Untitled Texas Attorney General Opinion

Honorable C. J. Eden Opinion No. WW-1209 County Attorney Stephens County Re: Interpretation of Article Breckenridge, Texas 6711, Vernon's civil Statutes. Dear Mr. Eden: You have requested that this office render an opinion giving an interpretation of Article 6711, Vernon's Civil Stat- utes, and more specifically sub paragraph 1 of this statute. Your request reads in part as follows: "I am interested in whether or not there has been any court action testing the constitu- tionality of the statute, and furthermore, as to the position of the Commissioners Court in respect to their obligation to comply with a formal re- quest made by an Individual property owner. If you can shed any light on either of these two questions, it will be greatly appreciated." Article 6711, Vernon's Civil Statutes, to which you refer, reads in part as follows: "Any lines between different persons or owners of lands, any section line, or any practic- able route, practicable route as used herein, shall mean a route which will not unduly incon- venience the owners or persons occupying the land through which such route shall be declared, that the Commissioners Court may agree on In order to avoid hills, mountains, or streams through any and all enclosures, shall be declared a public highway on the following conditions: "1. One or more freeholders, or owners of lands, persons, firms, or corporations, into whose lands there is now no public road or public means of access, who desires an access road con- necting his said land with the county public road system, may make a sworn application to the Com- Honorable C. J. Eden, Page 2 (ww-1209) missioners Court for an order establishing such road, designating the lines sought to be opened, and the names and residences of the person or persons affected by such proposed access road, and stating the facts which show a necessity therefor. II . . . “3. At a regular term of the court, after due service of such notice, the court may hear evidence as to the truth of such applicatjon. and if It appears that the said aoolicants have no means of access to their lands and premises, it may issue an order declaring the lines designated in the applica- tion, . , , to be a public highway, . . .'I (Emphasis supplied) A clear statement of the purpose and Intent of the Legislature In this entire matter can be found in Section 2 of the 1953 amendatory act. Acts, 1953, 53rd Leg., P. 1054, ch. 438, sec. 3, which provides: "It is the purpose of this Act to make accessible to the public, properties belonging to such private individuals as have been de- prived, or may be deprived of any means of ac- cess to their said properties from the county public road system, and which properties are not now accessible to the general public, by establish- ing such roads over the most economical and con- venient route to be determined as hereinabove set out. " In regard to the portion of your Inquiry regarding the constitutionalitv of this statute. NOU are referred to the case of Phillips v. Stockton, 270 S.W:2d 266 (Civ.App. 1954, reversed on other grounds, 275 S.W.2d 464) in which the court pointed out that the constitutionality of this statute author- izing the creation of public highways across another's land to give landowners living within enclosures access to highways, rests upon the obligation of the sovereignty to afford to each member of the community a reasonable means of enjoying the privileges and discharging the duties of a citizen. We have found no other cases in which the constitutionality of this statute was raised or discussed. Honorable C. J. Eden, page 3 (WW-1209) Before proceeding further in this Inquiry, we should like to direct your attention specifically to the statement of purpose set out in Section 2 of the 1953 amendatory act, supra. Therein the Legislature spells out its intention (i.e. to make that property belonging to private individuals who are without access to the county publfc road system accessible to the pub- lic through the opening of a public road over the most conven- ient and economical route.) Any action of the Commissioners Court relative to this matter nust necessarily be taken with a view to this overall purpose. It must give effect to the purpose and intent of the Legislature. Morris v. Calvert, 329 S.W.2d 117 (Civ.App. 1959, error ref. n.r.e.) Further, In regard to your inquiry as to the position of the Commissioners Court in respect to Its obligation to comply with a formal request made by an individual property owner, we held in Attorney General's Opinion ~~-872 (1960) that insofar as the order which the Court can issue under this stat- ute, the issuance of such was within the discretion of the Commissioners Court. This opinion reads In part as follows: "It would be inaccurate to describe the statute, in its entirety, as being either 'man- datory' or tdirectory.' The statute lists cer- tain procedures which must be followed, and directs some actions of the county commission- ers. However, the order which may be issued by the Commissioners Court after hearing the evi- dence is subject to the discretion of the Court." The Court, in the case of Phillips v. Naumann, 154 Tex. 153, 275 S.W.2d 464 (1955), directed its attention to this ques- tion and held In part that in order for the Commissioners Court to have the authority to order the opening of the public road under the Article 'under review, the petition must allege "the facts which show a necessity for such road', and that the facts alleged must be established by the evidence, and that the Com- missioners Court "deems the road of sufficient public lmpor- tance." However, prior to 1953, the issuance of court orders under this Article was specifically dependent in addition on a finding of the Commissioners Court that said road was of "sufficient public importance." Phillips v. Naumann, supra, was decided on the basis of the wording of the Article prior to 1953. Relative to the issuance of court orders, the statute was amended in 1953, Acts, 1953, 53rd Leg., p. 1054, ch. 438, sec. 3, to omit the following: "if the Commissioners Court Honorable C. J. Eden, page 4 (WW-1209) deems said road of sufficient public importance", and In lieu thereof, the Legislature Inserted provisions relating to the hearing of evidence and to the Issuance of orders where land- owners have no means of access to their lands. Thus, the Commissioners Court is no longer required to deem the road "of sufficient public Importance"; but only has to find that a necessity for such road exists within the meaning of the statute. To this extent, Phillips v. Naumann, supra, is still a valid statement of the law. Thus, we are of the opinion that the obligation of the Commissioners Court to comply with the formal request made by an individual property owner is discretionary, and should be in accord with the purpose of the act as set out above. However, the facts showing a necessity for such road must not only be alleged, but must be established by the evidence within the terms of the statute before an appropriate order may be issued declaring the lines designated in the application to be a public highway. SUMMARY The obligation of the Commissioners Court to comply with a formal request of an individual property owner under Article 6711, Vernon's Civil Statutes, Is discretionary and dependent on whether the facts showing a necessity for such a road are alleged and established by the evidence within the terms of the statute. Yours very truly, WILL WILSON EBS:dhs:zt APPROVED: OPINION COMMITTEE W. V. Geppert, Chairman Marvin Thomas Robert Lewis Morgan Nesbitt Marvin Sentelle REVIEWED FOR THE ATTORNEY GENERAL BY: Houghton Brownlee, Jr.