Untitled Texas Attorney General Opinion

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

July 22, 2013

The Honorable Joshua Hamby Opinion No. GA-1013
Howard County Attorney
Post Office Box 2096 Re: Whether a commissioners court may require a
Big Spring, Texas 79721-2096 permit and charge a fee for installing an access
point to a county road (RQ-111 0-GA)

Dear Mr. Hamby:

You ask whether the Howard County Commissioners Court can "require individuals and
entities in the oil and gas industry to obtain a permit for constructing or installing an access to a
county road to offset the damage caused to the county road." 1 You explain that oil field activity
in Howard County is creating excess traffic that is "causing severe damage to our roads and
increasing the costs of the maintenance and repair," particularly at "access points" where private
roads intersect county roads. Request Letter at 1. More specifically, briefing we have received
explains that "[ c]onnecting an access point to a county road can affect roadway drainage, erosion
and sedimentation in the right-of-way, vehicular and pedestrian traffic safety, and the structural
integrity of the road and its future maintenance needs." 2 To address these issues, the Howard
County commissioners want to require a permit and charge a fee for each new access point that
is constructed specifically for purposes of oil and gas operations. Request Letter at 1-2. Such
measures, you explain, would compensate the county for increased damage to county roads
attributable to oil and gas operations and allow the county to implement certain specifications for
the construction of access points. !d. at 1.

A commissioners court may exercise only those powers expressly granted by either the
Texas Constitution or the Legislature together with such implied powers as are necessary to
accomplish the powers expressly conferred. City of San Antonio v. City of Boerne, 111 S.W.3d

1
Letter from Honorable Joshua Hamby, Howard Cnty. Att'y, to Honorable Greg Abbott, Tex. Att'y Gen.
at 1 (Feb. 13, 20 13), http://texasattomeygeneral.gov/opin ("Request Letter").
2
Brieffrom Ms. Julie Joe, Assist. Travis Cnty. Att'y at 3 (Apr. 16, 2013) (footnote omitted) (on file with
the Op. Corum.).
The Honorable Joshua Hamby - Page 2 (GA-1013)

22, 28 (Tex. 2003). The Legislature has granted commissioners courts broad authority over
county roads with the enactment of Transportation Code chapter 251. Section 251.003 grants a
commissioners court express authority to "make and enforce all necessary rules and orders for
the construction and maintenance of public roads." TEX. TRANSP. CODE ANN. § 251.003(a)(l)
(West 1999). Section 251.016 authorizes commissioners courts to "exercise general control over
all roads, highways, and bridges in the county." !d. § 251.016 (West Supp. 2012). "By granting
commissioners courts general control over the roads, the Legislature imposed on them a duty to
make the roadways safe for public travel." City of San Antonio, Ill S.W.3d at 31-32
(construing a statutory predecessor to Transportation Code section 251.0 16).

In addressing a commissioners court's authority over county roads, we also note that a
road is not limited to the area traveled, but includes the whole width of the public right-of-way.
State v. NICO-WFJ, L.L.C., 384 S.W.3d 818, 821 (Tex. 2012) (considering a dedicated state
highway right-of-way). As a general rule, a landowner whose property abuts the right-of-way
boundary of a public highway "owns the fee to the center of the thoroughfare in question, subject
only to an easement existing in favor of the public to a right of passage." Camilla Twin Harbor
Volunteer Fire Dep't., Inc. v. Plemmons, 998 S.W.2d 413, 417 (Tex. App.-Beaumont 1999,
pet. denied). The easement confers upon its holder the right to use and control as much of the
right-of-way as reasonably necessary for road purposes. NICO-WFJ, L.L.C., 384 S.W.3d at 821.
Accordingly, the right-of-way may include "sufficient land, where reasonably available, for
drainage ditches, repairs, and the convenience of the traveling public." Allen v. Keeling, 613
S.W.2d 253, 254-55 (Tex. 1981) (considering a road established by prescription). Thus, the
construction of an access point outside the traveled road but within the county right-of-way
boundary occurs in an area over which the commissioners court has authority.

When a power or duty has been conferred on a commissioners court, "it has implied
authority to exercise a broad discretion to accomplish the purposes intended." Anderson v.
Wood, 152 S.W.2d 1084, 1085 (Tex. 1941). Therefore, if a commissioners court determines that
access points within the county right-of-way cause damage to county roads, and subsequently
concludes that requiring a permit for their construction is necessary to maintain county roads and
make them safe for public travel, sections 251.003 and 251.016 authorize the commissioners
court to order that such permits be required. See id.; see also Tex. Att'y Gen. Op. No. JM-1241
(1990) at 2 (concluding that a commissioners court may order the removal of trees in right-of-
way upon a "reasonable finding that [they] would interfere with right-of-way purposes").

Charging a fee is a separate action requiring separate authority. See Tex. Att'y Gen. Op.
No. GA-0544 (2007) at 4 ("A court ... will not imply authority to impose a fee.") (citing Moore
v. Sheppard, 192 S.W.2d 559, 561 (Tex. 1946)). Transportation Code section 251.017 grants a
commissioners court the authority to "set a reasonable fee for the county's issuance of a permit
authorized by [chapter 251] for which a fee is not specifically prescribed." TEX. TRANSP. CODE
ANN.§ 251.017 (West Supp. 2012). Because a commissioners court has the authority to require
access-point permits for construction within the county right-of-way under sections 251.003 and
251.016 of the Transportation Code, it may set a reasonable fee for such permits in accordance
with section 251.017. !d. Whether any particular fee is "reasonable" is a matter within the
discretion of the commissioners court, subject to judicial review. See Anderson, 152 S.W.2d at
The Honorable Joshua Hamby - Page 3 (GA-1013)

1085; Comm 'rs Ct. of Titus Cnty. v. Agan, 940 S.W.2d 77, 80 (Tex. 1997) (holding that a
commissioners court abuses its discretion by acting "illegally, unreasonably, or arbitrarily").
The permitting requirements and any associated fee may constitute an unconstitutional taking
without just compensation if they are not "roughly proportional" to the impact that the access
points will have on the county roads. See Town of Flower Mound v. Stafford Estates Ltd. P 'ship,
135 S.W.3d 620, 634 (Tex. 2004) (applying the standard that a condition of government approval
for the development of property must "bear[] an essential nexus to the substantial advancement
of some legitimate government interest and [be] roughly proportional to the projected impact of
the proposed development").

We next consider whether the commissioners court may require a permit and charge a fee
solely for new access points constructed for oil and gas purposes. Any distinction a
commissioners court makes between industries that utilize access points must be "rationally
related to a legitimate state interest" or risk violating the Equal Protection Clauses of both the
Texas and United States Constitutions. First Am. Title Ins. Co. v. Combs, 258 S.W.3d 627, 639
(Tex. 2008). Under this standard, targeting a specific industry for permitting requirements and
fees not applicable to other industries could run afoul of the Equal Protection Clauses unless
something about the targeted industry makes it uniquely deserving of special permitting
requirements. If the county were to impose special requirements on all access points that carry
heavy traffic-rather than on access points associated with a certain industry-its actions would
be less likely to run afoul of equal protection requirements. Whether a particular permitting
scheme satisfies that standard is a matter for the commissioners court to decide, subject to
judicial review.
The Honorable Joshua Hamby - Page 4 (GA-1013)

SUMMARY

Transportation Code sections 251.003 and 251.016
authorize a commissioners court to require permits for the
construction within the county right-of-way of access points to
county roads. Section 251.017 authorizes a commissioners court to
set a reasonable fee for such permits.

DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

Stephen L. Tatum, Jr.
Assistant Attorney General, Opinion Committee