Can a Texas county repair private gated-community roads if the city asks and the county is reimbursed?

Plain-English summary

A county criminal district attorney asked the Attorney General whether the Randall County Commissioners Court could enter an interlocal agreement with a municipality to repair roads inside the city that are private and closed to the general public, where the county would be fully reimbursed for the work. The roads ran through the Village of Timberlake Canyon, a gated community incorporated as a Texas municipality, but were owned by a property owners association, and only residents and their guests could use them.

The Attorney General concluded the commissioners court could not enter such a contract. Because Randall County's population is far above five thousand, the one narrow constitutional exception that lets a small county build and maintain private roads for a reasonable charge (article III, section 52f) did not apply, and so it made no difference that the county would be reimbursed. Outside that exception, counties have no constitutional or statutory authority to construct or maintain private roads. The opinion rested on the settled rule that public labor, materials, and equipment may be spent only for a public use, meaning one open to the public generally on equal terms, not for a restricted set of people. Roads the public is barred from are not a public use.

The opinion also rejected the idea that routing the work through an interlocal agreement with the village changed the result. Government Code section 791.032 lets a county agree with a city to finance work on city streets and alleys, and a companion Transportation Code provision lets the county spend money on such work when it finds a county benefit. But neither was meant to reach private roads, and reading them that way would let the county use the village as a proxy for the private association it cannot deal with directly. Doing so would also violate the constitution's prohibition (article III, section 52(a)) on granting public money or things of value to aid a private association. The opinion drew the comparison to an earlier case where a county could not use its road equipment to clear brush from a private lot.

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 commissioners court (what the opinion held for it): The opinion held it had no authority to enter the contract; outside the article III, section 52f exception for small counties, a county may not maintain private roads, and a county-benefit finding under the interlocal statutes could not cure the constitutional problem.

The municipality and the property owners association (what the opinion held for them): The opinion held that the interlocal-agreement statutes could not be used to channel public road work onto privately owned roads; the city could not serve as a conduit for work the county could not perform for the private association directly.

County officials and county attorneys statewide (what the opinion held for them): The opinion confirmed the public-purpose limit on county resources and that a commissioners-court decision violating article III, section 52 is unreasonable as a matter of law and subject to judicial review.

Common questions

Can a Texas county fix roads in a private gated community?
Generally no. The opinion concluded counties have no authority to maintain private roads except under article III, section 52f, which applies only to counties with 5,000 or fewer residents.

Does it matter that the county would be paid back in full?
No. The opinion concluded that because the small-county exception did not apply to Randall County, reimbursement was immaterial; the work still served no public purpose.

Can the county get around this by signing an interlocal agreement with the city?
No. The opinion concluded the interlocal-agreement statutes cover city streets and alleys, not private roads, and using the city as a proxy for the private association would violate article III, section 52(a)'s ban on aiding a private entity with public money.

Why can't public crews work on private roads at all?
The opinion explained that public labor, materials, and equipment may be used only for a public use, which means access open to the public generally on equal terms. Roads closed to the public do not qualify.

Background and statutory framework

The opinion began with article III, section 52f, which permits a county of 5,000 or fewer residents to construct and maintain private roads if it charges a reasonable fee. Because Randall County's 1990 census population was 89,673, that exception did not apply. Citing JC-0172 (2000) and JM-334 (1985), the opinion stated that apart from section 52f, counties are not authorized to construct or maintain private roads.

It then applied the public-purpose doctrine. Under Godley v. Duval County, 361 S.W.2d 629, 630 (Tex. Civ. App.—San Antonio 1962, no writ), commissioners may not permit county labor, materials, or equipment to be used for other than public use, and under Ex parte Conger, 357 S.W.2d 740, 742 (Tex. 1962), a public use requires that all persons have an equal right to the property on the same terms. Roads closed to the public fail that test.

On the interlocal question, the opinion quoted Government Code section 791.032 (allowing a county-city contract to finance work on city streets and alleys, including those not connected to other roads) and noted the companion amendment to Transportation Code section 251.012(a)(4), both enacted by House Bill 508 of the 76th Legislature (Act of May 26, 1999, ch. 671, 1999 Tex. Gen. Laws 3243). The opinion treated House Bill 508 as a codification of JC-0036 (1999), which had allowed county spending on unconnected city streets that serve a county purpose. It agreed with the requestor that extending the statute to private roads would let the county use the village as a proxy for the private association and would conflict with article III, section 52(a)'s prohibition on aiding private entities, reading the statute to remain constitutional (Government Code section 311.021(1)). Finally, while a county-purpose determination is normally for the commissioners court (JC-0036 (1999) at 6), a determination that violates article III, section 52 is unreasonable a priori (Commissioners Court of Titus County v. Agan, 940 S.W.2d 77, 80 (Tex. 1997)).

