Can a Texas county take over and maintain the private roads in a gated subdivision?

Plain-English summary

Bastrop County Criminal District Attorney Charles D. Penick asked whether the county commissioners court could accept and then maintain the roads inside a gated subdivision. The subdivision sat outside any city, its roads were wide and paved to subdivision standards, and locked gates limited the roads to residents and their guests, though the residents paid the same county road-and-bridge taxes as everyone else. The developer had submitted a plat for approval but the county had not yet acted on it.

The Attorney General gave a yes-but answer. A county may accept a dedication of private subdivision roads, but acceptance changes their legal character: they stop being private and become public county roads. That distinction mattered because a county has authority to construct and maintain public roads, not private ones. There is a narrow constitutional exception, article III, section 52f, letting counties of 5,000 or fewer people maintain private roads for a reasonable charge, but Bastrop County's population (38,263 in the 1990 census) put it well outside that exception. So while the roads stayed private, the county could not touch them; once dedicated and accepted as public, the county could maintain them at county expense.

The consequence for the subdivision was the part residents might not expect. A public road has to be kept free of obstructions, and the owner of land on both sides of a public road cannot restrict its use by putting a gate across it. The opinion concluded that once the subdivision's roads became public, the property owners could no longer block them with a locked gate. In other words, the county could take over and maintain the roads, but the trade-off was that the gated, residents-only character of the subdivision's roads would end and the public would have access.

Currency note

This opinion was issued in 2000. 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.

Background and statutory framework

The opinion moved through three steps: county authority over roads, how a private road becomes public, and what public status requires. On authority, Transportation Code section 251.003(a) lets a commissioners court construct and maintain public roads. Counties otherwise lack power to build or maintain private roads, a limit the opinion supported with Ex parte Conger and Godley v. Duval County (county labor, materials, and equipment may not be used for other than public use), subject only to the small-county exception in article III, section 52f, which did not reach Bastrop County.

On conversion, a private road becomes a public county road when the owner dedicates it for public use and the commissioners court accepts the dedication, as discussed in Priolo v. City of Dallas; "dedication" means setting land apart for public use. The mechanism here was the subdivision plat under chapter 232 of the Local Government Code. An owner subdividing a tract outside a city's limits must prepare a plat showing lots, streets, and other parts intended for public use (section 232.001), submit it to the commissioners court for approval where the land is outside any city's extraterritorial jurisdiction, and then file it with the county clerk (Property Code section 12.002), with related provisions on timely approval and extraterritorial plats in sections 232.0025 and 242.001. Generally a developer may not sell lots by the subdivision's description until the plat is approved and recorded.

On the consequence of public status, Transportation Code section 251.008 requires public roads to be kept free of obstructions, and Penal Code section 42.03 makes obstructing a passage an offense, though section 251.010 allows gates on third-class and neighborhood roads. The opinion relied on Perry v. Jaggers for the rule that an owner of land on both sides of a public road cannot restrict its use with a gate over the right of way. Putting the steps together, the opinion concluded the county could accept the dedication and maintain the resulting public roads, but the owners could no longer keep them behind a locked gate.

Common questions

Can a county maintain the private roads in a gated subdivision as they are?
No. The opinion concluded a county generally may maintain only public roads, not private ones, so it cannot maintain the subdivision's roads while they remain private.

How do the roads become public?
The owner dedicates them for public use, usually by filing an approved subdivision plat under chapter 232 of the Local Government Code, and the commissioners court accepts the dedication. At that point the roads become public county roads.

Once the county takes over, can residents keep the gate?
No. The opinion concluded that public roads must be free of obstructions and a landowner cannot block a public road, so the owners may no longer keep a locked gate across the now-public roads.

Was there any exception that would have let the county maintain private roads?
Only the small-county exception in article III, section 52f of the Texas Constitution, for counties of 5,000 or fewer people charging a reasonable fee. Bastrop County's population was far above that, so it did not apply.

