Can a county reclassify an existing county road so a rancher can put gates across it to graze livestock?

Texas AG Opinion JM-1105: Can a County Reclassify a Road as a "Neighborhood Road"?

Plain-English summary

A landowner in Kendall County wanted to run goats on 558 acres of grazing land, and a 2.5-mile stretch of second-class county road ran right through it. To keep the livestock contained, the owner hoped to erect bump gates (the kind you nudge open with a vehicle's front bumper and that swing shut behind you) at either end of that stretch. The catch is that state law only lets landowners put gates across certain kinds of county roads, specifically third-class or neighborhood roads whose right-of-way was acquired at no cost to the county. A second-class road is not on that list. So the landowner asked the commissioners court to reclassify the road as a "neighborhood road," which would arguably clear the way for the gates, even though it would inconvenience other people who use the road and would now have to negotiate two bump gates.

The county attorney asked the Attorney General whether the commissioners court could do that. The answer was no. Two features of the road-classification statute blocked it. First, a commissioners court classifies public roads as first-, second-, or third-class based on width, and by statute a first-class or second-class road may not be reduced to a lower class. Second, and more directly, a "neighborhood road" is not just another rung on that ladder; it can only be established under a separate provision when a landowner has no public road or other means of access to his land and applies for an access road, after notice and a hearing.

Here, the whole premise was missing. There was already a second-class road serving the land. Because the landowner was not cut off from access, there was no basis to create a neighborhood road at all. The Attorney General concluded the commissioners court simply lacked authority to reclassify the second-class road as a neighborhood road. A footnote also flagged, without deciding, that the Texas Supreme Court's decision in Maher v. Lasater raised a constitutional question about the neighborhood-road statute, since an earlier version had been held unconstitutional to the extent it authorized taking private property for private (rather than public) use.

Currency note

This opinion was issued in 1989. 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.

The county-road statute cited here as article 6702-1, V.T.C.S., was later repealed and recodified into the Texas Transportation Code, and the road-classification and gate provisions were renumbered. Anyone dealing with a present-day county road-classification or gate question should work from the current Transportation Code rather than the 1989 article 6702-1 citations here.

Who this opinion affected (as of 1989)

Commissioners courts: The opinion told them they could not use a "neighborhood road" reclassification as a workaround to let a landowner gate an existing county road. Neighborhood roads exist for landlocked property, not for converting a road that already serves the land.

Landowners wanting to gate a county road: For owners hoping to fence livestock across a public road, the opinion closed off the reclassification route where a usable road already existed. Gates are allowed only on third-class or neighborhood roads whose right-of-way came at no cost to the county.

Other residents who use the road: For the neighbors who relied on the through road, the opinion protected their access. The county could not downgrade the road's status in a way that would force them to negotiate new gates.

Common questions

Can a county reclassify a second-class road as a neighborhood road?
No. The Attorney General concluded the commissioners court lacks authority to do so. A neighborhood road may be established only when a landowner has no other means of access to a public road, which was not the case here.

Why did the landowner want the reclassification?
To erect bump gates across the road for grazing goats. State law allows gates only across third-class or neighborhood roads whose right-of-way was acquired at no cost to the county, not across a second-class road.

Can a second-class road be downgraded to a lower class?
No. The statute provides that a first-class or second-class road may not be reduced to a lower class.

When can a county actually create a neighborhood road?
Only when a landowner has no public road or other means of access to his land and applies for an access road, after notice to affected landowners and a hearing.

Background and statutory framework

Under subsection 2.007(a) of article 6702-1, V.T.C.S., a commissioners court classifies all public roads in the county as first-class, second-class, or third-class based on the road's width, and subsection 2.007(c) provides that a first-class or second-class road may not be reduced to a lower class. Subsection 2.007(f) permits the owners of land across which a third-class or neighborhood road runs, when the right-of-way was acquired without cost to the county, to erect gates across the road when necessary, subject to size and clearance requirements. A second-class road is not covered by that gate provision, which is why the landowner sought reclassification.

Section 2.006 governs when a commissioners court may establish a neighborhood road. A landowner to whose land there is no public road or means of access may apply for an access road connecting his land to the public road system. After notice to affected landowners and a hearing, the court may declare designated lines a public highway if it appears the applicant has no other means of access. Id. § 2.006(b), (c), (d). The landowner's brief argued that because a neighborhood road is a distinct, non-numerical classification, subsection 2.007(c)'s bar on reducing a second-class road to a third-class road did not prevent reclassifying it as a neighborhood road. The Attorney General rejected that reading. A prerequisite for a neighborhood road under section 2.006 is that the landowner has no means of access to a public road, and here a second-class road already existed, so there was no basis to establish a neighborhood road and no authority to reclassify.

