McGraw Minerals, Ltd. v. County of Jasper, Texas

NUMBER 13-14-00373-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

MCGRAW MINERALS, LTD., Appellant,

v.

COUNTY OF JASPER, TEXAS, Appellee.

On appeal from the 1st District Court
of Jasper County, Texas.

MEMORANDUM OPINION
Before Justices Garza, Benavides and Perkes
Memorandum Opinion by Justice Garza
Appellant, McGraw Minerals, Ltd. (“McGraw” or “McGraw Minerals”), filed suit to

contest the inclusion of a road in a county road map adopted under chapter 258 of the

Texas Transportation Code. See TEX. TRANSP. CODE ANN. § 258.004 (West, Westlaw

through 2013 3d C.S.). The trial court granted summary judgment in favor of appellee,

the County of Jasper, Texas (the “County”). McGraw argues by three issues on appeal
that the trial court erred. We reverse and remand.1

I. BACKGROUND

This case concerns a stretch of unpaved road measuring approximately three-

quarters of a mile and situated outside the town of Buna in Jasper County. The road at

issue begins at the end of the paved portion of County Road 707 in the north2 and

terminates at the intersection with County Road 715 in the south. On July 9, 2007, the

County adopted an official road map which designated the road at issue as part of County

Road 707.

On July 25, 2007, McGraw acquired the property which the road traverses. It later

timely filed a petition to contest the road’s inclusion in the county road map. See id. In

its petition, dated May 8, 2008, McGraw alleged that the road at issue “has not been

graded or maintained by the County . . . in more than 30 years” and “has not been

continuously maintained by the County.” The County answered and filed a counterclaim

seeking “[o]rders that establish the right of [the County] to continue maintenance of the

road known as County Road 707 as it crosses the disputed property of [McGraw] . . . .”

Both parties filed motions for summary judgment in late 2013. McGraw asserted

in its motion that there are no issues of material fact and that it is entitled to judgment as

a matter of law. The County argued in its motion that it had properly asserted a public

interest in the road at issue because prescriptive and implied easements were established

along the entire length of County Road 707, including the unpaved portion that traverses

1 This appeal was transferred from the Ninth Court of Appeals pursuant to a docket equalization

order issued by the Texas Supreme Court. See TEX. GOV’T CODE ANN. § 73.001 (West, Westlaw through
2013 3d C.S.).
2 The paved portion of County Road 707 extends eastward and terminates at the intersection with

Farm-to-Market Road 1004 in Buna.

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McGraw’s property. The County further argued that McGraw’s claims are barred by

limitations. Both parties attached evidence to their motions.

The trial court granted the County’s motion and denied McGraw’s motion. Its order

contained a declaration, as requested by the County, that “Jasper County Road 707 is a

public road, subject to county maintenance, from its point of origin at the intersection of

Jasper County Road 707 with Farm-to-Market Road 1004 to a point of terminus at the

intersection of Jasper County Road 707 with Jasper County Road 715.” The trial court

subsequently issued findings of fact and conclusions of law pursuant to McGraw’s

request.3

3 The findings and conclusions stated as follows:
Findings of Fact:
1. The road in dispute, County Road 707, and specifically as the same crosses land
owned by [McGraw], has for many years been reflected upon official road maps as
a county maintained road.
2. The road in dispute was previously the subject of litigation, in which the trial court
made findings regarding a Temporary Injunction Order which among other things
determined that the road now in dispute, County Road 707, was a third class public
road.
3. Bill F. McGraw, the prior title owner of said land now owned by [McGraw Minerals],
had personal knowledge of the prior findings of the District Court of Jasper County
regarding the public nature of County Road 707, as the said road burdens the
[McGraw] property.
4. Jasper County has maintained the roadway in dispute for many, many years, and
has continued to assert a public interest in said roadway, and has continued to
maintain the roadway.
Conclusions of Law:
1. Jasper County has established, to the Court’s satisfaction, an implied dedication
of the disputed roadway, there being sufficient evidence that County Road 707 has
been under continuous maintenance and claimed as a public roadway for many
years.
2. Jasper County is not limited by the provisions of Chapter 258, Texas
Transportation Code, but is entitled to establish its right to continue maintenance
of County Road 707 by any applicable theory of law, including implied dedication,
prescriptive easement, estoppel, or limitations.
3. Jasper County is entitled to continue maintenance of County Road 707, including
both the traveled portion of the roadway, but also the necessary drainage area
related to the roadway, as it crosses the property owned by [McGraw].

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 This appeal followed.4

II. DISCUSSION

On appeal, McGraw argues that the trial court erred by (1) “applying a standard to

Chapter 258 that contradicts the Legislature’s intent and renders certain provisions

meaningless,” (2) granting summary judgment despite the existence of questions of fact,

and (3) unconstitutionally “depriving [McGraw] of its property without compensation.”

A. Applicable Law and Standard of Review

1. Summary Judgments

In advancing a traditional motion for summary judgment, the movant has the

burden of showing there is no genuine issue of material fact and it is entitled to judgment

as a matter of law. TEX. R. CIV. P. 166a(c); Joe v. Two Thirty Nine Joint Venture, 145

S.W.3d 150, 157 (Tex. 2004). An issue of fact is raised if more than a mere scintilla of

evidence is produced as to each essential element of the claim. See, e.g., City of Keller

v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005). Evidence is less than a scintilla is if it is “so

weak as to do no more than create a mere surmise or suspicion that the fact exists.”

