EATTOKNEY GENERA& .
OFTEXAS
July 9, 1951
Hon. Jim-W. Weatherby Opinion No. V-1203
District Attorney
38th Judicial District Re: 'Authority of the com-
Kerrvi$le, Texas missioners1 court to
open a neighborhood
road under the sub-
Dear .Sir: mitted facts.
'Reference ,is made to your request for our opln-
d.on, which reads in part as Soll.ows:
"The Commissioners' Court of Randera
County, Texas) have had presented to them a
petition by ten freeholders, for an order
to establish a neighborhood road through
two tracts'oS.land separately owned, lead-
ing from a public highway through the land
of others to land owned.by another party,
under Article 6711, R.C.S. of Texas., This
road Is a cul-de-sac, and will .primarilg
benefit the owner of the land where the
road terminates. This tract of land was
purchase& by the present owner and it does
not have a road leading to it. The pre,vious
owner used a road through enclosed land of
another but the.road was,never established
as a road by the commissioners court. When
the present owner of the'land purchased it,
that Is, the land through which the road
runs, he would not allow the owner of the
land away from the road to use the road to
get to~hie. land. . . .
"Does the Commissioners Court of Ran- ,.
dera County, Texas have the right to open
this road under Article 6711, R.C.S.~ 09 ',
. Texlis? ~\_
"Does the fact that the road.wou3.d be
a cul-de-sacand primarily for the benefit
of'the owiier of the land where the same
terminates, affect their jurisdiction?"
Hon. Jim W. Weatherby, page 2 (V-1203)
Under additional facts submitted by the County
Attorney of Bandera County, it does not appear that any
of the petiti’oners reside within an inclosure and that
some of ,the petitioners reside in the town of Medina and
one in San, Antonlo,‘while others reside in the vicinity
of the proposed road. Therefore, we shall confine our
opinion to that part of Article 6711, V.C.S., which re-
lates to a petition by ten freeholders.
Article 6711, V.C,.S., provides in part:
‘Any lines between different persons or
owners of lands, any section line, or any
practicable route, that the Commissioners ’
Court may agree upon, in order to avoid
hills, mountains or streams through any
and all inclosures, may be declared public
highways upon the following conditions:
“1 . Ten freeholders, or one or more
persons living within an inclosure, who de-
sires a nearer, better or more practicable
road to their church, county seat, mill,
timber, or water, may make sworn application
to the Commissioners’ Court for an order es-
tablishing such road, designating the lines
sought $0 be opened and the names and resi-
dences of the persons or owners to be af-
fected by such proposed road, and stating
the facts which show a necessity for such
road."
The above statute was originally Section 33 of
Chapter 64, Acts 15th Isg., 1.876, p. 63. Article 670
V.C .S. was also a part of the same act (Sees. 6 and 7
and provides as So$lows:
*The commissioners court shall in no
instance grant an order on an application
for any new’road, or to discontinue an
original one, or to alter or change the
course of a public. road, unless the appli-
cants have given at least twenty days no-
tice by written advertisement of their
Intended application, posted up at the
court house door of the county and at two
other public places in the vicinity of the ’
route of such road. All such applications
.shall be, by petition to the commissioners
. L
Hon. Jim w. Weatherby, page 3 (V-1203) .
court, 8lgned by at least eight Sreeholderq
in the precinct In which such road Is de-
sired to bo made or discontinued, spealfy-
lng in such petition the beginning and
termination of such road, provided an ap-
plication to alter or change a road need
not be signed by more than one freeholder of
the preoinct .*
Therefore, since both Articles 5705 an4 6711
were originally a part of the same act, they should be
construed together. When this is done, we believe that
the ten freeholders referred to in Article 5711 means
freeholders In the road precinct in whi,ch the road is
to be established just as it does in Article 6705. Bow-
ever, in Attorney Generalts Opinion V-443 (1947), It is
stated:
“It is ok opinion that, Insofar as any
residence, requirement is concerned, ‘free-
holders in thi ‘precinct’ and ‘freeholders of
the preainct ’must be given the same meaning.
We have cpnolu4ed that such terms, within
themselves, do not imply that a’freeholder
must be a reeibent of the precinct. Under
the provisionr of Article 6705, non-resident
freeholders, having a See interest in real
estate &a the road preoinct, ‘are qualified
petitioners ‘.” ‘-
Under‘the ,facts submitted, It is not stated
whether the ten petitioners are freeholders in the road
precinct where, the proposed road is to be located. IS
theg~are, the commissioners1 court would have jurisdic-
tion In the matter, and should the commissioners’ court
deter&Lne that such a road would provide “a nearer, bet-
tez- or more practicable road to their church, county seat,
mill, timber or ,water ,‘I and that ,a necessity exists for
the’ road, it would be authorized to estab!lish such a road
under fhe prov’isions of Article ,571l.
We believe your second is answered by
Attorney General’s, Opinion V-675 and the fact
that the roa,d would be a d primarily for the
benefit of the owner of. the land where thr same terminates
would not affect the commissioners’ Court’s jurisdiction.
We are encloslnp~ a copy ,,oS thls oplnlion.
. .
,
Hon. Jim W. Weatherby, page 4 (V-1203)
i
SUMMARY
The oomrmiss,loners~~~cou~t,,has,authqrity
to establish a neighborhood road upon,the
petitlonof'ten Sreeholders~ of the precinct
in which the road Is to bei located iS,,lt
finds that such road would provide "a near-
er; better or more practicable. road to church,.
county seat, mill, timber, or water" and that
a necesszty e+s i"or.the road. Art. 6711, lx
V.C.S. ' ,(
APPROVED: " Your6 very truly,
J. C. Davis, Jr. PRICE DAKC& ;
County ASSairs'Division : Attorney GeneraS.
Jes.se. P. &ton, Jr.
Reviewing Assistant
Charles D. Mathews
First Assistant
'BA?mw :