Honorable CharlesW. Chapman Opinion No. 311-842

Criminal DistrictAttorney Courthouse,Room 208 Re: Retroactivity of the SanMarcos, Texas 78666 1985 amendment to article 6812h,V.T.C.S., relating to the acquisition of a public interest in private roads in certain counties (RQ-1180)

DearMr. Chapman:

You ask whether a 1985 legislative amendment to article 6812h, V.T.C.S., gives the statute retroactive effect. We answeryour question in the negative.

you informus that inApril of 1987 a county commissioner of Hays County directed a work crew to remove a cattle guard and part of a fence in the area of a road known as McCarty Lane but also designated as County Road 233. After this work was completed, an attorney representing owners of land through which the road allegedly
runs appearedbefore the commissionerscourt and claimed the roadwas a private road and the fence stood on private property. He also requestedthat the county return the cattle guard and fence to their original locations. The commissionerwho ordered their removal indicated that the countymaintained the roadprior to the effective date of article 681211,

andhas maintained it continuously since.

YOU suggest that the county acquired a public interest in the road under the doctrine of implieddedication prior to 1981. Article 6812h,you add, eliminated the doctrine of implied dedication as of its effective date,August 31, 1981. You do not ask, and we do not consider,whether in fact the county acquired a public interest in the road. The resolution of this issue requires factualdeterminations which this office cannot make in an Attorney General Opinion. &S Las Veaas Pecan & Cattle Co.. I c v. Z ala Countv 682 S.W.2d 254, (Tex.1984) (ElimentsET implieddedication). 256

p.4064Honorable CharlesW. Chapman - Page 2 (JM-842)

Article 6812h affected the acquisition of a public interest in private roads in countieswith a population of 50,000 or less according to the preceding federal census. your brief cites two Texas Supreme Court cases inwhich it
was declared that article 681211 "containsno provision which would make it retroactive and, without such a provision, the statute can be given only prospective app1ication.w mdner v Hj& 691 S.W.2d 590, 592 (Tex. 1985);Lgs aas Pecan County, &at 256. * 8 Ckttle Co.. I nc. v. Zavala The statute was amended in 1985, the amendments taking effect after the Linder and Las Veaas decisionswere rendered. Acts 1985, 69th Leg., ch. 509, §3, at 2099 (effectiveSept. 1, 1985). Sections 2 and 3 of article 6812hwere amended as follows (language added by the amendment is underlined, deleted language in brackets):

Section 2. PUBLIC INTEREST. (a) A county

may not establish, acquire, or receive any public interest in a private road except under the followingcircumstances: (1) purchase; (2)condemnation; (3)dedication: or (4)anal iudwent f adversepossession
a court of comnetent iurisdiction. b

(b) Once a public interest has been established in accordance with Subsection (a)of this section, the interestmust be recorded in the records of the commissioners court of the county inwhich the road is locatedbv resolution which declares the circumstance bv which such interest was accuired and the effectivedate thereof.
I

. (cl The a not assert that a nublic interest has been established in a nrivate road bv anv of the fourmeth ds orovided in Subsection ia) of this sectyon until the interest has been recorded in thenmanner orovided in Subsection (b) of this section and written notice has been aiven to the ownerfs) of the road either in oerson or bv reaistered m il to the address of the nerson as shown on the most recent ad valorem tax roll for the countv.

Section 3. CONTEST. Any person asserting any right, title, or interest in a private

p.4065Honorable CharlesW. Chapman - Page 3 (J&842)