Regal Fin. Co. v. Tex Star Motors, Inc., 355 S.W.3d 595, 603 (Tex. 2010). Evidence is

more than a scintilla if it “rises to a level that would enable reasonable and fair-minded

4. County Road 707, in its entirety, inclusive of traveled roadbed and drainage area,
from its point of intersection with Farm to Market Road 1004 to a point of terminus
at the intersection of Jasper County Road 707 with Jasper County Road 715, is a
public road subject to county maintenance.
4 Neither summary judgment motion specified whether it applied to McGraw’s affirmative claim, the

County’s counterclaim, or both. Moreover, the order on appeal does not state to whose claim it applied,
and it does not explicitly state that it disposed of all pending claims and parties. Nevertheless, we have
jurisdiction because the order on appeal “actually disposes of every pending claim and party.” See
Lehmann v. Har–Con Corp., 39 S.W.3d 191, 205 (Tex. 2001) (noting that an appeal may ordinarily only be
taken from a final judgment and that “when there has not been a conventional trial on the merits, an order
or judgment is not final for purposes of appeal unless it actually disposes of every pending claim and party
or unless it clearly and unequivocally states that it finally disposes of all claims and all parties”).

4
people to differ in their conclusions.” Serv. Corp. Int’l v. Guerra, 348 S.W.3d 221, 228

(Tex. 2011).

We review summary judgments de novo. Merriman v. XTO Energy, Inc., 407

S.W.3d 244, 248 (Tex. 2013); Nalle Plastics Family L.P. v. Porter, Rogers, Dahlman &

Gordon, P.C., 406 S.W.3d 186, 199 (Tex. App.—Corpus Christi 2013, pet. denied). We

take as true all evidence favorable to the non-movant and indulge every reasonable

inference and resolve any doubts in the non-movant’s favor. Joe, 145 S.W.3d at 157.

“When the trial court does not specify the grounds for its ruling, a summary judgment must

be affirmed if any of the grounds on which judgment is sought are meritorious.” Merriman,

407 S.W.3d at 248.5

We note that there appears to be confusion about the procedural posture of the

case and the applicable standard of review. In its appellate brief, the County refers

extensively to the trial court’s findings of fact and conclusions of law, and it cites case law

reciting that a trial court’s findings of fact “have the same force and effect as findings by

a jury,” that we may not reverse “[i]f there is any probative evidence supporting the trial

court’s judgment,” and that we “must . . . rely on the findings of fact and may not substitute

[our] own findings for those of the trial court’s findings.” See, e.g., Cenizo Corp. v. City of

Donna, No. 13-12-00308-CV, 2013 WL 1800270, at *1 (Tex. App.—Corpus Christi Apr.

25, 2013, no pet.) (mem. op.). But, as McGraw notes in its reply brief, these propositions

of law apply only to appeals from judgments rendered after a full trial on the merits. See,

5 Ordinarily, when both parties move for summary judgment and the trial court grants one motion
and denies the other, we review all the summary judgment evidence, determine all issues presented, and
render the judgment the trial court should have. Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex.
2013). Here, however, McGraw’s three issues on appeal argue exclusively that the trial court erred in
granting summary judgment to the County. It does not argue, implicitly or explicitly, that the trial court erred
in denying its summary judgment motion. Accordingly, we do not address that issue.

5
e.g., id. (“Findings of fact in a bench trial have the same force and effect as findings by

the jury.” (Emphasis added)).6 Here, the record unequivocally establishes that the case

was before the trial court on motions for summary judgment and that no trial on the merits

was held. The County’s appellate brief acknowledges this.7

As noted, a trial court’s task at the summary judgment stage is merely to determine,

from the evidence presented, whether a disputed issue of material fact has been raised

as to each essential element of the claims raised in the pleadings. See TEX. R. CIV. P.

166a(c). Accordingly, at the summary judgment stage of proceedings, findings of fact

and conclusions of law “can have no purpose and should not be requested, made, or

considered on appeal.” IKB Indus. (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 443

(Tex. 1997); Linwood v. NCNB Tex., 885 S.W.2d 102, 103 (Tex. 1994) (“[F]indings of fact

and conclusions of law have no place in a summary judgment proceeding . . . .”); Jacobs

v. Huser Constr., Inc., 429 S.W.3d 700, 707 n.4 (Tex. App.—San Antonio 2014, no pet.);

see also TEX. R. CIV. P. 296 (“In any case tried in the district or county court without a jury,

any party may request the court to state in writing its findings of fact and conclusions of

6 The County also cites case law stating that “[u]nchallenged findings of fact are binding on the
appellate court unless the findings cannot be supported as a matter of law or there is no evidence to support
the finding”; and that when, as here, there is no reporter’s record filed, “this Court must review the judgment
of the trial court in the light most favorable to the Appellant and must not substitute its own findings for that
of the trial court.” See In re Estate of Elders, No. 13-11-00467-CV, 2012 WL 3757501, at *1 (Tex. App.—
Corpus Christi Aug. 29, 2012, no pet.) (mem. op.); Sharifi v. Steen Auto., LLC, 370 S.W.3d 126, 147 (Tex.
App.—Dallas 2012, no pet.). These propositions of law are also plainly inapplicable in an appeal from a
summary judgment.
7 The content of the findings and conclusions reflects that the trial court was also confused as to

the procedural posture. One of the trial court’s conclusions of law was that there was “sufficient evidence”
to show an implied dedication of the road at issue. But whether property has been implicitly dedicated for
public use is a question of fact. Lindner v. Hill, 691 S.W.2d 590, 591 (Tex. 1985); McCulloch v. Brewster
Cnty., 391 S.W.3d 612, 616 (Tex. App.—El Paso 2012, no pet.); Scott v. Cannon, 959 S.W.2d 712, 718
(Tex. App.—Austin 1998, pet. denied). Therefore, no matter how “sufficient” the evidence is supporting
implied dedication, summary judgment would only be proper if McGraw was unable to create a fact issue
by producing more than a scintilla of evidence that there was no implied dedication. See TEX. R. CIV. P.
166a(c).

