THE ATTORNEY GENERAL
OF TEXAS
October 6, 1989
Honorable Pamela K. McKay Opinion No. JM-1105
Kendall County Attorney
204 East San Antonio Street Re: Authority of a commis-
Suite 12 sioners court to reclassify
Boerne, Texas 78006 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, mav erect sates
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-l 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)
P- 5793
Honorable Pamela K. McKay - Page 2 (JM-1105)
provides that a "first-class or second-class road may not be
reduced to a lower class."
Section 2.006 of article 6702-l sets forth the circum-
stances 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 commission-
ers court for an access road connecting his land with a
public road system. Id. 5 2.006(b). Notice must be given
affected landowners and, following a hearing, the commis-
sioners court may declare lines designated in the applica-
tion 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)t Cd).
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 proper-
ty 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 elimin-
ated, and Commissioners Courts are now auth-
orized 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.I In so far as the
amendment seeks to authorize the taking of
private property for private use, it is
unconstitutional .and void.
Maher, suora, at 925.
P. 5794
Honorable Pamela K. McKay - Page 3 (JM-1105)
You have provided us with a copy of a brief filed with
the commissioners court in support of this landower'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 thatthere 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 auth-
ority to reclassify a second-class road as a
neighborhood road.
JIM MATTOX
Attorney General of Texas
MARYKELLER
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
P. 5795