C

-

Ih road in which a public interest has been asserted in accordance with Section 2 of thisAct may file suit in a district court in the county in which the road is located within two years after the later of h followinq: (1) the resolution [notat&; in the records of the commissioners court of the public interest in the road: and (2)the written notice to the owner~fs) of the d

roa

.
You contend the 1985 amendment to article 681211does not suggest that the statute should now be given retroactive application. We agree.
Retroactive statutesare generallyviewed with disfavor. Rutchinasv. Slw 174 S.W.2d 487 (Tex. 1943). Article I, section 16, of th; Texas Constitutionprohibits the enactment of retroactive laws:however, the provision has been held only to invalidate laws which destroy or impairvested rights. See Merchants Fast Motor Lines,

ailroad Coqy&%aionof Texas 573 S.W.2d 502 (Tex. In 19%)v. R :Deacon v. Citv of Eules '405S.W 2d 1966). See also Gov't Code ii11.022 (a 59 (Tex. statute is presumed to be prospective in operation unless expressly made retrospective). There is a general presumption that
a statute is intended to operate prospectively and not retroactively, even when there is no constitutional impedimentagainst retroactive application. see Coastal IndustrialWater Authoritv v. Trinitv Portland Cement Division.General Portland Cement Co., 563 S.W.Zd 916 ITex. 1978). Anv doubt is to be resolved in favor prospective operation. &S Ex carteAbell, of a 613 S.W.2d 255 (Tex.1981). It ispresumed furtherthat an amendment to
a statute is to operate prospectivelyonly. Amnlifone Core.v. Cameron Countv, 577 S.W.2d 567 (Tex. Civ.App. - Corpus Christi 1979,no writ). These presumptionsmay be
overcome if it appearsplainly or by fair implication from the language used that the legislature intended the statute or amendmentto have retroactiveapplication. See Ex carte Ab 11

. bath, 536 g.W:2?%' Citv of Corpus Christi v..Hersch-

-. ITex.Civ. ADD. - COrDUS Christi 1976,writ ref'd n.r.e:). Moreover-;-the legislaturemay enact a law that by its terms is retrospective in operation, provided no impairment of vested rights results. Hocklev Countv Seed & Delintina. Inc. v. Southwestern InvestmentCo., 476 S.W.2d 38 (Tex.Civ.App.

-Amarillo 1971,writ ref'd n.r.e.).

p.4066Honorable CharlesW. Chapman - Page 4 (JM-842)

As you observe in your brief to this office, the language added to article 6812h in 1985 impartedno retrospective effect upon the statute. The legislativehistory of the 1985 enactment reveals that a provision was added in the Senatemaking the amendment to section 2(a) retroactive toAugust 31, 1981. S.J. of Tex., 69th Leg., R.S., 569 (1985) (committeeamendment to section 3 of S.B. No. 966). The retroactivityprovisionwas deleted in the House of Representatives, however. H.J. of Tex., 69th Leg., R.S., 3010 (1985) (substitute for section 3 offered by Rep. Willy). The Senate concurred in the House amendments to S.B. NO. 966 by viva vote vote. S.J. of Tex., 69th -cl., R.S., 2176 (1985). In 1986, the San Antonio Court of Appeals, relying on the m Veaa8 and Lindner cases, concluded that article 681211is given prospective application only and does not operate to divest a county of the public interest it acquired in a private road prior to the effective date of the-statute. Uvalde Countv-v. Barrier, 710 S.W.2d 740, 747 (Tex.App. - San Antonio 1986, no writ).
Accordingly,we conclude that the 1985 legislative amendment to article 6812h,V.T.'C.S., does not require the retroactive applicationof the statute to countieswhich acquired a public interest in a private road prior to the --. effectivedate of article 6812h.

SUMMARY

The 1985 legislativeamendment to article 6812h,V.T.C.S., Acts 1985, 69th Leg., ch. 509, at 2099, does not require the retroactive application of the statute to counties which acquired a public interest in a private road prior to the effectivedate of article 6812h.

Very t‘ruly

yo r , 

# J k

JIWTATTOX Attorney General of Texas

MARYEELLER FirstAssistantAttorney General

LOUMCCREARY ExecutiveAssistant Attorney General

p.4067Honorable CharlesW. Chapman - Page 5 (J&842)

JUDGE ZOLLIE STEAKLEY SpecialAssistantAttorney General

RICK GILPIN Chairman, Opinion Committee
Preparedby Rick Gilpin AssistantAttorney General

p.4068