6
law.”). We will therefore disregard the findings, see IKB Indus., 938 S.W.2d at 443;

Jacobs, 429 S.W.3d at 707 n.4, and review the judgment de novo. See Merriman, 407

S.W.3d at 248.

2. Transportation Code Chapters 258 and 281

Chapter 258 of the Texas Transportation Code allows a county to adopt a county

road map in order to “clarify the existence of a public interest in a road.” TEX. TRANSP.

CODE ANN. § 258.001 (West, Westlaw through 2013 3d C.S.). The chapter applies only

to a county that “initiates or completes compliance” with the chapter’s provisions before

September 1, 2011. Id. § 258.007 (West, Westlaw through 2013 3d C.S.).8 Pursuant to

chapter 258, a county may include in the map “each road in which the county claims the

existence of a public interest: (1) under Chapter 281 or other law; or (2) as a result of

having continuously maintained the road with public funds beginning before September

1, 1981.” Id. § 258.002(a) (West, Westlaw through 2013 3d C.S.). A road’s inclusion in

a road map adopted under chapter 258 then serves as “conclusive evidence” of (1) the

public’s right of access over the road, and (2) the county’s authority to spend public money

to maintain the road. Id. § 258.003 (West, Westlaw through 2013 3d C.S.).

A person may appear before the county commissioners court or file a written

protest with the county judge to protest the county’s claim of a public interest in a road.

Id. § 258.002(b). If a protest is filed, the commissioners court must appoint a “jury of view”

consisting of “five property owners who have no interest in the outcome of the protest” to

determine the validity of the county’s claim. Id. A person may also “contest the inclusion

8 It is undisputed that the County “initiate[d] or complete[d] compliance” with the provisions of
chapter 258 prior to September 1, 2011. See TEX. TRANSP. CODE ANN. § 258.007 (West, Westlaw through
2013 3d C.S.).

7
of the road in the county road map by filing a suit in a district court in the county in which

the road is located not later than the second anniversary of the date on which the county

road map including the road was adopted.” Id. § 258.004(a). In a contest suit, “[t]he

county has the burden of proving that the county has continuously maintained, as that

term is defined by Section 258.002, the road in question.” Id. § 258.004(b). A party need

not first file a protest with the commissioners court or county judge in order to file a contest

suit in the district court. Bastrop Cnty. v. Samples, 286 S.W.3d 102, 109 (Tex. App.—

Austin 2009, no pet.).

Under common law, a county may acquire a public interest in a private road

through the owner’s express or implied dedication of the road for public use. McCulloch

v. Brewster Cnty., 391 S.W.3d 612, 616 (Tex. App.—El Paso 2012, no pet.). However,

with the enactment of chapter 281 in 1981, the Texas Legislature effectively abolished

implied dedication for roads in counties with populations of 50,000 or less.9 See id. at

616 n.1. Under chapter 281, such counties may acquire a public interest in a private road

only by: (1) purchase; (2) condemnation; (3) express dedication; or (4) a court’s final

judgment of adverse possession. Id. § 281.002 (West, Westlaw through 2013 3d C.S.);

see id. § 281.003(b) (West, Westlaw through 2013 3d C.S.) (stating that “[a]n oral

dedication or intent to dedicate by overt act is not sufficient to establish a public interest

in a private road” under chapter 281).

Nevertheless, chapter 281 does not apply retroactively. Lindner v. Hill, 691 S.W.2d

590, 592 (Tex. 1985); Las Vegas Pecan & Cattle Co. v. Zavala Cnty., 682 S.W.2d 254,

256 (Tex. 1984). Therefore, the statute does not affect implied dedications made before

9 It is undisputed that Jasper County has a population of 50,000 or less.

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the statute’s effective date of August 31, 1981. Lindner, 691 S.W.3d at 592; Las Vegas

Pecan & Cattle Co., 682 S.W.2d at 256 (finding that the predecessor to chapter 281 “does

not divest the County” of an “easement resulting from an implied dedication of public use

of the road in question prior to the effective date of the statute”); see Mitchell v. Ballard,

420 S.W.3d 122, 130 (Tex. App.—Texarkana 2012, no pet.); Scown v. Neie, 225 S.W.3d

303, 309 (Tex. App.—El Paso 2006, pet. denied) (noting also that, “[i]f an implied

dedication occurred prior to [the effective] date by a previous owner, a subsequent

purchase of the property does not affect the dedication”); see also Act of May 31, 1981,

67th Leg., R.S., ch. 613, 1981 TEX. GEN. LAWS 2412–13, amended by Act of May 1, 1995,

74th Leg., R.S., ch. 165, § 1, 1995 TEX. GEN. LAWS 1025, 1195–96.

