How could Rusk County dispose of abandoned road rights-of-way when county records did not show how the land was originally acquired?
Apply this to your situation
This page answers the general question as of 1985. Ezel answers yours: what it means for your facts, under current Texas law, with citations.
Texas AG Opinion JM-332: Abandoned County Rights-of-Way
Plain-English summary
The Rusk County Attorney reported that the commissioners court had abandoned several roads, but the county clerk had no records showing how their rights-of-way had originally been acquired. The roads had been "established many years ago." Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0332.pdf
JM-332 began with the rule that a commissioners court could exercise only powers granted expressly or by necessary implication in the Texas Constitution and statutes. It therefore could dispose of abandoned right-of-way property only with statutory or constitutional authority. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0332.pdf
Article 1577 supplied the required disposal procedure. The opinion treated county roads and rights-of-way as interests in land and noted that the statute specifically authorized disposition of abandoned "highway right-of-way property." Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0332.pdf
The missing acquisition records did not prevent use of article 1577. JM-332 said the statute covered right-of-way disposal even when "there are no official records of how the property was acquired," provided the county owned the property when it was disposed of. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0332.pdf
The opinion concluded that, after abandonment under article 6702-1, section 2.008, the commissioners court could dispose of the roads or rights-of-way only through article 1577, regardless of the acquisition method. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0332.pdf
Currency note
This opinion was issued in 1985. 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.
Common questions
Did missing records let the county choose any disposal method?
No. JM-332 said article 1577 itself made provision for right-of-way property when acquisition records were absent. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0332.pdf
What fact had to be established before article 1577 applied?
The property had to be owned by the county at the time of disposition. The opinion called county ownership "the prerequisite for the application of article 1577." Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0332.pdf
Could the commissioners court give the abandoned property to adjacent owners?
No. JM-332 said commissioners courts had not been given authority "to donate any county-owned property to private individuals or corporations." Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0332.pdf
Could adjoining owners claim the right-of-way by adverse possession before formal abandonment?
The opinion said they could not claim title by adverse possession unless the road had been abandoned in compliance with article 6702-1, section 2.008. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0332.pdf
Would a disposal outside article 1577 be valid?
JM-332 cited Wilson v. County of Calhoun for the conclusion that a county land conveyance made through a method other than article 1577 was void. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0332.pdf
Background and statutory framework
Canales v. Laughlin and article V, section 18, framed the commissioners court's limited authority. Without a constitutional or statutory grant, the county could not dispose of its abandoned right-of-way property. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0332.pdf
Article 1577 authorized commissioners courts to dispose of real estate and specifically included abandoned highway right-of-way property. Anderson v. Tall Timbers Corp. supported the opinion's treatment of county roads and rights-of-way as land interests. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0332.pdf
Article 6702-1, section 2.008, governed abandonment. JM-332 treated lawful abandonment as the step that had to occur before the county could use article 1577's disposal process or adjoining owners could assert adverse-possession claims. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0332.pdf
Citations and references
- Tex. Const. article V, section 18
- V.T.C.S. articles 1577 and 5517
- V.T.C.S. article 6702-1, section 2.008
- V.T.C.S. article 6703a
- Canales v. Laughlin, 214 S.W.2d 451, 453 (Tex. 1948)
- Anderson v. Tall Timbers Corp., 378 S.W.2d 16 (Tex. 1964)
- Wilson v. County of Calhoun, 489 S.W.2d 393 (Tex. Civ. App. - Corpus Christi 1972, writ ref'd n.r.e.)
- Conley v. Daughters of the Republic, 156 S.W. 197 (Tex. 1913)
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0332.pdf
Source
- Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0332
- Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0332.pdf
Original opinion text
Best-effort transcription from a scanned PDF. Minor errors may remain. The linked PDF is authoritative.
The Attorney General of Texas
June 11, 1985
Honorable William L. Ferguson
County & District Attorney
Rusk County Courthouse
Henderson, Texas 75652
Opinion No. JM-332
Re: Circumstances under which a county may dispose of abandoned rights-of-way
Dear Mr. Ferguson:
You inform us that in Rusk County several roads have been abandoned by action of the commissioners court. The county clerk does not have any records as to how the rights-of-way for these roads were acquired or established by the county, but these roads were established many years ago. In that regard you ask:
How can the commissioners court of a county dispose of abandoned rights-of-way when there is no record showing the method of acquisition of such rights-of-way?
A county commissioners court has only the powers conferred either expressly or by necessary implication by the constitution and statutes of this state. See Tex. Const. art. V, §18; Canales v. Laughlin, 214 S.W.2d 451, 453 (Tex. 1948). Thus, the commissioners court can dispose of abandoned right-of-way property only where there is statutory or constitutional authorization to do so. Id.
Article 1577, V.T.C.S., provides a statutory procedure authorizing a county commissioners court to dispose of real estate. County roads and rights-of-way are interests in land. See Anderson v. Tall Timbers Corp., 378 S.W.2d 16 (Tex. 1964). The statute specifically authorizes a commissioners court to dispose of abandoned "highway right-of-way property." V.T.C.S. art. 1577. It has been held that a conveyance or disposition of land owned by the county made in any mode other than prescribed by article 1577, V.T.C.S., is void. See Wilson v. County of Calhoun, 489 S.W.2d 393 (Tex. Civ. App. - Corpus Christi 1972, writ ref'd n.r.e.). Moreover, a commissioners court has not been given the authority to donate any county-owned property to private individuals or corporations. See Conley v. Daughters of the Republic, 156 S.W. 197 (Tex. 1913); Attorney General Opinion M-661 (1970). The owners of lands surrounding a road or right-of-way cannot claim title to them by adverse possession unless the road has been abandoned in compliance with section 2.008 of article 6702-1, V.T.C.S. Cf. V.T.C.S. art. 5517; Attorney General Opinion H-111 (1973) (discussing predecessor statute V.T.C.S. art. 6703a).
You indicated that there are no records showing the method of acquisition of the now abandoned right-of-way property. The scheme outlined in article 1577, V.T.C.S., makes provisions for the disposition of right-of-way property even if there are no official records of how the property was acquired. The prerequisite for the application of article 1577, V.T.C.S., is that the property is owned by the county at the time of its disposition. Accordingly, the commissioners court may dispose of the abandoned roads or rights-of-way only in the method outlined in article 1577, V.T.C.S.
SUMMARY
Once a county commissioners court has abandoned a road or right-of-way in compliance with article 6702-1, section 2.008, V.T.C.S., the court is authorized to dispose of the roads only in compliance with article 1577, V.T.C.S., regardless of the method of acquisition.
Very truly yours,
JIM MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
ROBERT GRAY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Tony Guillory
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Chairman
Colin Carl
Susan Garrison
Tony Guillory
Jim Moellinger
Jennifer Riggs
Nancy Sutton
Sarah Woelk
Get today's answer for your situation
You just read a 1985 opinion on this question. Ezel checks the current Texas statutes and case law and answers your specific situation, with citations.
Opens in Ezel Pro. Every answer cites the law it relies on.