Could Bastrop County maintain a privately owned road that subdivision residents used as their only access to a county road?

Texas AG Opinion JM-334: County Maintenance of a Private Road

Plain-English summary

The Bastrop County criminal district attorney asked whether a county commissioner could maintain a privately owned road in the commissioner's precinct. JM-334 limited its analysis to "the power of a commissioners court or its proper agent to maintain certain types of roads," not the commissioner's individual authority under the ex officio road-commissioner statutes. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0334.pdf

The road had long been maintained by the county and was the only access between a rural subdivision and a county road. Subdivision residents held an easement, and the road was described as open to the public, but a sign at the junction said "private road -- keep out." Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0334.pdf

JM-334 concluded that Texas law gave counties general authority to maintain public roads, not private roads. It found no special provision applicable to the facts that authorized Bastrop County to maintain this private road. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0334.pdf

The opinion then considered whether the road had become public. It identified purchase, condemnation, dedication, and adverse possession as possible ways to establish a public interest, subject in Bastrop County to article 6812h's limits. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0334.pdf

The stated facts negated each route. The county had not condemned or purchased the road, it had not been dedicated to the county, and use occurred with the owner's permission rather than adversely. JM-334 therefore found that the commissioners court had "no authority to maintain the road." Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0334.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 the road become public merely because subdivision residents and others used it?

No. The opinion required a public interest grounded in an authorized method. It said permitted use could not establish prescription or use adverse to the owner. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0334.pdf

What methods could create a public interest in a private road?

JM-334 identified statutory road establishment, purchase, condemnation, dedication, and adverse possession, while explaining that article 6812h restricted which forms counted in covered counties. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0334.pdf

Did an implied common-law dedication count under article 6812h?

No. The opinion cited Lindner v. Hill for the conclusion that article 6812h's definition of dedication did not include implied common-law dedication. It also said an express verbal dedication did not qualify. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0334.pdf

Could a pre-1981 public interest survive article 6812h?

Possibly. JM-334 cited cases holding that the statute did not apply retroactively, so it would not bar a claim that the public acquired an interest before August 31, 1981, under a theory the statute later foreclosed. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0334.pdf

Did the opinion decide the individual commissioner's authority as an ex officio road commissioner?

No. JM-334 expressly said it did not address that separate question and dealt only with the authority of the commissioners court or its proper agent. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0334.pdf

Background and statutory framework

The opinion began with the rule from Canales v. Laughlin that a commissioners court's legal authority had to be found in the Texas Constitution or statutes. Article XI, section 2, authorized the Legislature to provide for construction and maintenance of public roads, and cited statutes gave counties general public-road authority. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0334.pdf

JM-334 found no general authority for private-road maintenance. It noted a narrow constitutional provision for counties with populations of 5,000 or less to maintain private roads for a fee, with the revenue used for public roads, but said no such provision applied to the described facts. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0334.pdf

Article 6812h applied to counties with populations of 50,000 or less. The opinion stated that Bastrop County's 1980 federal census population was 24,726, placing it within the statute. Article 6812h limited acquisition or receipt of a public interest in a private road to purchase, condemnation, dedication, or adverse possession. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0334.pdf

Citations and references

• Tex. Const. article XI, section 2
• Tex. Const. article III, section 52f
• V.T.C.S. article 2351, sections 3 and 6
• V.T.C.S. article 6702-1, sections 2.002(b) and 3.001-3.004
• V.T.C.S. article 6812h
• Canales v. Laughlin, 214 S.W.2d 451, 453 (Tex. 1948)
• Doughty v. DeFee, 152 S.W.2d 404, 410 (Tex. Civ. App. - Amarillo 1941, writ ref'd w.o.m.)
• Ladies' Benevolent Society of Beaumont v. Magnolia Cemetery Co., 288 S.W. 812, 814-15 (Tex. Comm'n App. 1926, judgm't adopted)
• Lindner v. Hill, 673 S.W.2d 611, 616 (Tex. App. - San Antonio 1984, writ granted)
• Las Vegas Pecan & Cattle Co., Inc. v. Zavala County, 669 S.W.2d 808, 811-12 (Tex. App. - San Antonio 1984, no writ)
• Breithaupt v. Navarro County, 675 S.W.2d 335, 337-38 (Tex. App. - Waco 1984, writ ref'd n.r.e.)

Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0334.pdf

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0334
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0334.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

July 15, 1985

Honorable Charles D. Penick
Criminal District Attorney
Bastrop County Courthouse
Bastrop, Texas 78602

Opinion No. JM-334

Re: Whether a county may maintain a road which has not been dedicated to the county

Dear Mr. Penick:

You ask whether a county commissioner in Bastrop County can maintain a privately-owned road in his precinct. We assume that the question is phrased in terms of the individual commissioner's authority because Bastrop County Commissioners act as ex officio road commissioners in their own precincts pursuant to article 6702-1, sections 3.001-3.004, V.T.C.S. This opinion does not deal with the scope of an individual commissioner's authority under those statutes but only with the power of a commissioners court or its proper agent to maintain certain types of roads.