B. Summary Judgment Evidence

McGraw’s summary judgment motion included an affidavit by its founder, manager

and attorney, Bill F. McGraw. McGraw stated in the affidavit that he and his wife owned

the property at issue prior to transferring it to McGraw Minerals in 2007; that the road at

issue “has not been continuously maintained” by the County; that, prior to the lawsuit, the

last time the County graded the road was in 1987, which was the first time the road had

been graded or maintained by the County in eight years; and that, in October of 1987,

McGraw “personally filed a lawsuit for J. A. Adams . . . concerning the road in question

and was successful in obtaining an injunction against the County.” The affidavit stated

the County “did not grade or maintain the subject road, at all, or spend any taxpayer

money on this road from September 28, 1987, until May 6, 2010, nearly two years after

our lawsuit . . . .” According to McGraw, from 1987 to 2008, he “personally paid for all the

grading, maintenance and upkeep” of the road at issue.

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 Other evidence attached to McGraw’s motion included: (1) the general warranty

deed transferring the property to McGraw Minerals; (2) applications filed with the Texas

Railroad Commission to drill wells on the property; (3) photographs of the road and the

property; and (4) a letter from McGraw to the County’s counsel dated October 17, 2007,

stating in part that “I carefully complied with all the applicable mandates of Section

251.052, Subsection (a), (b) and (c), Transportation Code.” The 2007 letter also stated

that “[t]he portion of [County Road] 707 I want discontinued serves no public purpose”

and that, “[a]s I understand the statutes, if I recognize a public road, I am estopped from

questioning its legality.”

In support of its motion, the County attached, among other things, a December 2,

1987 district court order granting a temporary injunction to J.A. Adams, who was

represented by McGraw, in a suit filed against the County regarding the same road. The

order refers to gates that had been placed on the road between September and October

of 1987 and states, among other things: “The road in question is a public road”; “There

is no record of any deed or easement to the [County] for the road right-of-way in question”;

and “The gates are necessary . . . for protection of Plaintiff’s property.” The order enjoined

the county and its commissioners from: (1) “Taking further action to classify the road in

question based upon a less than unanimous vote”; (2) “treating the road in question as a

Class 2 road”; (3) “widening or causing the widening of the road in question in any manner

from its present condition”; (4) “removing or causing the removal of the gates on the road

in question”; or (5) “interferring [sic] with Plaintiff’s use of the gates on the road in

question.”

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 Also attached to the County’s motion were four certified copies of “historical

general highway maps” of the area from Texas Department of Transportation records,

two of which are dated 1936 and two of which are dated 1971. The maps each appear

to depict the road at issue.

The County’s motion was further accompanied by four affidavits executed by long-

time residents of the area. Aubrey Cole, a former Jasper County Sheriff, stated that he

has lived in the Buna area for 83 years and that County Road 707 “has always run from

what is today FM 1004 to what is now County Road 715, although those roads had

different names back then.” Cole stated: “For as long as I can remember, which is back

some 75 years, County Road 707 has been a public road and it was open to the public

and was regularly traveled by everyone and it was also used by the mail carriers.” He

stated that “[t]his road has always been maintained by Jasper County.” Willie Martin

stated that he is 70 years old and that he has lived on County Road 707 “or in the

immediate area” for his entire life. Martin stated: “It has always been common knowledge

that this is a county road. During my lifetime, and at all times to my knowledge, what I

know as County Road 707 has always been that length of road from FM 1004 all the way

to County Road 715.” He stated: “I remember seeing the county’s maintainer passing

my grandparents’ house throughout the years. We would be outside on the porch and

see the maintainer pass as it repaired the road.” According to Martin, “[t]his roadway has

always been open to public use, has been under regular and routine Jasper County

maintenance, and has not been closed to public use at any time.” Charles Eaves stated

in part that he worked for the County for twenty years starting in 1972 and that he has

“graded all the roads within Precinct 4 during [his] employment, including what is now

11
called County Road 707 . . . .” Mack Rose, a former county commissioner, stated in part

that, “so far as I am aware, [the County] has maintained what is now known as County

Road 707 as far back as anyone remembers.”

C. Construction of Chapter 258

McGraw contends by its first issue that the trial court incorrectly applied chapter

258. Our primary objective when construing a statute is to give effect to the Legislature’s

intent. State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006). We seek that intent first

and foremost in the statutory text, see id., and we rely on the plain meaning of the text

unless a different meaning is supplied by legislative definition or enforcing the plain

language would produce absurd results. See Entergy Gulf States, Inc. v. Summers, 282

S.W.3d 433, 437 (Tex. 2009).

McGraw argues in particular that the trial court impermissibly allowed the County

to claim a public interest in the road at issue by means other than continuous maintenance

since before 1981. McGraw contends that, “[r]egardless of the method of protest or the

basis of the county’s claim, Chapter 258 is very clear: the county has the burden of

showing continuous maintenance of the road in question from before September 1, 1981.”

See TEX. TRANSP. CODE ANN. § 258.004(b) (stating that, in a map contest suit, “[t]he

county has the burden of proving that the county has continuously maintained, as that

term is defined by Section 258.002, the road in question”); see also id. § 258.002(h) (“In

this section, ‘continuous maintenance’ means grading or other routine road maintenance

beginning before September 1, 1981, and continuing until the date of protest.”).

The Waco Court of Appeals considered this issue in Coryell County v. Harrell, 379

S.W.3d 345, 350–51 (Tex. App.—Waco 2011, no pet.). There, Coryell County argued

12
that, “because continuous maintenance is the only type of claim for which the Legislature

specified the burden of proof, then necessarily it is the only type of claim that can be

contested by the contest provision.” Id.10 The court disagreed, concluding that

continuous maintenance is merely “a particular type of claim to a road” by a county, and

that section 258.004(b) “simply clarified [that] for this one type of claim, when contested

under section 258.004(a), . . . the burden of proof is on the county.” Id. at 351.