Citations

Constitutional and statutory provisions:

• Tex. Const. art. III, §§ 52f, 52(a)
• Tex. Gov't Code Ann. §§ 791.032, 311.021(1) (Vernon 1998 & Supp. 2000)
• Tex. Transp. Code Ann. § 251.012(a)(4) (Vernon Supp. 2000)
• Act of May 26, 1999, 76th Leg., R.S., ch. 671, 1999 Tex. Gen. Laws 3243 (House Bill 508)

Cases and prior opinions:

• Godley v. Duval County, 361 S.W.2d 629 (Tex. Civ. App.—San Antonio 1962, no writ)
• Ex parte Conger, 357 S.W.2d 740 (Tex. 1962)
• Commissioners Court of Titus County v. Agan, 940 S.W.2d 77 (Tex. 1997)
• Tex. Att'y Gen. Op. Nos. JC-0172 (2000), JC-0036 (1999), JM-334 (1985)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0288
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2000/jc0288.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

October 3, 2000

The Honorable James A. Farren
Randall County Criminal District Attorney
501 16th Street
Canyon, Texas 79015

Opinion No. JC-0288

Re: Authority of a commissioners court to contract to repair roads within a municipality that belong to a property owners association (RQ-0235-JC)

Dear Mr. Farren:

You have asked this office whether a commissioners court may enter into an interlocal agreement with a municipality to repair roads that are within the municipality, but that are private and not open to use by the general public. You further state that the county is to be fully reimbursed for the cost of such work. Given that the county in question has a population in excess of five thousand persons and is therefore not subject to the provisions of article III, section 52f of the Texas Constitution, whether or not the county is reimbursed is immaterial. The commissioners court may not enter into such a contract.

As you explain the matter, the roads in question are within the Village of Timberlake Canyon, lying entirely within Randall County.[1] The village is, you inform us, a gated community incorporated as a Texas municipality. See Request Letter, note 1, at 1. Roads in the village are not open to the public. "Only residents of the village and their guests are allowed upon the roads within its boundaries, which are owned not by the village but by the Timbercreek Property Owners Association, Inc., a Texas non-profit corporation." Id.

The commissioners court has entered into an agreement "to sealcoat the roads within the village for a sum that would compensate the county in full for all costs incurred for the job." Id. You have advised the commissioners that they were without authority to enter into such a contract. We agree.

The Texas Constitution permits a county to maintain private roads in a single narrowly drawn instance. Under article III, section 52f, a county with a population of five thousand or less is permitted to construct and maintain private roads if it imposes a reasonable charge for the work. See TEX. CONST. art. III, § 52f. The population of Randall County, according to the most recent decennial census, is 89,673.[2] Accordingly, article III, section 52f does not apply.

As this office pointed out in Attorney General Opinion JC-0172, "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." Tex. Att'y Gen. Op. No. JC-0172 (2000) at 2; see also Tex. Att'y Gen. Op. No. JM-334 (1985) at 2 (counties do not have general authority to maintain private roads).

That public labor and materials may be expended only for public purposes is well-established. "The County Commissioners are not authorized to permit the use of county labor, materials or equipment for other than public use." Godley v. Duval County, 361 S.W.2d 629, 630 (Tex. Civ. App.—San Antonio 1962, no writ). A "public use" is one available to the public generally, not to a restricted set of persons. "To constitute 'public use' all persons must have an equal right in respect to the property and it must be in common and on the same terms no matter that only a few in number may avail themselves of it." Ex parte Conger, 357 S.W.2d 740, 742 (Tex. 1962). Roads to which the general public is denied access cannot, therefore, constitute a public use.

Nor is the analysis changed because the commissioners court seeks to enter into an interlocal agreement with the village. Section 791.032 of the Government Code provides:

With the approval of the governing body of a municipality, a local government may enter into an interlocal contract with the municipality to finance the construction, improvement, maintenance, or repair of streets or alleys in the municipality, including portions of the municipality's streets or alleys that are not an integral part of or a connecting link to other roads or highways.