A footnote observed that, while the road already existed and no taking of property for an individual was involved, the Texas Supreme Court's decision in Maher v. Lasater, 354 S.W.2d 923 (Tex. 1962), might raise a question about the constitutionality of the neighborhood-road statute; see 36 D. Brooks, County & Special District Law § 40.9 (Texas Practice 1989). In Maher, the court explained that after a 1953 amendment eliminated the requirement that a road be of sufficient public importance, and instead authorized declaring a private roadway a public highway simply because applicants wished it and had no access to their land, the amendment was unconstitutional and void to the extent it authorized the taking of private property for private use. Maher, 354 S.W.2d at 925.

Citations

Statutory authorities (V.T.C.S. art. 6702-1):

• § 2.006 (establishment of a neighborhood road for a landowner with no means of access; notice and hearing)
• § 2.007 (classification of roads by width; § 2.007(c) bars reducing a first- or second-class road to a lower class; § 2.007(f) allows gates across third-class or neighborhood roads acquired at no cost to the county)

Cases:

• Maher v. Lasater, 354 S.W.2d 923 (Tex. 1962) (statute authorizing declaration of a private roadway as a public highway is unconstitutional to the extent it authorizes taking private property for private use)

Secondary authority:

• 36 D. Brooks, County & Special District Law § 40.9 (Texas Practice 1989)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1105
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1989/jm1105.pdf

Original opinion text

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

October 6, 1989

Honorable Pamela K. McKay
Kendall County Attorney
204 East San Antonio Street
Suite 12
Boerne, Texas 78006

Opinion No. JM-1105

Re: Authority of a commissioners court to reclassify a second class road as a neighborhood road (RQ-1768)

Dear Ms. McKay:

You ask whether the commissioners court has authority to reclassify a second-class road as a neighborhood road. Your specific question is "whether [the county] can alter the road classification specifically to allow a landowner to make use of grazing land, and arguably inconvenience the non-landowners who use the road and [who] will be required to negotiate two bump gates if the road is reclassified."

You state that a landowner is interested in erecting bump gates at either end of a 2.5 mile stretch of second-class county road that runs through the owner's 558 acres of grazing land. The erection of bump gates would allow the owner to run goats on the property. You advise that bump gates are opened by nudging the gate with a vehicle's front bumper and that the gate closes behind the vehicle without the necessity of the driver exiting the vehicle.

Subsection 2.007(f) of article 6702-1, V.T.C.S., sets forth the conditions under which a gate may be placed across a county road. Subsection 2.007(f) provides:

The owners of land across which a third-class or neighborhood road may run, when the right-of-way for the road has been acquired without cost to the county, may erect gates across the road when necessary, the gates to be not less than 10 feet wide and free of obstructions at the top. (Emphasis added.)

Subsection 2.007(a) of article 6702-1 provides that the commissioners court shall classify all public roads in the county as first-class, second-class, or third-class roads based on the width of the road. Subsection 2.007(c) provides that a "first-class or second-class road may not be reduced to a lower class."

Section 2.006 of article 6702-1 sets forth the circumstances under which a commissioners court may establish a neighborhood road. Any landowner to whose land there is no public road or means of access may apply to the commissioners court for an access road connecting his land with a public road system. Id. § 2.006(b). Notice must be given affected landowners and, following a hearing, the commissioners court may declare lines designated in the application or fixed by the court to be a public highway if it appears that the applicant has no other means of access to his land.[1] Id. (c), (d).

[1] While the road in question is in existence and there is no question of the taking of property by a county for the use of an individual, the opinion of the supreme court in Maher v. Lasater, 354 S.W.2d 923 (Tex. 1962), might raise some question about the constitutionality of the neighborhood road statute. See 36 D. Brooks, County & Special District Law § 40.9 (Texas Practice 1989).

In Maher, the court stated:

Prior to amendment by the Legislature in 1953, Article 6711 authorized Commissioners Courts to declare a roadway to be a public highway only if they deemed 'the road of sufficient public importance.' As so written the statute conditioned the taking of property upon a finding that it would be dedicated to a public use. By Acts 53rd Leg., p. 1054, ch. 438, the requirement for a finding that the road was of public importance was eliminated, and Commissioners Courts are now authorized to declare a private roadway to be a public highway if applicants therefor wish it to be done and 'have no means of access to their lands and premises.' In so far as the amendment seeks to authorize the taking of private property for private use, it is unconstitutional and void.

Maher, supra, at 925.

You have provided us with a copy of a brief filed with the commissioners court in support of this landowner's application. The brief recognizes that subsection 2.007(c) prohibits the commissioners court from reducing a second-class road to a third-class road but urges that since a neighborhood road is a distinct non-numerical classification there is no limitation on reclassifying a second-class road as a neighborhood road.

A prerequisite to the establishment of a neighborhood road under section 2.006 is that there is no means of access for the landowner to a public road. Under the scenario you have provided there is a second-class road in existence. Therefore, there is no basis for establishing a neighborhood road in the situation you describe.

SUMMARY

The commissioners court is without authority to reclassify a second-class road as a neighborhood road.

Very truly yours,

JIM MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Tom G. Davis
Assistant Attorney General