Honorable Tom Maness Opinion No. m-728
Criminal District Attorney
P. 0. Box 2553 RC2: Whether a county may abandon
Beaumont, Texas 77704 a neighborhood road without re-
placing it
Dear Mr. Meness:
You ask about the authority of the Commissioners Court of
Jefferson County to abandon a particular road without replacing it.
As you describe the situation:
[A]t least eight landowners and the county com-
missioner in Precinct 3 in Jefferson County, Texas
are interested in abandoning Atwood Road, a dead-
end road which lies entirely ecross land belonging
to Mr. Fontenot. The road is not used by any
substatitial segment of the general public except
those persons living along it [the Fontenot
family], and the road does not connect two or more
county roads. Atwood Road is not maintained by the
county but voluntarily by Mr. Fontenot who wants
the county to abandon the road; there are
allegations that the road should never have been
included in the county road system, and there is no
need to replace Atwood Road if it is abandoned.
YOlU question is:
Must the county replace Atwood Road before
discontinuing it pursuant to section 2.002(a)(l)(A)
of the County Road and Bridge Act?
The County Road and Bridge Act, article 6702-1, V.T.C.S., we8
enacted in 1983, Acts 1983, 68th Leg., ch. 288, at 1431. es an act
"relating to a revision of the laws concerning county roads and
bridges" and providing penalties. Its provisions are derivative of
many statutes of long standing that the enactment repealed. Id. 82,
at 1526. See also Acts 1984, 68th Leg., 2d C.S., ch. 8, §l,t 29
(ratifying repeal). Cf. Porter v. Johnson, 140 S.W. 469 (Tex. Civ.
APP. - Dallas 1911, no writ).
p. 3387
Honorable Tom Manes8 - Page 2 (JM-728)
Section 2.002(a) of the new statute -- derived from expressly
repealed article 6703 -- provides:
Sec. 2.002 (a) The Commissioners court shell:
(1) order that public roads be laid out.
opened, discontinued or altered when necessary
except that:
(A) a public road may not be discontinued
until a new road is reedy to replace it. . . .
(Emphasis added).
The power end authority of the commissioners court of a county to
abandon or discontinue recognition of e road as a public road is
distinct from its authority to close a road. In Meyer v. Galveston H.
6 S.A. Railway Co., 50 S.W.2d 268, 273 (Tex. Corn''' App. 1932),
holding approved, the court said, citing Robison v. Whaley Farm
Corporation, 37 S.W.2d 714 (Tex.), reh'g denied, 40 S.W.2d 52 (Tex.
1931):
The authority of the Commissioners' Court to cease
to maintain a road, previously maintained es a
Dublic road, end abandon it as such. is announced
in Robison -v. Whaley Farm Corporaiion (citation
omitted). . . . The Commissioners' Court could
eliminate the public character of this roadway,
but it could not impair the rights which had been
acquired by private citizens to "se it as
such. . . .
Discussions regarding the "discontinuance" of roads are sometimes
confused by a failure to distinguish between the authority of a
commissioners court to abandon rights of a public character in an
existing roadway, end its ability to extinguish private rights that
may have arisen in the "se of the roadway. See Smith County v.
Thornton, 726 S.W.2d 2 (Tex. 1986); Attorney General Opinion V-975
(1949).
From the information you have furnished us, it appears this road
was declared to be a public road in 1973. Inasmuch es the road has
never connected with other roads but has always existed only upon the
landholder's property (terminating in a dead-end), the 1973 order
of the commissioners court declaring it to be a public road was
apparently intended to make it a "neighborhood road" within the
meaning of former article 6711, V.T.C.S., now section 2.006 of article
6702-l. V.T.C.S.
The opinion process of this office is not designed or equipped to
resolve disputed questions of fact. This opinion assumes (but does
p. 3388
Honorable Tom Manes8 - Page 3 (JM-728)
not hold) that this road acquired a public character es a neighborhood
road in 1973, and that the public acquired an easement to use the way
as a public thoroughfare, but not the fee title thereto. It also
assumes that the commissioners court does not now intend to forbid use
of the road (&. to close it), but intends merely to discontinue
recognition of it as a county roadway for maintenance and supervisory
purposes. Cf. MacFarlane v. Davis, 147 S.W.2d 528 (Tex. Civ. App. -
Beaumont 19Kno writ).
Confusion also arises in connection with the "discontinuance" of
roads because statutes and courts sometimes use the word in two
different senses. Cf. Attorney General Opinion C-752 (1966).
Sometimes, as in the Meyer case noted above, the words "abandonment"
or "discontinuance" are used in discussions of roads to signify a
termination of county responsibility for the upkeep, care, and
supervision of the roadway. At other times, the words are used to
indicate the act of terminating the use of the roadway. i.e., closing
it to traffic. See Cyton v. Thacker.474 S.W.2d 570 (Tex. Civ. App.
- Dallas 1971, wx ref d n.r.e.); McFarlane v. Davis, supra.
As set out above, the 1983 County Road and Bridge Act states that
"a public road may not be discontinued until a new road is ready to
replace it." Before the 1983 enactment, the applicable statute
(former article 6703. V.T.C.S.) read in part:
No part of a public road shall be discontinued
until a new road is first built connecting the
parrs not discontinued. (Emphasis added).
The 1983 legislative revision was intended to be non-substantive,
and we do not think the statutory law regarding "discontinued roads"
was changed in 1983. The entire 1983 enactment was reenacted by
Senate Bill No. 24 in a 1984 special session of the legisiature, es
the bill analysis explains:
Most of the laws relating to county roads and
bridges were enacted in the 1920s and 1930s. The
1983 session of the legislature reenacted all of
these statutes, without substantive changes, as
the County Road and Bridge Act. Recently a
question has arisen as to the adequacy of the
title under which the County Road and Bridge Act
was enacted in 1983. Because of these questions,
the entire act has been reintroduced under a more
descriptive title. This will insure the act's
constirutionality.
Bill Analysis to S.B. No. 24, prepared for Transportation Committee,
filed in Bill File to S.B. No. 24, Legislative Reference Library.
p. 3389
Honorable Tom Meness - Page 4 (JM-728)
The purpose of the provision restricting the "discontinuance" of
pert of a road "until e new road is first built connecting the parts
not discontinued" (now, "until a new road is reedy to replace it")
apparently was, end still is. meant to essure that travelers starting
a trip along e county road (and unewere that e parr of it may be
impassable) will not find themselves et a deed-end after a pert of the
trip, unable to proceed to their destination by en alternate route.
See
- Attorney General Opinion M-633 (1970).
Inasmuch as the Commissioners Court of Jefferson County does not
intend to close part of the road to traffic, es we understand the
situation, but, rather, intends to discontinue county maintenance
end supervision of the road in its entirety, the proscription of
subsection 2.002(a)(l)(A) of the County Road end Bridge Act is not
applicable. The county need not replace Atwood Road before
discontinuing it es a county road.
SUMMARY
The statutory provision that a commissioners
court may not discontinue a public road until a
new road is reedy to replace it is not applicable
where the commissioners court does not intend to
close a pert of a neighborhood road to traffic but
instead intends to discontinue county maintenance
end supervision of the road in its entirety.
LjzlJh
Attorney General of Texas
JACK HIGHTOWER
First Aseistant Attorney General
MARY KELLER
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Bruce Youngblood
Assistent Attorney General
p. 3390