For all other claims to a public interest in a road under section 258.002,
case authority, the ordinary rules of pleading, procedure and proof, and the
nature of the interest that is being asserted provide the manner in which
these contests will be decided. Thus, to the extent that the County’s claim
is a public right by dedication, the [plaintiffs] must defeat that claim by
establishing, for example, a title superior to the claim of express dedication
or a defective dedication. But to the extent the County claims as an
alternative basis for the public interest in the road that it was continuously
maintained by the County, the burden will be on the County.

Id.

We concur with the conclusion of the Harrell court. Section 258.002(a) states that

a county may claim a public interest in a road in one of two ways: “(1) under Chapter 281

or other law; or (2) as a result of having continuously maintained the road with public

funds beginning before September 1, 1981.” TEX. TRANSP. CODE ANN. § 258.002(a).

Although section 258.004(b) states that the “[t]he county has the burden of proving”

continuous maintenance, the subsection does not state that it applies to all map contest

suits brought under section 258.004(a), without regard to whether the County is actually

asserting a public interest due to continuous maintenance. See id. § 258.004(b). The

10Coryell County took this position in the context of its broader argument that chapter 258 does not
contain a clear waiver of governmental immunity for a map contest suit. See Coryell Cnty. v. Harrell, 379
S.W.3d 345, 350–51 (Tex. App.—Waco 2011, no pet.). The court found that immunity was effectively
waived for all map contests under chapter 258, including those where the alleged public interest is not
based on continuous maintenance. Id. at 350–51.

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statute does not state which party bears the burden of proof when the county asserts a

public interest in a road by means other than continuous maintenance. See id. And it

does not explicitly state that continuous maintenance is the only way a county may claim

a public interest in a road—if it did, it would conflict with section 258.002(a). See id. §§

258.002(a), 258.004.

As the Waco court noted with admirable restraint, the statute is not a “model of

perfect clarity.” Harrell, 379 S.W.3d at 349. But we will not construe the statute in a

manner that would result in an internal conflict. See TEX. GOV’T CODE ANN. § 311.021(2)

(West, Westlaw through 2013 3d C.S.) (providing that it is assumed, when the Legislature

enacts a statute, that it intends for the “entire statute . . . to be effective”); id. § 311.026

(West, Westlaw through 2013 3d C.S.) (“If a general provision conflicts with a special or

local provision, the provisions shall be construed, if possible, so that effect is given to

both.”); Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238, 256 (Tex.

2008) (“We construe statutes to give effect to every provision and ensure that no provision

is rendered meaningless or superfluous.”). Instead, we construe section 258.004(b) as

being applicable only to the extent a county actually asserts continuous maintenance as

the basis for its claim to a public interest. See Harrell, 379 S.W.3d at 351. To hold

otherwise would be contrary to the intent of the legislature as evidenced by section

258.002, which allows a county to claim a public interest in a road “under Chapter 281 or

other law.” TEX. TRANSP. CODE ANN. § 258.002(a)(1); see Harrell, 379 S.W.3d at 351.

McGraw cites two opinions from other Texas courts of appeals which it contends

are in conflict with Harrell. In Wallace v. Kent County, a jury found that Kent County had

properly established a public interest in a road for three reasons: (1) the county had

14
continuously maintained the road with public funds since before September 1, 1981; (2)

the county was entitled to a prescriptive easement prior to September 1, 1981; and (3)

the county proved that the road had been implicitly dedicated to public use before

September 1, 1981. No. 07-11-00427-CV, 2013 WL 4531253, at *1 (Tex. App.—Amarillo

Aug. 21, 2013, no pet.) (mem. op.). The Amarillo court of appeals sustained the

appellant’s issues arguing that the evidence was insufficient to support the prescriptive

easement and implied dedication findings. Id. at *5–7. The court then concluded, sua

sponte, as follows:

Even if Kent County were able to establish a prescriptive easement or
implied dedication of the disputed road prior to September 1, 1981, we also
find there is no evidence Kent County asserted any valid claim of the
existence of a public interest in the disputed road because the county failed
to come forward at trial with any “written records or other information
documenting” the road’s continuous maintenance since before September
1, 1981. . . . Although Chapter 258 was enacted to assist counties to prove
up a public interest in roads, we cannot ignore Chapter 258’s plain
language.

Id. at *7. By “Chapter 258’s plain language,” the Amarillo court seemed to be referring to

subsection (b) of section 258.002, which pertains exclusively to protest proceedings in

the county commissioners court and which states: “A county has a valid claim of the

existence of a public interest in a road if it provides written records or other information

documenting the county’s continuous maintenance of the road beginning before

September 1, 1981.” TEX. TRANSP. CODE ANN. § 258.002(b).11 We note that the plaintiff

11 The entire subsection reads as follows:
A commissioners court that proposes a county road map under this section shall hold a
public meeting at which a person asserting a private right, title, or interest in a road in which
the county has claimed the existence of a public interest may appear before the
commissioners court to protest the county’s claim. A person asserting a private right, title,
or interest in a road may also file a written protest with the county judge at any time before
the public meeting. The commissioners court shall appoint a jury of view consisting of five
property owners who have no interest in the outcome of the protest to determine, by a
majority vote after a public hearing and an examination of the county’s road maintenance

15
in Wallace apparently never filed a protest with the commissioners court. See 2013 WL

4531253, at *1 (“Wallace initially sought to contest this inclusion by filing suit in district

court pursuant to section 258.004(a).”). It is unclear from the record whether McGraw

ever filed a protest with the commissioners court. In any event, the judgment on appeal

is an order from the district court in a map contest suit under section 258.004.