TEX. GOV'T CODE ANN. § 791.032 (Vernon Supp. 2000).

Section 791.032 was added to the Government Code by House Bill 508, 76th Legislature.[3] Another part of House Bill 508 amended section 251.012 of the Transportation Code to allow the commissioners court to "spend county money" for, inter alia, "any construction, improvement, maintenance, or repair allowed under Section 791.032, Government Code, if the commissioners court finds that the county will receive benefits as a result of the work on the street or alley." TEX. TRANSP. CODE ANN. § 251.012(a)(4) (Vernon Supp. 2000).

We agree with your suggestion that House Bill 508 may be seen as "a codification" of Attorney General Opinion JC-0036, in which this office, overruling certain prior opinions, averred that counties might expend funds to improve city streets "that are not integral parts of or connecting links with county roads or state highways . . . [so long as] any expenditure of county funds for improvement to streets unconnected to county roads or state highways serve a county purpose." Tex. Att'y Gen. Op. No. JC-0036 (1999) at 11. We agree as well with your conclusion that construing House Bill 508 to permit such an interlocal agreement as the one contemplated here "would allow the county to use the village as a proxy for the private party it cannot deal with directly" and that it "is unlikely that the legislature intended such a result when it authorized the interlocal agreements contained in the Government and Transportation Codes." Memorandum, note 4, at 3.

Nothing in the statutory language, nor in Attorney General Opinion JC-0036, suggests that either the opinion or the statute intended to permit agreements by which private roads received a public benefit. The concern of both was whether the county could maintain municipal streets and alleys that did not connect with county roads. A construction of the statutory language to include private roads among those which the county might maintain would violate article III, section 52 of the Texas Constitution, which forbids the legislature "to authorize any county, city, town or other political corporation or subdivision of the State to . . . grant public money or thing of value in aid of, or to any individual, association or company." TEX. CONST. art. III, § 52(a); see TEX. GOV'T CODE ANN. § 311.021(1) (Vernon 1998) (statutes presumed to be intended to be constitutional).

Finally, we agree that such an interlocal contract would not serve a county purpose. While the decision as to what constitutes a county purpose is ordinarily for the commissioners court to make, see Tex. Att'y Gen. Op. No. JC-0036 (1999) at 6, a decision which violated article III, section 52 would be a priori unreasonable. See Commissioners Court of Titus County v. Agan, 940 S.W.2d 77, 80 (Tex. 1997) ("If the Commissioners Court acts illegally, unreasonably, or arbitrarily, a district court may so adjudge.").

In a free society, citizens who wish to exclude the public from their property have every right to do so. But they do not have the right to use public resources for the upkeep of their property, whether that property be their houses, their lawns, or their private streets. Just as the commissioners of Upton County could not use county road equipment to scrape off brush from a private lot to benefit the landowner, see Ex parte Conger, 357 S.W.2d at 742, so the commissioners of Randall County may not authorize the use of county materials and equipment to maintain private roads for the benefit of a private association of property owners.

SUMMARY

Except in the limited case governed by article III, section 52f of the Texas Constitution, a commissioners court may not enter into an interlocal agreement with a municipality to repair roads within the municipality which are private and not open to use by the general public.

Very truly yours,

JOHN CORNYN
Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

SUSAN D. GUSKY
Chair, Opinion Committee

James E. Tourtelott
Assistant Attorney General - Opinion Committee

[1] See Letter from Honorable James A. Farren, Criminal District Attorney, Randall County, to Opinion Committee, Office of the Attorney General at 1 (May 23, 2000) (on file with Opinion Committee) [hereinafter Request Letter].

[2] 1 BUREAU OF THE CENSUS, U.S. DEP'T OF COMMERCE, 1990 CENSUS OF POPULATION: General Population Characteristics: Texas 3 (1992) (population of Randall County is 89,673).

[3] See Act of May 26, 1999, 76th Leg., R.S., ch. 671, 1999 Tex. Gen. Laws 3243.

[4] See Memorandum from Honorable James A. Farren, Criminal District Attorney, Randall County, to Honorable Ted Wood, Randall County Judge at 2 (May 22, 2000) (on file with Opinion Committee) [hereinafter Memorandum].