Does a Texas county have to maintain the sidewalks in a right-of-way it accepted?

Plain-English summary

A state legislator, writing for several municipal utility districts, asked the AG whether a county that has accepted a public dedication of a right-of-way must maintain the sidewalks in that right-of-way. The example was a Williamson County subdivision served by Dallas Drive, a thoroughfare with sidewalks inside the right-of-way. After the developer built the roads and the County took them over by maintaining Dallas Drive, the County adopted a sidewalk policy that left Dallas Drive off the list and put the upkeep of unlisted sidewalks in unincorporated areas on the adjacent property owners. With no mandatory homeowners association and a utility district that never took on the duty, the effect was to push sidewalk repair onto individual homeowners.

The AG gave one clear legal answer and then explained why the rest turned on facts it could not decide. The legal answer: a county road can include the sidewalks in the right-of-way, because a road is not limited to the traveled surface but takes in the whole width of the public right-of-way, sidewalks included. A county has only the powers granted to it, and it may maintain only public roads; once a public road becomes a county road (accepted into the county's road system by the commissioners court), the county has a general duty to maintain it.

The harder questions, whether Williamson County actually accepted the dedication of these roads and whether that acceptance reached the Dallas Drive sidewalks, are fact questions. Acceptance can be express (a commissioners court vote) or implied (such as making repairs or platting the road on official maps), and simply approving a plat does not convert a dedicated road into a county road. Because whether and how far a county accepted a dedication is a fact question, the AG said it could not determine the County's maintenance obligations for Dallas Drive, and therefore could not say how the County might shed any such obligations. The AG pointed only to Transportation Code section 251.051, which lists the methods a county may use to divest itself of county roads, as a statute the County could use if its terms apply.

Currency note

This opinion was issued in 2016. 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 provisions of the Transportation Code and the subdivision provisions of the Local Government Code may have been amended since 2016, so confirm the current law before relying on these specifics.

What the opinion meant for those who asked

The municipal utility districts and the requesting legislator (as the opinion described it): The opinion told them that a county road can include the right-of-way sidewalks, but that whether Williamson County accepted the dedication and whether its maintenance duty covers the Dallas Drive sidewalks are fact questions outside an AG opinion. The AG did not decide them.

Williamson County (as the opinion described it): The opinion described the County's maintenance obligations for Dallas Drive as something it could not determine, and so it could not advise definitively how the County might divest any such obligations, pointing only to the methods in Transportation Code section 251.051 if they apply.

Property owners next to the sidewalks (as the opinion described it): The opinion did not resolve whether the maintenance burden falls on the County or on the adjacent owners. That depended on the unresolved fact question of acceptance, which the AG treated as beyond an attorney general opinion.

Common questions

Can a Texas county road include the sidewalks in the right-of-way?
Yes. The AG concluded a county road may include the sidewalks in the right-of-way, because a road takes in the whole width of the public right-of-way, not just the traveled surface.

Does a county have to maintain those sidewalks once it accepts a road?
The AG explained that once a public road becomes a county road, the county has a general duty to maintain it, and that road may include the sidewalks; but whether a given county accepted the dedication and whether it reached the sidewalks is a fact question.

Did the AG decide whether Williamson County must maintain the Dallas Drive sidewalks?
No. The AG said whether the County accepted the dedication, and whether the acceptance included the sidewalks, are fact questions beyond the purview of an attorney general opinion.

What does it mean for a county to "accept" a dedicated road?
The AG explained acceptance may be express, by a commissioners court vote, or implied, such as making repairs on the street or platting it on official maps, and that merely approving a plat does not convert a dedicated road into a county road.

Can a county get rid of a road and its maintenance duty after accepting it?
The AG pointed to Transportation Code section 251.051, which sets out the methods by which a county may divest itself of its county roads, including presumably any accompanying maintenance obligations, if those methods apply.