Accordingly, to the extent the Wallace court concluded that a showing of “written records

or other information documenting . . . continuous maintenance” is the exclusive method

by which a county may prevail in a map protest proceeding before the commissioners

court, that conclusion is immaterial to our analysis. On the other hand, to the extent the

Wallace court concluded that such a showing is required in a map contest suit filed in

district court, that conclusion has no basis in the statute, and we disagree with it.

McGraw also cites Bastrop County v. Samples, in which the Austin court of appeals

concluded that a party seeking to challenge the inclusion of a road in the county road map

need not file a protest with the commissioners court under section 258.002(b) prior to

filing a contest suit in district court under section 258.004. 286 S.W.3d at 103. The court

noted in passing that “[t]he county has the burden of proving that the county has

continuously maintained . . . the road in question.” Id. (quoting TEX. TRANSP. CODE ANN.

§ 258.004(b)). The court did not address whether a county, in a map contest suit, may

records and other information, the validity of the county’s claim of the existence of a public
interest in the road. A county has a valid claim of the existence of a public interest in a
road if it provides written records or other information documenting the county’s continuous
maintenance of the road beginning before September 1, 1981. The determination of the
jury of view is binding on the commissioners court, and the commissioners court shall
revise the proposed county road map accordingly.
TEX. TRANSP. CODE ANN. § 258.002(b); see supra n.6.

16
claim a public interest in a road by means other than continuous maintenance.

Accordingly, Samples is inapposite to our analysis.

McGraw alleges that the interpretation of section 258 espoused in Harrell is

contrary to legislative intent, pointing to a Texas House of Representatives analysis of the

bill that became chapter 258, which states in part: “The bill . . . would require a county to

validate its claim to the road by providing written records or other information documenting

‘continuous maintenance’—defined as grading or other routine maintenance—beginning

before September 1, 1981.” House Comm. on Transp., Bill Analysis, Tex. H.B. 1117,

78th Leg., R.S. (2003).12 But the same analysis states, two sentences later, that “[a]

county commissioners court could propose a county road map showing roads acquired

by purchase, condemnation, dedication, or a court’s final judgment of adverse

condemnation under Transportation Code, sec. 281.002, or roads claimed as public roads

because of continuous maintenance with public funds beginning before September 1,

1981.” Id. (emphasis added). We do not believe that our interpretation of the statute

frustrates any intent of the legislature as evidenced by this bill analysis.

McGraw further contends that the County “should be estopped from asserting that

a standard other than continuous maintenance applies in this case.” See Lopez v. Munoz,

Hockema & Reed, L.L.P., 22 S.W.3d 857, 864 (Tex. 2000) (“Quasi-estoppel precludes a

party from asserting, to another’s disadvantage, a right inconsistent with a position

previously taken.”). McGraw directs us to a document entitled “Jury of View Selection

and Duties” which was attached to its summary judgment motion, and which states, under

the heading “Duty of Jury of View,” as follows:

12 A copy of the bill analysis was attached to the County’s summary judgment motion.

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 According to § 258.002 of the Transportation Code, the duty of the Jury of
View is to determine: the validity of the county’s claim of the existence of a
public interest in the road. A county has a valid claim of the existence of a
public interest in a road if it provides written records or other information
documenting the county’s continuous maintenance of the road beginning
before September 1, 1981.

McGraw also directs us to the order adopting the road map that is the subject of this case,

which was also attached to the County’s motion. The order lists four protests that were

considered and ruled upon by a jury of view appointed by the commissioners court; each

of the protests argued that the county had not continuously maintained the road sought

to be included in the map.

We do not believe these documents support McGraw’s argument. They pertain

only to map protests filed with the commissioners court, not map contest suits filed with

the district court. As noted, the statute governing map protests before the commissioners

court states that “[a] county has a valid claim of the existence of a public interest in a road

if it provides written records or other information documenting the county's continuous

maintenance of the road beginning before September 1, 1981,” TEX. TRANSP. CODE ANN.

§ 258.002(b), but the statute governing map contests in the district court does not contain

such language. See id. § 258.004(b). Section 258.004(b) does state that “[t]he county

has the burden of proving that the county has continuously maintained . . . the road in

question,” id., but we have already determined that this does not mean that continuous

maintenance is the exclusive means by which a county may claim a public interest in a

contest suit. Instead, a county may also claim a public interest “under Chapter 281 or

other law.” Id. § 258.002(a). We disagree that, on the basis of these documents, the

County should be estopped from asserting a public interest in a road by means other than

continuous maintenance.

18
 Finally, we disagree with McGraw’s contention that, under Harrell, section

258.004(b) and parts of section 258.002(b) are rendered meaningless. See Columbia

Med. Ctr. of Las Colinas, Inc., 271 S.W.3d at 256. Rather, under this construction, the

provision in section 258.002(b) requiring “written records or other information

documenting the county’s continuous maintenance” would still apply in map protest

proceedings before the commissioners court to the extent a county alleges a public

interest in a road based on continuous maintenance. See TEX. TRANSP. CODE ANN.