Citations

Statutes: Tex. Transp. Code Ann. §§ 251.003(a), 251.008, and 251.010 (Vernon 1999); Tex. Const. art. III, § 52f; Tex. Loc. Gov't Code Ann. § 232.001(a), (b) and §§ 232.0025, 242.001 (Vernon Supp. 2000); Tex. Prop. Code Ann. § 12.002 (Vernon Supp. 2000); Tex. Pen. Code Ann. § 42.03 (Vernon 1994); and chapter 232 of the Local Government Code.

Cases: Ex parte Conger, 357 S.W.2d 740 (Tex. 1962); Godley v. Duval County, 361 S.W.2d 629 (Tex. Civ. App.-San Antonio 1962, no writ); Priolo v. City of Dallas, 257 S.W.2d 947 (Tex. Civ. App.-Dallas 1953, writ ref'd n.r.e.); Perry v. Jaggers, 9 S.W.2d 143 (Tex. Civ. App.-Waco 1928, writ dism'd w.o.j.).

Prior Attorney General opinions discussed: JC-0016 (1999), DM-13 (1991), JM-334 (1985), JM-317 (1985), and JM-200 (1984).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0172
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2000/jc0172.pdf

Original opinion text

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

January 24, 2000

The Honorable Charles D. Penick
Bastrop County Criminal District Attorney
804 Pecan Street
Bastrop, Texas 78602

Opinion No. JC-0172

Re: Whether a commissioners court may accept and maintain roads in a gated subdivision (RQ-0103-JC)

Dear Mr. Penick:

You ask whether a commissioners court may accept a dedication of roads in a gated subdivision and thereafter maintain the roads. The commissioners court may accept a dedication of private roads to the county, but the roads will no longer be private roads after the acceptance. While the county may not maintain private roads, it may maintain the roads after they become public roads. Access to a public road may not be restricted by the landowner or owners on either side of it. Thus, after the roads within a gated subdivision become public roads, the land owners may not block access to them by means of a locked gate.

Your inquiry concerns the roads within a gated subdivision in Bastrop County. You inform us that the subdivision is outside the boundaries or extraterritorial jurisdiction of any city. There are locked gates at the entrance to the subdivision, and only residents of the subdivision or their invited guests have access to the subdivision. The roads are over sixty feet wide and paved according to subdivision standards. Telephone Conversation with Honorable Charles D. Penick, Criminal District Attorney, Bastrop County (Dec. 16, 1999). The residents of the subdivision pay county road and bridge taxes, as do all persons owning real property in Bastrop County. See Letter from Honorable Charles D. Penick, Criminal District Attorney, Bastrop County, to Honorable John Cornyn, Texas Attorney General (Aug. 23, 1999) (on file with Opinion Committee). The developers have submitted a subdivision plat to the county for approval, but the county has not yet approved it. You ask whether the commissioners court may accept a dedication of roads in the gated subdivision and thereafter maintain them.

Bastrop County has authority to maintain public roads, but not private roads. TEX. TRANSP. CODE ANN. § 251.003(a) (Vernon 1999) (commissioners court of a county may construct and maintain public roads). Article III, section 52f of the Texas Constitution authorizes a county with a population of 5,000 or less, according to the most recent federal census, to construct and maintain private roads if it imposes a reasonable charge for the work. See TEX. CONST. art. III, § 52f. Bastrop County, with a population of 38,263 according to the 1990 federal census, is not within this provision. See U.S. BUREAU OF THE CENSUS, COUNTY AND CITY DATA BOOK 522 (1994). Aside from the narrow authority granted by article III, section 52f of the Texas Constitution, counties are not constitutionally or statutorily authorized to construct or maintain private roads. See generally Ex parte Conger, 357 S.W.2d 740 (Tex. 1962); Tex. Att'y Gen. Op. Nos. JC-0016 (1999) at 3, DM-13 (1991) at 3-4, JM-334 (1985) at 2, JM-200 (1984) at 2; see also Godley v. Duval County, 361 S.W.2d 629, 630 (Tex. Civ. App.-San Antonio 1962, no writ) (county labor, materials or equipment may not be used for other than public use). Accordingly, as long as the roads within the gated subdivision remain private roads, Bastrop County may not maintain them.

