Can a large Texas county build or replace a cattle guard on a county road?

Plain-English summary

A cattle guard is a grid set into a road so vehicles can pass but livestock will not cross. Texas lets county commissioners build them on county roads, but the statute that grants this power, section 251.009 of the Transportation Code, opens by limiting it to counties with a population under 60,000. Webb County, which includes Laredo and had well over 100,000 residents, asked whether it could at least replace a cattle guard that had previously sat on a county road and was removed. The Attorney General said no.

The county's argument leaned on how the statute reads. Subsection (a) carries the under-60,000 limit and covers authorizing cattle guards. Subsection (d), which speaks of paying for construction out of the road and bridge fund, does not repeat the population cap. When the legislature recodified the old law into the Transportation Code in 1995, it dropped the phrase "coming under the provisions of this section" that had tied the spending provision to small counties. So the county asked whether subsection (d) now applies to everyone.

The opinion concluded it does not. The 1995 codification carried a declaration that it made "no substantive change in law." Under the Texas Supreme Court's Fleming Foods rule, such a declaration loses to clear statutory text only when the new wording is direct, unambiguous, and impossible to reconcile with the old law. Here the opinion found the text could be read consistently with prior law. Reading the section as a whole, every subsection refers back to the class set in subsection (a), and the repeated use of "the" commissioners court (rather than "a" commissioners court) points to that same already-defined class. So the 60,000 limit governs the entire section, and Webb County could not build or replace cattle guards under it.

Currency note

This opinion was issued in 2000. 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

The Webb County Attorney who asked (what the opinion held): The opinion answered that Webb County could not use section 251.009 to replace a removed cattle guard, because the statute's authority is confined to counties under 60,000 in population and Webb County is far larger.

Commissioners courts in large counties (what the opinion held for them): At the time, the opinion read the entire section, including the spending provision in subsection (d), as limited to small counties. A commissioners court in a county above 60,000 had no authority under this statute to construct cattle guards or pay for them from the road and bridge fund.

Commissioners courts in counties under 60,000 (what the opinion held for them): The opinion left their authority intact. For those counties, section 251.009 still allowed authorizing, building, and funding standard cattle guards on county roads of any class.

Common questions

Can a county with more than 60,000 people put a cattle guard on a county road under this statute?
No. The opinion concluded that section 251.009 of the Transportation Code applies only to counties with a population under 60,000, so a larger county like Webb County could not authorize or build one under it.

Does replacing an old cattle guard count differently from building a new one?
No. The opinion treated replacement as construction. Because the county had no authority to construct cattle guards under the statute, it had no authority to replace one either.

Didn't the 1995 recodification drop the population limit from the funding subsection?
It dropped some words, but the opinion held that did not change the meaning. The codification declared "no substantive change in law," and under the Fleming Foods rule the text could still be read consistently with the prior law that limited the whole scheme to small counties.

Why did the word "the" matter so much?
The opinion pointed out that subsections (b) and (d) refer to "the" commissioners court, not "a" commissioners court. That phrasing points back to the specific class of counties already defined in subsection (a), namely those under 60,000.

Background and statutory framework

Section 251.009 of the Transportation Code lets the commissioners court of a county with a population under 60,000 authorize cattle guards on county roads of any class, requires the court to adopt standard plans and specifications, makes nonconforming construction a misdemeanor, and permits the court to pay for construction from the county road and bridge fund (Tex. Transp. Code § 251.009). The provision was recodified in 1995 from former section 2.007 of article 6702-1 of the Revised Civil Statutes, which had expressly tied each subsection to counties "coming under the provisions of this section," meaning those under 60,000.

The 1995 codification declared that it made no substantive change in law. The opinion applied Fleming Foods v. Rylander, in which the Texas Supreme Court held that a "no substantive change" declaration yields to clear statutory text only when the recodified language is direct, unambiguous, and cannot be reconciled with the prior law. Reading section 251.009 as a whole under the ordinary-meaning rule of Government Code § 311.011(a), the opinion found the text reconcilable with the old population limit, so Fleming Foods did not displace it. The result: the 60,000 ceiling governs the entire section, and a 1989 letter opinion (LO-89-065) had already advised that Webb County was not authorized to construct cattle guards.

Citations

Statutory provisions:

• Tex. Transp. Code Ann. § 251.009 (Vernon 1999)
• Tex. Gov't Code Ann. § 311.011(a) (Vernon 1998)

Cases:

• Fleming Foods v. Rylander, 6 S.W.3d 278 (Tex. 1999)
• Ex parte Anderson, 902 S.W.2d 695, 699 (Tex. App.-Austin 1991, writ ref'd)
• Bingham v. State, 913 S.W.2d 208, 210 (Tex. Crim. App. 1995)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0245
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2000/jc0245.pdf

Original opinion text

Best-effort transcription from the official scanned PDF. Minor character-level errors from the source OCR have been corrected; the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL - STATE OF TEXAS

JOHN CORNYN

July 7, 2000

The Honorable Homero Ramirez
Webb County Attorney
P.O. Box 420268
Laredo, Texas 78042-0268

Opinion No. JC-0245

Re: Whether Webb County may replace a cattle guard that was removed from a county road (RQ-0183-JC)

Dear Mr. Ramirez:

You have requested our opinion as to whether section 251.009 of the Transportation Code authorizes Webb County to replace a previously existing cattle guard that was removed from a county road. For the reasons set forth below, we conclude that it may not do so.

Section 251.009 of the Transportation Code reads, in its entirety:

(a) The commissioners court of a county with a population of less than 60,000 may authorize the construction of cattle guards on a county road of any class. A cattle guard authorized under this section is not an obstruction of the road.

