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August 2, 1954
Hon. Austin F. Anderson Opinion No. S-137
Criminal District Attorney
Bexar County Re: Purchase of right of
San Antonio 5, Texas way by county.
Dear Mr. Anderson:
You have requested an opinion on the following
questi.on:
'Whether Bexar County can legally purchase out
of Road and Bridge Funds 1.24 acres of land from
Mrs. Mantlna E. Rodriquez for a road to be known as
Rodriquez Road, the purpose of which,,isto serve as
an access road to a new County Park.
According to the facts submitted with your request,
Bexar County has purchased 1.24 acres of .land from,Mrs.
Martina E. Rodrjquez constituting a 5O-foot right of way
approximately 1,032 feet in length from an intersection of
U. S. Highway 90 West to a County Park located north of such
'ntersection. The Commissioners' Court has designated the
proposed road as a publ-i~c
road and cansequcntly, part of the
county road ~systern.Disi,,ute
has arisen as to whether such
road constitutes, as a matter of law, a public road.
In Bradford v. Moseley, 223 S.W. l',:l(Tex- Corn.App.
1920) the court in determining what constituted a Fublic
road stated:
"What is a public road is in a measure dependent
upon the facts of each particular case, but the
character of a road does not depend on its length, nor
upon the place to which it leads, nor is its
character determined by the nu,mberof people who
actuallv travel uoon it. Decker v. Menard (Civ. ALP.)
2~1S.W. 728; Elliott on Roads 88 1 to 7. A‘road may
be established which is la cul-de-sac. Id. A road
op'ento the public is a 'publicroad, though one person
may be most,benefited by it. Galveston, etc. v.
Bnudat, 18 Tex. Civ. ALP. 595, ,+', S.W. 939. It -i-sa
h,,f.:hway
1.i’ there :i~s
a general right 'to use it for
travel, and if it i.so;en to the use of all the people.
Elliott on Roads, 85 l-3; Sum'r etc. v. Interurban,
etc., 141 Tenn. 493, 213 S.W.TlS.
. -
Hon.,Austin F. Anderson, page 2 (s-137)
II
* . . It is obvious from the statement of the
case that the whole controversy resolves itself into
one question: Did the Commissioners' Court of Palo
Pinto Oounty abuse the discretion vested in it by
law in opening the road?
"This is true because it is a part of the state-
ment of facts that evidence of all the stat,utory
requirements precedent to the opening of the road
was offered, and that all were in due and legal
form, and the trial court found that the commission-
ers' court determined that a necessity for the road
existed, and that due notice was given. Such finding
was as binding as would have~been the verdict of a
jury. 'I
Likewise, it is stated in Rindge Company v. County
of Los Angeles, 262 U. S. 700, 76 L.Ed. 1186, 43 S. Ct. 689
71923):
If
0 . . It is not essential that the entire com-
munity nor even any considerable portion, should
directly enjoy or participate in an improvement in
order to constitute a public use.”
In Attorney General's Opinion V-1169 (1951) this
office held that farm to market and lateral roads constituted
any public road of the county leading either directly or
indirectly from the farms to some market exclusive of design
nated State highways, citing Hastings v. Pfeiffer, 184 Ark.
952, 43 S.W.2d 1073 (1931).
In Attorney General's Opinion V-675 (1948) it was
held that whether a public road is a necessity is a fact
question to be ascertained by the Commissioners' Court.
Since the road in question has been designated by
the Commissioners' Court of Bexar County to be a county
road, and the road is open to the public, and is in fact
adapted as a way of convenience for the public to travel to
and from the County Park, it is our opinion that such road
would constitute a county road and part of the county road
system. Therefore, the purchase of this right of way may be
paid for out of the Road and Bridge Fund of the County.
Carroll v. Williams, 109 Tex, 155 202 S.W. 504 (1918).
Hon. Austin F. Anderson, Page 3 (S-137)
SUMMARY
A county has the authority to purchase, out of
the Road and Bridge Fund of the County, land
for a right of way to be used as a public road
of the county leading from a County Park to an
intersection with a designated State highway.
Yours very truly,
APPROVED: JOHN BEN SHEPPERD
Attorney General
J. C. Davis, Jr.
County Affairs Division
W. V. Geppert
Reviewer
Assistant
Enos F. Jones
Reviewer
Robert S. Trotti
First Assistant
John Ben Shepperd
Attorney General
JR:cs