Untitled Texas Attorney General Opinion

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 :