S. Dep't of Commerce, Population of Counties by Decennial Census: 1900 to 1990, available at http://www.census.gov/population/cencounts/tx190090.txt (last visited Jan. 8, 2008).

[5] Instruments 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. Op. No. GA-0176 (2004) at 2 (this office does not construe the terms of a particular contract but will address applicable general legal principles).

[6] Two causes were reviewed in a single opinion.

[7] In view of our conclusion that no dedication of subdivision roads is shown, we need not address Attorney General Opinion GA-0513 (2007).