A private road will become a public county road if the owner dedicates it for public use and the commissioners court accepts the dedication. See generally Priolo v. City of Dallas, 257 S.W.2d 947, 952 (Tex. Civ. App.-Dallas 1953, writ ref'd n.r.e.). "Dedication" is a setting apart of land for public use. See id. at 953 n.2. We understand that the developer of the gated subdivision in Bastrop County will dedicate roads to the public by filing a subdivision plat as required by chapter 232 of the Local Government Code. Telephone Conversation with Honorable Charles D. Penick, Criminal District Attorney, Bastrop County (Dec. 16, 1999); see Tex. Att'y Gen. Op. Nos. JM-317 (1985), JM-200 (1984) (discussing procedures for dedicating roads for public use).

Preparing a subdivision plat is essential to developing residential lots. The owner of a tract of land located outside the limits of a city must have a plat of the subdivision prepared if he or she divides the tract into two or more parts to lay out:

(1) a subdivision of the tract;

(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.

TEX. LOC. GOV'T CODE ANN. § 232.001(a) (Vernon Supp. 2000). The plat must state, among other things, the dimensions of each street, or other part 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 street." Id. § 232.001(b). If the land is outside of the extraterritorial jurisdiction of any city, the landowner must submit the plat to the commissioners court for approval, and after the plat is approved, the landowner may file it for record in the county clerk's office. TEX. PROP. CODE ANN. § 12.002 (Vernon Supp. 2000); see also TEX. LOC. GOV'T CODE ANN. §§ 232.0025 (Vernon Supp. 2000) (timely approval of plats); 242.001 (approval by city and county of plat for subdivision in the extraterritorial jurisdiction of a city is generally required). In general, a developer may not sell lots using the subdivision's description in selling until the plat has been approved and filed for record with the clerk. See TEX. PROP. CODE ANN. § 12.002 (Vernon Supp. 2000) (restriction on selling not applicable where conveyance of real property is expressly contingent on approval and recording of final plat and purchaser is not given use of real property conveyed before recording of final plat).

When the commissioners courts approves the subdivision plat and all other steps necessary to effect the dedication are completed, the roads become public roads. See Tex. Att'y Gen. Op. Nos. JM-317 (1985), JM-200 (1984). As public roads, they may be maintained by the county, but they must also be free of all obstructions. See TEX. TRANSP. CODE ANN. § 251.008 (Vernon 1999); see TEX. PEN. CODE ANN. § 42.03 (Vernon 1994) (offense of obstructing a highway, street, or any other place used for passage of persons, vehicles, or conveyances); but see TEX. TRANSP. CODE ANN. § 251.010 (Vernon 1999) (gates allowed on third-class and neighborhood roads). The owner of land on both sides of a public highway has no authority to restrict use of it by placing a gate over the right of way. See Perry v. Jaggers, 9 S.W.2d 143, 145 (Tex. Civ. App.-Waco 1928, writ dism'd w.o.j.). Accordingly, in answer to your question, we inform you that the commissioners court may accept a dedication to the public of roads in a gated subdivision. The roads will thereby become public roads that the commissioners court may maintain at county expense, but the owners of property in the subdivision may no longer obstruct the roads with a locked gate.

SUMMARY

A commissioners court may accept a dedication to the county of private roads within a gated subdivision, but the roads will no longer be private roads after the acceptance. While the county may not maintain private roads, it may maintain the roads after they are dedicated as public roads. Access to a public road may not be restricted by the landowner or owners on either side of it. Thus, after the roads within a gated subdivision become public roads, the land owners may not block access to them by means of a locked gate.

Yours very truly,

JOHN CORNYN
Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Susan L. Garrison
Assistant Attorney General - Opinion Committee