Can a Texas county declare a public road across private land to reach a landlocked property?

Plain-English summary

Texas has a "neighborhood road" statute, section 251.053 of the Transportation Code, that helps landlocked property owners. If someone owns real property with no public road or other public means of access, they can apply to the county commissioners court, which (after a public hearing) can declare a line across nearby land as a public road, with damages assessed and compensation paid for the property taken. A county attorney asked the Attorney General whether that statute is unconstitutional, because a 1998 Attorney General opinion, DM-487, had said it violates the Texas Constitution's ban on taking private property for nonpublic uses.

The Attorney General revisited that conclusion and pulled it back. The Texas Constitution, article I, section 17, bars taking private property for a private use, but a statute is only "facially" unconstitutional if its terms always operate unconstitutionally, no matter the facts. Section 251.053 does not always operate that way. Nothing in its text prevents a commissioners court from using it to declare a public road that serves a real public purpose on proper facts. On top of that, the Legislature reenacted the statute three times, and courts presume the Legislature meant to comply with the constitution. So the statute can be applied constitutionally, which means it is not void on its face.

The Attorney General therefore concluded section 251.053 is not facially unconstitutional, and it overruled DM-487 to the extent that opinion said otherwise. The catch: a commissioners court may use the statute only if it acts consistently with article I, section 17, meaning the road must serve a legitimate public purpose and adequate compensation must be paid. The statute remains unconstitutional only to the extent it is used to take private property for a private use, and whether a particular use is a "public use" is ultimately a question for the courts.

Currency note

This opinion was issued in 2011. Subsequent statutory amendments, court decisions, or later Attorney General 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.

What the opinion meant for those who asked

Commissioners courts (as the opinion held for them): The opinion told them section 251.053 is not unconstitutional on its face, so they may declare a public road under it, but only if they act consistently with article I, section 17, meaning a legitimate public purpose and adequate compensation.

On the earlier opinion DM-487 (what the opinion changed): Under the opinion, DM-487 was overruled to the extent it suggested section 251.053 is facially unconstitutional or void in its entirety; the statute is unconstitutional only insofar as it would take private property for a private use.

On who decides "public use" (what the opinion described): The opinion explained that whether a particular use under section 251.053 is a public use is ultimately a question of law for the courts, not a question the statute resolves by itself.

Common questions

Is the Texas neighborhood-road statute (section 251.053) unconstitutional?
The opinion concluded it is not unconstitutional on its face. It can be applied in a constitutional way, so it is not void in its entirety.

Didn't a prior Attorney General opinion say the statute was void?
Yes, DM-487 (1998) suggested that. This opinion overruled DM-487 to the extent it said the statute is facially unconstitutional.

When can a commissioners court declare a public road under this statute?
The opinion concluded it may do so only consistently with article I, section 17 of the Texas Constitution, which requires a legitimate public purpose and payment of adequate compensation.

Who decides whether the road is really for a public use?
The opinion explained that the ultimate question of whether a particular use is a public use is a judicial question for the courts.

Background and statutory framework

Section 251.053 of the Transportation Code, addressing "neighborhood roads," authorizes a commissioners court to declare a line as a public road after an application by an owner of real property to which there is no public road or other public means of access, and a public hearing, with damages assessed for opening the road. Tex. Transp. Code Ann. § 251.053 (West 1999). (This statutory procedure is distinct from the common-law way of necessity. See, e.g., Koonce v. Brite Estate, 663 S.W.2d 451, 452 (Tex. 1984).) A 1998 opinion, DM-487, had reasoned the statute was unconstitutional and likely void because it could allow a taking of private property for a nonpublic purpose under article I, section 17 of the Texas Constitution.