Background and statutory framework

A county holds only the authority granted by the Constitution or statutes or necessarily implied from it, and may maintain only public roads (Tex. Transp. Code §§ 251.003(a)(1), 251.002; City of San Antonio v. City of Boerne, 111 S.W.3d 22 (Tex. 2003)). A county road is a public road accepted into the county's road system by the commissioners court, and a county road may include the sidewalks because the right-of-way takes in the whole width of the street, sidewalks included (State v. NICO-WFI, L.L.C., 384 S.W.3d 818 (Tex. 2012)). Acceptance may be express or implied, and approving a plat under the county subdivision provisions does not by itself convert a dedicated road into a county road (Tex. Loc. Gov't Code §§ 232.001-.108).

Whether and to what extent a public right-of-way has been acquired by dedication on a given road is a fact question that an attorney general opinion cannot resolve, so the AG declined to determine the County's maintenance obligations for Dallas Drive or how it might divest them, pointing to the statutory divestment methods (Tex. Transp. Code § 251.051).

Citations

Statutory provisions:

• Tex. Transp. Code § 251.002 (definition of public road)
• Tex. Transp. Code § 251.003(a)(1) (county authorized to maintain public roads)
• Tex. Transp. Code § 251.051 (methods to divest county roads)
• Tex. Loc. Gov't Code §§ 232.001-.108 (county subdivision regulation)

Cases:

• City of San Antonio v. City of Boerne, 111 S.W.3d 22 (Tex. 2003)
• State v. NICO-WFI, L.L.C., 384 S.W.3d 818 (Tex. 2012)

Prior Attorney General opinions cited:

• Tex. Att'y Gen. Op. No. JM-1241 (1990)
• Tex. Att'y Gen. Op. No. JC-0503 (2002)
• Tex. Att'y Gen. Op. No. GA-0594 (2008)
• Tex. Att'y Gen. Op. No. GA-0659 (2008)
• Tex. Att'y Gen. Op. No. GA-0693 (2009)
• Tex. Att'y Gen. Op. No. GA-1013 (2013)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0075
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2016/kp0075.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

March 28, 2016

The Honorable Jim Keffer Opinion No. KP-0075
Chair, Committee on Natural Resources
Texas House of Representatives Re: Whether a county that has accepted a
Post Office Box 2910 public dedication of a right-of-way is
Austin, Texas 78768 obligated to maintain the sidewalks in that
right-of-way (RQ-0061-KP)

Dear Representative Keffer:

On behalf of several municipal utility districts, you ask whether a county that has accepted a public dedication of a right-of-way is obligated to maintain the sidewalks in that right-of-way. [1] A brief submitted with your request provides an illustrative example about a Williamson County (the "County") neighborhood in one such municipal utility district and provides the following information: The homes in the neighborhood are accessed by several public roads, including Dallas Drive, a major thoroughfare with sidewalks located within the right-of-way. See Letter Brief at 1. "Following the developer's construction of the rights-of-way and other infrastructure in [the neighborhood], the County accepted the dedicated rights-of-way through its maintenance of Dallas Drive and other rights-of-way in the subdivision." Id. at 1-2. Recently the County enacted a sidewalk maintenance and repair policy "to address its maintenance and repair of sidewalks throughout the County" and the policy did not include Dallas Drive. Id. at 2. The County's policy provides that sidewalks not included in the policy that are located in unincorporated areas of the County are to be maintained by the owner of the adjacent property. See id. The neighborhood has no mandatory homeowners association through which to levy funds for sidewalk maintenance. See id. And the municipal utility district containing the neighborhood "has never assumed the responsibility or obligation for maintaining public rights-of-way, including sidewalks." Id. Thus, "the effect of the County's attempt to disclaim maintenance of public sidewalks is to impose that burden on each individual who owns property adjacent to a sidewalk." Id. In this context, you ask "if a county has accepted the public dedication of a right-of-way that includes the sidewalks does the county's maintenance obligations of a subdivision's rights-of-way extend to the adjacent sidewalks and if so can the county at a later date divest itself of the obligation to maintain the sidewalks?" Request Letter at 1.