In your letter you say that for a number of years Bastrop County has maintained a privately-owned road that is the only means of access between a rural subdivision and county road. Although you do not describe the nature or origin of the easement, you state that there is an easement across the road that runs in favor of the residents of the subdivision. You describe the road as open to the public even though there is a sign at the juncture with the county road that says "private road -- keep out."

Your letter raises two separate questions:

1. Can the commissioners court maintain privately-owned roads?

2. If the commissioners court can maintain only public roads, is the road in question sufficiently public to come within the commissioners court's authority to maintain public roads?

The legal basis for any action by a commissioners court must be found in the Texas Constitution or statutes. Canales v. Laughlin, 214 S.W.2d 451, 453 (Tex. 1948). The Texas Constitution authorizes the legislature to provide for the construction and maintenance of public roads. Tex. Const. art. XI, §2. Several statutes give counties general authority to maintain public roads. V.T.C.S. arts. 2351.3, 2351.6; V.T.C.S. art. 6702-1, §2.002(b). Neither the constitution nor any statute, however, gives counties general authority to maintain private roads. See Attorney General Opinion JM-200 (1984). Any authority to do so would have to be found in a provision authorizing county maintenance of a private road under specified circumstances. See, e.g., Tex. Const. art. III, §52f (giving counties with a population of 5,000 or less power to maintain private roads for a fee, and providing that revenue from such maintenance must be used for the construction and maintenance of public roads). We find no such provision applicable to the circumstances you describe.

You also suggest in your letter that the road in question might be a public road for some purposes; you do not, however, suggest what legal theory would support that claim. In a previous opinion we set out the ways that a road can become "public" so that a county has general authority to maintain it. Attorney General Opinion JM-200 (1984). A county can acquire a road under statutes relating to the establishment of roads, or a county can condemn the road and award damages to the landowner in accordance with general condemnation statutes. Doughty v. DeFee, 152 S.W.2d 404, 410 (Tex. Civ. App. - Amarillo 1941, writ ref'd w.o.m.). Also, the public can acquire an interest under the theory known as prescription or adverse possession. See Ladies' Benevolent Society of Beaumont v. Magnolia Cemetery Co., 288 S.W. 812, 815 (Tex. Comm'n App. 1926, judgm't adopted). Finally, the owners can grant the public an interest by dedication. 288 S.W. at 814. Dedication can be an express or implied dedication at common law, 288 S.W. at 814, or statutory dedication pursuant to statutes governing subdivisions. See Attorney General Opinion JM-200 (1984).

A 1981 statute applicable to Bastrop County limits the methods by which certain counties can show a public interest in a private road. V.T.C.S. art. 6812h. Under article 6812h a county cannot establish or receive any public interest in a private road except by purchase, condemnation, dedication, or adverse possession. "Dedication" for the purpose of article 6812h does not include the common-law theory of implied dedication. See Lindner v. Hill, 673 S.W.2d 611, 616 (Tex. App. - San Antonio 1984, writ granted). Also, express verbal dedications are not dedications under article 6812h. Several courts have held that article 6812h does not apply retroactively, so it would not bar a claim that the public acquired an interest before August 31, 1981, under a theory not foreclosed by article 6812h. Las Vegas Pecan & Cattle Co., Inc. v. Zavala County, 669 S.W.2d 808, 811-12 (Tex. App. - San Antonio 1984, no writ); Breithaupt v. Navarro County, 675 S.W.2d 335, 337-38 (Tex. App. - Waco 1984, writ ref'd n.r.e.).

1. Article 6812h applies only to counties with a population of 50,000 or less according to the last federal census. According to the 1980 federal census, Bastrop County has a population of 24,726. 1980 Census of Population, Vol. 1, Characteristics of the Population; Chapter A, Number of Inhabitants; Part 45, Texas; issued March 1982.

The facts you recite in your letter seem to preclude a showing under any of the applicable theories that the road in question is a public road. You state that Bastrop County has not condemned the road, nor has the road been dedicated to the county. Also, you state in your legal brief that the road is being used with the owner's permission "so it may not become a county road by prescription or use adverse to that of the owner." We assume that the county has not purchased the road. If no public interest has arisen under statutes authorizing the establishment of roads or condemnation, adverse possession, or dedication, as limited by article 6812h, the commissioners court has no authority to maintain the road.

SUMMARY

The Bastrop County Commissioners Court has no general authority to maintain private roads. A private road cannot become a public road except as permitted by statute or under the common law theories of dedication, as limited by article 6812h, V.T.C.S., and adverse possession.

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 Sarah Woelk
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpin, Chairman
Colin Carl
Susan Garrison
Tony Guillory
Jim Moellinger
Jennifer Riggs
Nancy Sutton
Sarah Woelk