A statute may be challenged facially or as applied. Tex. Workers' Comp. Comm'n v. Garcia, 893 S.W.2d 504, 518 n.16 (Tex. 1995). It is facially unconstitutional only if, by its terms, it always operates unconstitutionally. Barshop v. Medina Cnty. Underground Water Conservation Dist., 925 S.W.2d 618, 623, 627 (Tex. 1996). Section 251.053 is unconstitutional only to the extent it seeks to authorize the taking of private property for private use. Maher v. Lasater, 354 S.W.2d 923, 925 (Tex. 1962). Because the Legislature reenacted the substance of the statute three times, and is presumed to intend compliance with the constitution, Tex. Gov't Code Ann. § 311.021(1) (West 2005), the Attorney General assumed a commissioners court would exercise the power consistently with article I, section 17. Nothing in the statute's terms precludes using it to declare a public road for a legitimate public purpose on proper facts. The Attorney General therefore concluded section 251.053 is not facially unconstitutional and overruled DM-487 to the extent it suggested otherwise. (Article I, section 17 was substantially rewritten in 2009, and as amended expressly excludes taking property for economic development or to enhance tax rolls as a "public use." Tex. Const. art. I, § 17(a); id. § 17(b).)

Citations

Statutes:

• Tex. Transp. Code Ann. § 251.053 (West 1999)
• Tex. Const. art. I, § 17
• Tex. Const. art. I, § 17(a)
• Tex. Const. art. I, § 17(b)
• Tex. Gov't Code Ann. § 311.021(1) (West 2005)

Cases:

• Koonce v. Brite Estate, 663 S.W.2d 451, 452 (Tex. 1984)
• Tex. Workers' Comp. Comm'n v. Garcia, 893 S.W.2d 504, 518 n.16 (Tex. 1995)
• Barshop v. Medina Cnty. Underground Water Conservation Dist., 925 S.W.2d 618, 623, 627 (Tex. 1996)
• Maher v. Lasater, 354 S.W.2d 923, 925 (Tex. 1962)

AG opinions referenced:

• Tex. Att'y Gen. Op. No. DM-487 (1998)
• Tex. Att'y Gen. Op. No. WW-1368 (1962)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0835
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2011/ga0835.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

January 25, 2011

The Honorable Joel D. Littlefield Opinion No. GA-0835
Hunt County Attorney
Post Office Box 1097 Re: Constitutionality of Texas Transportation
Greenville, Texas 75403-1097 Code section 251.053, concerning a commissioners
court's declaration of a public road (RQ-0900-GA)

Dear Mr. Littlefield:

You ask whether section 251.053 of the Transportation Code, concerning commissioners court authority to declare a public road, is unconstitutional and void because it violates the prohibition in Texas Constitution article I, section 17 against taking private property for nonpublic uses.[1] Section 251.053, pertaining to "neighborhood roads," authorizes a commissioners court to declare a line as a public road, following an application by an owner of "real property to which there is no public road or other public means of access" and a public hearing on the application. TEX. TRANSP. CODE ANN. § 251.053 (West 1999) (further providing for assessment of damages incidental to opening the public road, including the right to be compensated for the taking).[2] You specifically reference an opinion of this office that discussed constitutional concerns about section 251.053, Attorney General Opinion DM-487 (1998). Request Letter at 2; Tex. Att'y Gen. Op. No. DM-487 (1998) at 4.

In DM-487, this office reasoned that section 251.053 is unconstitutional because it would allow a taking of private property for a nonpublic purpose in violation of article I, section 17 of the Texas Constitution. Tex. Att'y Gen. Op. No. DM-487 (1998) at 4.[3] Moreover, the opinion surmised that "a court today would find that [section 251.053] is void." Id.[4]

