Ms. Elizabeth C. Jandt Opln.Ion No. M-339
County Attorney
Re: Whether a county can sell
property acquired for county
road purposes but never used
without the advertisement
and sale at public auction
as directed by Article 1577,
Dear Ms. Jandt: V.C.S.
In your recent request for opinion, you set forth the following
facts:
"In about 1963 the County agreed to build a county
road. The road was to be an extension of a county
road already in existence. There were three pro-
perty owners involved in the acquiring of the
necessary right-of-way and each agreed to give the
property to the County. However, only property
owner number two actually signed a deed conveying
to the County a 40 foot right-ofiway along the
side of his tract of land. Property owners number
one and three never gave a deed to their part of
the right of way.
"The County has now decided not to build said county
road and would like to sell said 40 foot strip back
to the original grantee. Said 40 foot strip 1s not
connected to the existing county road; the tract
owned by property owner number one Is between the
existing county road and the 40 foot strip in ques-
tion. Said strip does not have any road improvements
placed on It by the County and it has never been
used by the county or anyone else for road purposes.
However, the County of Guadalupe did acquire said
strip for the purpose of extending an existing
county road."
In connection with these facts, you pose this question:
"Can the County of Guadalupe appoint a Special
Commissioner by order entered in the minutes of
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Ms. Elizabeth C. Jandt, Page 2 (M-339)
the Commlssloners Court and direct that he sell
said land directly to the original grantee at
private sale or must the Special Commlssloner
advertise said40 foot strip and sell it at
public auction. Does this 40 foot strip con'-
stltute abandoned right-of-way property as
mentioned In Article 1577, V.A.C.S., having
never been used by the County for road purposes.n
The property to which you refer was acquired to build a county
road. It was conveyed to the county for this purpose and the lnten-
tlon of the Commlssloners was to establish a county road thereon.
It, therefore, constitutes county "right-of-way property". Abandon-
ment Is primarily a question of Intent. To constitute "abandoned
right-of-way property" for the purposes of Article 1577, Vernon's
Civil Statutes, the better practice would be for the Commlssloners
Court to adopt a resolution duly entered on the minutes of the Com-
missioners Court declaring such right-of-way property Is abandoned.
At the 60th Session ox'Lhe Texas Legislature, two amendments to
Article 1577 were enacted. These were Amendment to Article 1577
by Acts 1967, 60th Leg., p. 114, Ch. 48, Sec. 1 and Amendment to
Article 1577 by Acts 1967, 60th kg., p. 2071, Ch. 772, Sec. 1.
You will note that the two amendments contain only minor differences.
It Is well established that when a session of the Legislature enacts
more than one amendment to a statute the two amendments will be
construed together and if at all possible, both statutes will be
given effect as one expression of the legislative will. Southern
Pacific v. Sorey 104 Tex. 476, 140 S.W. 334 (1911); Cole v. State,
106 Tex. 472, 176 S.W. 1036 (1914); Cain v. State, 20 Tex. 355,
(1857); 53 Tex. Jur. 2nd 155, STATUTES, Sec. 105. The rule 1s
further to the effect that where portions of enactments are In
Irreconcilable conflict, those portions not In conflict are to be
given effect. As t6 the portions In conflict, the latest legislative
expression prevails. Whlttenburg v. Craven, 258 S.W. 52 (Tex.
Comm. App., 1932).
Those portions of the two amendments to Article 1577 applicable
to the question you pose are identical. In essence such amendments
provide for the sale of county owned land and establish priorities
as to certain property. After providing for the sale of county
land by public auction after the advertisement thereof, both amend-
ments contain the following language:
"Provided, however, that where abandoned rlght-
of-way property 1s no longer needed for highway
or road purposes and the county decides to sell
said right-of-way property, It shall be sold with
the following priorities: (1) to abutting or ad-
joining landowners; (2) to the original grantors,
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Ms. Elizabeth C. Jandt, Page 3 (M-339)
his heirs or assigns of the original tract
from whence said right-of-way was conveyed; or
(3) at public auction as provided above;"
Article 1577, as amended, establishes definite priorities that
are to be followed In the sale by a county of abandoned rlght-of-
way property. Such property should be first offered at private
sale to abutting or adjoining landowners. Should no sale be
effected to adjoining and abutting owners, such property should
then be offered to the original grantor, his heirs or assigns of
the original tract from whence said right-of-way was conveyed. If
the property 1s not sold to any of the persons having the first two
priorities, the property should be advertised and sold at public
auction as provided by Article 1577, as amended.
SUMMARY
Real property acquired by a county for the purpose
of constructing a road constitutes right-of-way
property whether a road 1s ever constructed thereon
or not. Whether such property has been abandoned
1s a question of Intent. To constitute "abandoned
right-of-way property" for the purposes of Article
1577, V.C.S., the better practice would be for the
Commlssloners Court to pass a resolution entered on
the court's minutes declaring such property to be
abandoned. The two amendments to Article 1577 en-
acted by the 60th Legislature contain identical
language relative to the manner In which county real
property 1s to be conveyed and prlorltles that are
to be followed regarding certain property, and there-
fore such language is effective. Where property to
be sold by a county 1s abandoned right-of-way property,
the priorities established In Article 1577 must be
followed and such property should first be offered at
private sale to the adjoining or abutting owners, and
secondly to the grantor, his heirs or assigns of the
tract of land from whence such right-of-way property
was orlglnally conveyed. If such property 1s not
sold at private sale to those persons having the
first two priorities, such property should be adver-
tised and sold at public auction as provided by
Article 1577, as amended.
/7
y+.$ truly yours,
‘.
Ms. Elizabeth C. Jandt, Page 4 (M-339)
Prepared by Louis 0. Neumann
Assistant Attorney General
APPROVED: I
OPINION COMMITTEE
Kerns Taylor, Chairman
George Kelton, Vice-Chairman
Scott Garrison
Rex H. White, Jr.
Bob Iattlmore
Malcolm Smith
W. V. Geppert
Staff Legal Assistant
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