.December 5, 1969
Honorable Larry Miller Opinion No. M-534
County Attorney
Hunt county Re: Whether the commisrioners
Greenville, Texas court has,the powar to Ue-
termine whether a road ir,
or is not, a county road;
has,.or haa not, been aban-
doned.under Article 6703a;
andwhether it may order the
removal of .an obstruction
from a road, the public nature
Dear Mr. Miller: of which ia in doubt.
myour request,for opinion you arrked.thefollowing questiona:
(1) "Does the CoIPAd8~ioner'aCourt have the power
to datemine whether or not a road is a county
road?
(2). Doe8 the Commissioner'o Court have the power to
determine whether or not.a road has been aban-
doned under Vernon's.Revised.Civil Statutes,
Artich 6703111
(3) Doe8 the Commissioner's Court have the power to
order the removal of an obstruction from a road
which has,not beea cloned by a'petition under
Article 6705 of the Revised Civ,ilStatutes of
Texas? ,!
A general statement of the law applicable to all three que8-
tion8 is met out.in the fqllowinq quotation:
"ALthough the commi+sioners' court, as the active
governing body of the county, haa jurisdiction
touching in some respeot.almoat every feature
of the county’s buainesa, itr power extends only
to such bu8ineaa of the county as ia entrusted to
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Honorable Larry Miller, page 2 (M-534)
it by the constitution or statute. In other
words, the jurisdiction of the commissioners'
court over the county business is not general
and all-inclusive, but is limited to matters
or powers specifically covered by the con-
stitution and statutes. The court does not
have qene,ralpolice powers. Moreover, it must
conform to the statutory mode prescribed for
the exercise of its~powers." 15 Tex.Jur.Zd,
261, Counties, Sec. 35, and cases there cited.
Ai.ticle 2351, Vernon's Civil Statutes, in part provides
that:
"Each commissioners court shall:
.. .
"3. Lay out and establish, change and dfs-
continue public roads and highways.
. . .
"6. Exercise general control over all roads,
highways,,ferries and bridges in their
countie,s.
.. .
"15. Said court shall have all such other
powers and jurisdiction, and shall per-
form all such other duties, as are now
or may hereafter be prescribed by law."
Article 6703, V.C.S., in part, prwidb that:
"The commissioners court shall order the laying
out and opening of public roads when necessary,
and discontinue or alter any road when it shall
be deemed expedient...."
Statutes'immediately following Article 6703, supra, spell out
the details to be followed thereunder.
No specific constitutional or statutory provisions have been
located which would grant-to the cammissioners court the power to
make the judicial'determination respectinq,the rights of persons
in real property which would be.involved in the determination of
whether.any given area.,ofland is,or is not presently burdened
with a public right of passage. The district courts have exclusive
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Honorable Larry Miller, page 3 W-534)
original jurisdiction in much matters. Article 1906, Sec. 4,
V.C.S.
If the commissioners court, acting in the interest of the
general public, and not simply as anenforcer of a private right,
determines that a road is a public road, then in its exercise of
general control over such road, it has the power, and it is duty
bound, to order the removal of,an obstruction therefrom..,If the
court is correct in its initial determination its or,dermay be
enforced by appropriate civil or 'criminalactions.
If the commissioners court determines a public interest in
such road remaining open to public passage, and ,ia of the opinion
that such road is a public road, but doem not desire to act at
its peril, as the action above set out would require, it may seek
.the prior determination by the district court as to the public
nature of the road.
Your questions are approached upon the premise that no action
by the comuissionerm court is anticipated under the provisions of
Sec. 3 of Article 2351, authorizing the couunissionermcourt to
"discontinue" public roads , or under Article 6703, et meq, author-
ising the "laying out and opening of public roads”.
If the commissioners court is uncertain am to the status of
a road because an individual's private property rights are in-
volved; and such question is of personal rather than of public
interest, then it is a question with which the commissioners court
should not concern it elf, and a question which this office would
be forbidden toattempe to answer'by reason of Article 4399,
Vernon's Civil Statutes. The questiona are approached solely,.,on
the basis of the powers of the conaissioners,court without regard
to the property rights of the landowners 'involved.
It is the opinion of this office that the answer to your first
question is #at the commissioners court has the power to make an
administrative tietermination,but im powerless to make a judicial
determination, as to whether a road is, or is not, a public road;
such administrative decision serving only as a foundation upon
which the comntimmionerscourt may base its action or inaction in
the matter.
It is the opinion of this office that the answet to your
second question is that the conuniaaionerscourt ham the power to
make an administrative determination, but is powerless to make a
judicial determination, as to whether a road has, or has not, been
abandoned under the terns of Article 6703a, much administrative
decision serving only as a foundation upon which the commissioners
court may base its action, or inaction, in the matter.
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Honorable Larry Miller, page 4 (N-534)
It is the opinion of this office that the answer to your third
question is that whether the commissioners court does, or does not,
have the power to order the removal of an obstruction from a road
is determined by whether the road is, or is not, in fact, a county
road: if it is a'county road the court has such power, if it is
not a county road the court ham no much power; any ,such administra-
tive determination by the commissioners court, either way, serves
only as a foundation upon which the coumissionerm court may base
its action, or inaction, in the mattes.
SUMMARY
The commismioners court may make an administrative
determination, but is powerless to make a judicial
determination as to whether a road is, or is not,
a county road, or whether a road ham, or has not,
been abandoned under Article 6703a, V.C.S., and whether
a road is, in fact, a county road determines whether
the commimaioners court has the power to order the
removal of an obstruction therefrom. Any adininistra-
, tive determinations am to such status by the cosunim-
sioners court serves only am a foundation upon which
the commissioners court may base any action or inaction
thereon.
Prepared by Harold G. Kennedy
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
George Xelton, Vice-Chairmen
Malcolm Quick
2. T. Portemcue
Jack Goodman
John Banks
MEADE F. GRIFFIN
Staff Leqal Assistant
L NOLA WHITE
:First,Assistant
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