§ 258.002(b). Similarly, section 258.004(b), regarding the county’s burden to prove

continuous maintenance in a contest suit, would still apply in a map contest suit to the

extent a county alleges a public interest in a road based on continuous maintenance. See

id. § 258.004(b).

For the foregoing reasons, we overrule McGraw’s first issue.

D. Fact Issues

Having concluded that chapter 258 permits a county in a contest suit to claim a

public interest in a road by means other than continuous maintenance, we proceed to

consider the merits of the County’s summary judgment motion.

The only bases for a public interest asserted by the County in its motion are

prescriptive easement and implied dedication.13 “To obtain a prescriptive easement one

13 Although the County asserts on appeal that it presented “evidence to support the contention of
longstanding county maintenance existing both prior and subsequent to 1981,” it did not argue in its
summary judgment motion that there was a public interest in the road due to continuous maintenance.
Therefore, the trial court could not have properly granted the motion on this ground. See G & H Towing
Co. v. Magee, 347 S.W.3d 293, 297 (Tex. 2011) (noting that summary judgments “may only be granted
upon grounds expressly asserted in the summary judgment motion”). Even if the County did raise this issue
in its motion, summary judgment would not be proper because fact issues were raised by McGraw’s
affidavit, which stated that the County maintained the road only once between 1979 and 2008. See TEX.
R. CIV. P. 166a(c); see also TEX. TRANSP. CODE ANN. § 258.002(h) (defining “continuous maintenance” as
“grading or other routine road maintenance beginning before September 1, 1981, and continuing until the
date of protest”).

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must use someone else’s land in a manner that is open, notorious, continuous, exclusive,

and adverse for the requisite period of time.” Brooks v. Jones, 578 S.W.2d 669, 673 (Tex.

1979). The essential elements of implied dedication are: (1) the acts of the landowner

induced the belief that the landowner intended to dedicate the road to public use; (2) the

landowner was competent to do so; (3) the public relied on these acts and will be served

by the dedication; and (4) there was an offer and acceptance of the dedication. Las Vegas

Pecan & Cattle Co., 682 S.W.2d at 256. Implied dedication “requires showing

unmistakable acts on the part of the landowner that clearly establish his intent to donate

the land to public use.” Long Island Owner’s Ass’n, Inc. v. Davidson, 965 S.W.2d 674,

679 (Tex. App.—Corpus Christi 1998, pet. denied). Because chapter 281 does not permit

a county to claim a public interest in a road by prescriptive easement or implied

dedication, any such interest must have been established prior to August 31, 1981, the

effective date of the statute. See TEX. TRANSP. CODE ANN. § 281.002; Las Vegas Pecan

& Cattle Co., 682 S.W.2d at 256.

The County points to affidavit testimony by Cole, Martin, Eaves, and Rose which

it contends establishes that “the roadway has been county maintained at the public’s

expense, and that such maintenance has been regular and routine over many, many

years.” The County also argues that the road maps attached to its motion “reflect that the

roadway now known as County Road 707 has been in existence in the same configuration

as it has today since at least 1936” and show “a consistent and uninterrupted chain of

public road maintenance of what is today known as Jasper County Road 707 from 1936

until the present day.”14

14 We note that the maps, as they appear in the record before this Court, are blurry and the legends
are illegible. Although they each appear to depict the road at issue, there was no evidence adduced that

20
 The County did not establish its entitlement to judgment as a matter of law on either

prescriptive easement or implied dedication.15 See TEX. R. CIV. P. 166a(c). Even

assuming that the County’s evidence establishes the facts which the County claims it

establishes, it was contradicted by McGraw’s affidavit stating that the County “graded or

maintained” the road only once between 1979 and the time he filed his contest suit.

Moreover, the County’s evidence does not establish that its use of the road at issue was

“open, notorious, continuous, exclusive, [or] adverse,” see Brooks, 578 S.W.2d at 673, or

that any landowner committed acts that “induced the belief that the landowner intended

to dedicate the road to public use” or that there was any “offer and acceptance” of a

dedication. See Las Vegas Pecan & Cattle Co., 682 S.W.2d at 256.

The County further argues on appeal as follows:

Ironically, the same act that serves to estoppel [sic] McGraw and his
successors in title from claiming County Road 707 as a private road is also
evidence of implied dedication. By admitting that the road was a county
road that he had a right to gate, McGraw sought permission from the County
Commissioners Court to erect a gate. To do that, McGraw had to admit that
the road was a public road under the control of the Jasper County
Commissioners Court. McGraw admitted that he could not lock the gate
upon the public road. By seeking to install a gate on what Appellant’s former
and present lawyer admitted was a public road maintained by Jasper
County in 1987, the nature of the roadway was established. It is admitted
by all parties that Jasper County never acquired a right-of-way across
Appellant’s property by deed or purchase, so the only way Jasper County
could have acquired the necessary right-of-way for the existence of the
public road McGraw sought to gate was by prescription or implied
dedication. Implied dedication can be inferred by acts or deed. By admitting

all roads depicted in the map are necessarily public roads. Additionally, the affidavits of Eaves and Rose
merely established that the county regularly maintained the road known as “County Road 707”; they do not
specifically refer to the portion of that road at issue in this case.
15Consistent with its apparent misunderstanding of the procedural posture of the case and the
standard of review applicable to the appeal, the County does not assert on appeal that its summary
judgment evidence conclusively established a prescriptive easement or implied dedication such that no fact
issue was raised. Instead, it argues that its evidence “rebutted” and “contradict[ed]” McGraw’s evidence.