By concluding that section 251.053 is void in its entirety, DM-487 suggests that the statute is unconstitutional on its face. A statute may be challenged as unconstitutional on its face or as applied to a particular party or set of facts. Tex. Workers' Comp. Comm'n v. Garcia, 893 S.W.2d 504, 518 n.16 (Tex. 1995). A statute is facially unconstitutional if, by its terms, it always operates unconstitutionally. Barshop v. Medina Cnty. Underground Water Conservation Dist., 925 S.W.2d 618, 623, 627 (Tex. 1996). Section 251.053 of the Transportation Code is unconstitutional to the extent that it "seeks to authorize the taking of private property for private use." See Maher v. Lasater, 354 S.W.2d 923, 925 (Tex. 1962) (concerning predecessor statute). However, the Legislature has reenacted the substance of section 251.053 on three separate occasions.[5] In enacting a statute, the Legislature is presumed to intend compliance with the constitution. TEX. GOV'T CODE ANN. § 311.021(1) (West 2005). Accordingly, we must assume the Legislature intended a commissioners court to exercise its powers in section 251.053 consistently with article I, section 17 of the Texas Constitution. Nothing in the terms of section 251.053 precludes its use to declare a public road to serve a legitimate public purpose on proper facts.[6] We conclude that section 251.053 of the Transportation Code is not unconstitutional on its face, and Attorney General Opinion DM-487 is overruled to the extent it suggests otherwise. A commissioners court may exercise its authority to declare a public road under the section, but only if it does so consistently with article I, section 17 of the Texas Constitution.

SUMMARY

Section 251.053 of the Transportation Code is not unconstitutional on its face. A commissioners court may exercise its authority to declare a public road under the section, however, only if it does so consistently with article I, section 17 of the Texas Constitution, providing for the payment of adequate compensation. Attorney General Opinion DM-487 is overruled to the extent that it suggests that section 251.053 is unconstitutional on its face.

Very truly yours,

DANIEL T. HODGE
First Assistant Attorney General

DAVID J. SCHENCK
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

William A. Hill
Assistant Attorney General, Opinion Committee

[1] See Request Letter at 1-2 (available at http://www.texasattorneygeneral.gov).

[2] The procedure in section 251.053 is to be distinguished from common-law doctrines establishing a way of necessity. See, e.g., Koonce v. Brite Estate, 663 S.W.2d 451, 452 (Tex. 1984) ("Texas case law establishes that when a grantor conveys part of a tract of land while retaining the remaining acreage for himself there is an implied reservation of a right of way by necessity over the land conveyed, when no other access exists.").

[3] In 2009, this constitutional guarantee was substantially rewritten to provide, in pertinent part, that "[n]o 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, and only if the taking, damage, or destruction is for ... the ownership, use, and enjoyment of the property, notwithstanding an incidental use, by ... the State, a political subdivision of the State, or the public at large" or an entity with eminent domain authority. TEX. CONST. art. I, § 17(a). Moreover, as amended, article I, section 17 expressly excludes the taking of property for economic development or to enhance tax rolls as an acceptable "public use." Id. § 17(b).

[4] Attorney General Opinion DM-487 based its conclusion largely on Maher v. Lasater, a Texas Supreme Court opinion that considered an article I, section 17 challenge to a statutory predecessor of section 251.053. Tex. Att'y Gen. Op. No. DM-487 (1998) at 3-4 (citing Maher v. Lasater, 354 S.W.2d 923 (Tex. 1962)). In Maher, the court held that the statute was unconstitutional, not in its entirety, but rather, "[t]o the extent that the Article purports to authorize the taking of private property for private use." Id. at 926 (emphasis added). See also Tex. Att'y Gen. Op. No. WW-1368 (1962) at 3 (concluding that the holding in Maher limited the scope of the statute by reestablishing a requirement that, to declare a public road under the statute, the commissioners court must make a finding, based upon proper facts, that the road would be of sufficient public importance to warrant the taking).

[5] See Act of May 1, 1995, 74th Leg., R.S., ch. 165, §§ 1, 25, 1995 Tex. Gen. Laws 1025, 1155-56, 1871 (repealing article 6702-1 of the Revised Civil Statutes and enacting Transportation Code section 251.053); Act of July 3, 1984, 68th Leg., 2d C.S., ch. 8, § 1, 1984 Tex. Gen. Laws 29, 31-32; Act of May 20, 1983, 68th Leg., R.S., ch. 288, § 1, 1983 Tex. Gen. Laws 1431, 1435-37.

[6] The ultimate question of whether a particular use under Transportation Code section 251.053 is a public use is a question of law to be decided by the courts. See Maher, 354 S.W.2d at 925 (stating that "the ultimate question of whether a particular use is a public use is a judicial question to be decided by the courts").