A county has only the authority that is expressly granted by the Texas Constitution or statutes or that which is necessarily implied therefrom. See City of San Antonio v. City of Boerne, 111 S.W.3d 22, 28 (Tex. 2003). And with respect to road maintenance, a county is statutorily authorized to maintain only public roads. See TEX. TRANSP. CODE § 251.003(a)(1). A public road is a "public road or highway that has been laid out and established according to law and that has not been discontinued." Id. § 251.002. But "not all public roads are part of the system of roads maintained by the county." Tex. Att'y Gen. Op. No. GA-0659 (2008) at 3. "Once a public road has been established as a county road, the county has a general duty to maintain it." Id. A county road is a public road that the commissioners court has accepted into the county's system of roads. Id. at 2. And this office has recognized that a county road may include sidewalks. See Tex. Att'y Gen. Op. No. GA-1013 (2013) at 2 ("In addressing a commissioners court's authority over county roads, we also note that a road is not limited to the area traveled, but includes the whole width of the public right-of-way."); see generally State v. NICO-WFI, L.L.C., 384 S.W.3d 818, 821 (Tex. 2012) (recognizing, with respect to a state highway, that the right-of-way of a street dedicated to the public "includes sidewalks ..., which are a part of the street itself") (quotation marks omitted).

Here, the brief states that "the County accepted the dedicated rights-of-way through its maintenance of Dallas Drive and other rights-of-way in the subdivision." Letter Brief at 2. Acceptance may be express pursuant to a vote by a commissioners court or it may be implied such as "where a county makes repairs upon the street, or plats it on official maps." Tex. Att'y Gen. Op. No. JC-0503 (2002) at 4. And while a county has a ministerial duty to approve a plat and authorize its filing under chapter 232 of the Local Government Code, the mere approval of a plat is not sufficient to render a dedicated public road into a county road. See Tex. Att'y Gen. Op. No. GA-0594 (2008) at 3 ("A commissioners court's approval of a plat allows it to be filed in the county records, but it does not convert private roads represented on the plat into county roads or impose on the county a duty to maintain them."); see also TEX. LOC. GOV'T CODE §§ 232.001-.108 (governing county subdivision regulation). Instead, acceptance of the dedication by a county is required. See generally Tex. Att'y Gen. Op. No. JC-0503 (2002) at 4. Though you suggest that the County has at least impliedly accepted the dedication of these roads into the county road system, the question "whether and to what extent a public right-of-way has been acquired by dedication ... on a given road is a fact question that cannot be resolved" in an attorney general opinion. Tex. Att'y Gen. Op. No. GA-0693 (2009) at 2; see also Tex. Att'y Gen. Op. No. JM-1241 (1990) at 1-2. Thus, we cannot opine on what the County's particular maintenance obligations are with respect to Dallas Drive. Whether the dedicated right-of-way here was accepted by the County and whether that acceptance includes the sidewalks located in the right-of-way are fact questions beyond the purview of an attorney general opinion. See Tex. Att'y Gen. Op. No. GA-0693 (2009) at 1-2.

Yet, because we cannot determine the County's maintenance obligations with respect to Dallas Drive, we also cannot definitively advise you on how the County might divest itself of any maintenance obligations it may have. At most we can point you to Transportation Code section 251.051, which sets out the methods by which a county may divest itself of its county roads, including presumably any maintenance obligations accompanying those county roads. See TEX. TRANSP. CODE § 251.051. To the extent any of the actions in section 251.051 may be applicable to Dallas Drive, the County may utilize them upon compliance with the requirements of the statute.

SUMMARY

A county road may include the sidewalks in the right-of-way. Whether a county has accepted a public dedication of a right-of-way such that the sidewalks are within the county's maintenance obligations is a question beyond the purview of an attorney general opinion.

To the extent any of the actions in Transportation Code section 251.051 may be applicable to Dallas Drive, Williamson County may utilize them upon compliance with the requirements of the statute.

Very truly yours,

KEN PAXTON
Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

CHARLOTTE M. HARPER
Assistant Attorney General, Opinion Committee

[1] See Letter from Honorable Jim Keffer, Chair, House Comm. on Nat. Res., to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Oct. 21, 2015), and attached Letter Brief from Kevin Flahive, Armbrust & Brown, PLLC, to Honorable Jim Keffer (Oct. 15, 2015), https://www.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter" and "Letter Brief," respectively).