21
 that the county had such a right-of-way, Appellant concedes that the Court’s
finding of implied dedication is sustained by the evidence.

(Citations omitted.) The County appears to be referring here to two pieces of evidence

attached to its motion: (1) the injunction entered in the 1987 suit filed by McGraw as

attorney for J.A. Adams in which Adams apparently sought to prevent the County from

removing a gate Adams installed on the road; and (2) the 2007 letter from McGraw to the

county’s counsel. The injunction states in part that “[t]he road in question is a county

road”; but as the County concedes on appeal, the lawsuit was eventually dismissed and

“it is doubtful that the concepts of judicial estoppel or claims preclusion apply in the

absence of a final judgment in that cause.”16 The County further argues on appeal that

McGraw’s 2007 letter “refers to [section] 251.010 of the Texas Transportation Code” and

that this statute applies only to public roads. See TEX. TRANSP. CODE ANN. § 251.010

(West, Westlaw through 2013 3d C.S.) (providing in part that “[a] person, including a

neighborhood association, who owns or controls real property on which a third-class road

or a neighborhood road established under Section 251.053 is located for which the right-

of-way was obtained without cost to the county may erect a gate across the road when

necessary”). We have reviewed the letter and can locate no reference to this statute.

McGraw does state in the letter that he “carefully complied with all the applicable

mandates of Section 251.052, Subsection (a), (b) and (c), Transportation Code,” but this

16 Another reason judicial estoppel and claim preclusion would not apply is that McGraw was not a

party to the 1987 litigation. See Ferguson v. Bldg. Materials Corp. of Am., 295 S.W.3d 642, 643 (Tex. 2009)
(“Judicial estoppel precludes a party who successfully maintains a position in one proceeding from
afterwards adopting a clearly inconsistent position in another proceeding to obtain an unfair advantage.”);
Hallco Tex., Inc. v. McMullen Cnty., 221 S.W.3d 50, 58 (Tex. 2006) (“The doctrine of res judicata, or claim
preclusion, bars a second action by parties and their privies on matters actually litigated in a previous suit,
as well as claims which, through the exercise of diligence, could have been litigated in a prior suit.” (Internal
quotations omitted)).

22
statute does not explicitly state that it applies only to public roads. See id. § 251.052

(setting forth a procedure by which “[t]he residents of a precinct may apply for a new road

or a change in an existing road”). In any event, to the extent the letter constitutes

evidence that McGraw or any predecessor “admit[ted] that the road was a public road,”

as the County suggests, that evidence was contradicted by McGraw’s affidavit and

therefore would not establish the County’s entitlement to judgment as a matter of law.

See TEX. R. CIV. P. 166a(c).17

Finally, the County asserted in its motion that summary judgment was warranted

on the basis of limitations.18 In particular, it argued:

Upon assumption of title, Plaintiff is charged with notice of visible
easements upon the ground. . . . [McGraw and McGraw Minerals] had
acknowledged in recorded legal instruments the existence of a county road
upon the entirety of the real property they owned. Had there been any
dispute regarding the status of the road, these predecessors in title,
including the Plaintiff herself [sic], should have resolved the matter or suffer
a bar to claims by way of limitations imposed by the two year period of
limitations regarding real estate contained in § 16.024 and § 16.003 of the
Texas Civil Practice and Remedies Code. . . . As a consequence, Plaintiff
was charged with notice of the existence of these road easements, and if it
felt its property interests were in jeopardy, a suit to quiet title claim should
have been asserted within the applicable periods of limitation. Having failed
to raise or litigate the issue, Plaintiff is now time barred.

The County did not cite any evidence, and we find none in the record, establishing that

McGraw or any previous owner “acknowledged in recorded legal instruments the

existence of a county road upon the entirety of the real property they owned.” In any

17 The County appears to also contend that the letter constitutes a judicial admission by McGraw
that the road at issue is a public road. But this argument was not made in the County’s summary judgment
motion. Accordingly, the motion could not have been properly granted on this ground. See G & H Towing
Co., 347 S.W.3d at 297.
18 Although the County does not address the limitations issue on appeal, we consider whether
summary judgment was proper on this ground because it was raised in the motion and the trial court did
not specify the grounds for its ruling in its order. See Merriman, 407 S.W.3d at 248.

23
event, there is no dispute that McGraw filed his map contest suit within the two-year

limitations period following the adoption of the map, as specified in chapter 258. See TEX.

TRANSP. CODE ANN. § 258.004(a). We conclude that summary judgment was not proper

on this ground.

Because none of the grounds raised by the County in its motion were meritorious,

the trial court erred in granting summary judgment. McGraw’s second issue is sustained.

E. Takings Claim

McGraw contends by his third issue that the trial court’s ruling unconstitutionally

“depriv[ed it] of its property without compensation.” See U.S. CONST. amend. V; TEX.

CONST. art. I, § 17.19 In light of our conclusion that summary judgment in favor of the

County was error, we need not address the issue. See TEX. R. APP. P. 47.1.

III. CONCLUSION

We reverse the trial court’s judgment and remand for further proceedings

consistent with this opinion.

DORI CONTRERAS GARZA,
Justice

Delivered and filed the
7th day of May, 2015.

19 This claim was not raised in any pleading. In its reply brief, McGraw states: “Appellant raises

this point not to assert a new claim, but to highlight the incongruity of Appellee’s position in this case.”

24