(b) The commissioners court shall establish plans and specifications for a standard cattle guard to be used on the county roads. The plans and specifications must be plainly written and supplemented by drawings as necessary and must be available for inspection by the residents of the county.

(c) A person who constructs a cattle guard on a county road that does not conform to the plans and specifications established under Subsection (b) commits an offense. An offense under this subsection is a misdemeanor punishable by a fine of not less than $5 or more than $100.

(d) The commissioners court may construct a cattle guard on a county road of any class and may pay for its construction from the county road and bridge fund if the court finds that the construction of the cattle guard is in the best interest of the residents of the county.

TEX. TRANSP. CODE ANN. § 251.009 (Vernon 1999). Webb County, with a population of more than 60,000,[1] may not, under subsection (a), "authorize the construction of cattle guards on a county road." See Tex. Att'y Gen. LO-89-065 (Webb County not authorized to construct cattle guards). You question, in effect, whether the 60,000 population limit expressed in subsection (a) also precludes Webb County from constructing a cattle guard under subsection (d).

Section 251.009 of the Transportation Code was adopted in 1995.[2] Prior to that date, the relevant provision, subsections (b)-(e) of section 2.007, article 6702-1 of the Revised Civil Statutes read:

(b) Any county in this state containing a population of less than 60,000 inhabitants according to the most recent federal census may by a majority vote of the commissioners court authorize the construction of cattle guards across any or all of the first-class, second-class, or third-class roads in said county, and the cattle guards may not be classed or considered as obstructions on the roads.

(c) A first-class or second-class road may not be reduced to a lower class.

(d) The commissioners court of any county coming under this section shall provide proper plans and specifications for a standard cattle guard to be used on the roads of the county. The plans and specifications shall be plainly written, supplemented by drawings as may be necessary, and shall be available to the inspection of the citizens of the county. After the commissioners court provides the proper plans and specifications for a standard cattle guard to be used on the roads of the county, any person constructing any cattle guard that is not in accordance with the approved plans and specifications prepared by the commissioners court is guilty of obstructing the roads of the county, and the person responsible for the improper construction of the cattle guards commits a misdemeanor and shall be fined not less than $5 nor more than $100.

(e) The commissioners court of any county coming under the provisions of this section may construct cattle guards on the first-class, second-class, and third-class roads of the county and may pay for the construction out of the road and bridge funds of the county when in its judgment it believes the construction of the cattle guards to be in the best interest of the citizens of the county.

Act of May 20, 1983, 68th Leg., R.S., ch. 288, 1983 Tex. Gen. Laws 1431, 1437-38 (emphasis added). Thus, the question before us is whether the 1995 codification, in removing the language "coming under the provisions of this section" from what is now subsection (d) of section 251.009, means that subsection (d) is now applicable to all counties rather than merely to those with a population of less than 60,000.

The bill enacting the 1995 Transportation Code declares that "no substantive change in law is intended by this Act."[3] Prior to Fleming Foods v. Rylander, 6 S.W.3d 278 (Tex. 1999), we could have accepted at face value this statement of nonsubstantive codification. The Fleming Foods rule holds that a legislative declaration of "no substantive change" cannot be used to overcome a statute that is written in clear and unambiguous language. Id. at 283-84. The rule is applicable, however, only "[w]hen there is no room to interpret or construe the current law as embodying the old." Id. at 285. The recodification, in order to trigger the Fleming Foods' standard, must be "direct, unambiguous," and incapable of being "reconciled with prior law." Id.

In the situation you pose, this is not the case, as becomes clear by considering section 251.009 in context. It is well established that the words of a statute are to be read in context according to the rules of grammar and common usage. TEX. GOV'T CODE ANN. § 311.011(a) (Vernon 1998). See Ex parte Anderson, 902 S.W.2d 695, 699 (Tex. App.-Austin 1991, writ ref'd); see also Bingham v. State, 913 S.W.2d 208, 210 (Tex. Crim. App. 1995). Considered in context, section 251.009 makes clear that its every subsection refers to "a county with a population of less than 60,000." Subsection (d), and subsection (b) as well, speak of "the" commissioners court, in contrast to "a" commissioners court, the latter term of which would be expected if subsections (d) and (b) were applicable to all counties, regardless of population. The Oxford English Dictionary defines "the" as "[m]arking an object as before mentioned or already known, or contextually particularized (e.g., 'We keep a dog. We are all fond of the dog.')." XVII OXFORD ENGLISH DICTIONARY 877 (2d ed. 1989). This is precisely what occurs in section 251.009. Subsection (a) defines the class of counties to which section 251.009 applies - counties with a population of less than 60,000. Subsections (b) and (d) then simply "contextually particularize" this class by using the phrase "the commissioners court," in order to limit the class to those counties with a population of less than 60,000.

Because section 251.009 is not "direct, unambiguous, and cannot be reconciled with prior law," we conclude that Fleming Foods does not apply to the situation you present. Section 251.009 of the Transportation Code is applicable only to counties with a population of less than 60,000. Thus, Webb County may not, pursuant to that statute, authorize the construction, including the replacement, of cattle guards on county roads.

SUMMARY

Under section 251.009 of the Transportation Code, Webb County may not replace a cattle guard that was removed from a county road.

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

Rick Gilpin
Assistant Attorney General - Opinion Committee

[1] See 1 BUREAU OF THE CENSUS, U.S. DEP'T OF COMMERCE, 1990 CENSUS OF POPULATION: General Population Characteristics: Texas 4 (1992) (population of Webb County is 133,239).

[2] Act of May 1, 1995, 74th Leg., R.S., ch. 165, § 1, 1995 Tex. Gen. Laws 1025, 1153.

[3] See Act of May 1, 1995, 74th Leg., R.S., ch. 165, § 25, 1995 Tex. Gen. Laws 1025, 1871.