Honorable Charles W. Chapman Opinion No. 311-842 

Criminal District Attorney 

Courthouse, Room 208 Re: Retroactivity of the 

San Marcos, 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) 

Dear Mr. Chapman: 

You ask whether a 1985 legislative amendment to 

article 6812h, V.T.C.S., gives the statute retroactive 

effect. We answer your question in the negative. 

you inform us that in April 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 appeared before the commissioners court and claimed 

the road was a private road and the fence stood on private 

property. He also requested that the county return the 

cattle guard and fence to their original locations. The 

commissioner who ordered their removal indicated that the 

county maintained the road prior to the effective date of 

article 681211, and has maintained it continuously since. 

YOU suggest that the county acquired a public 

interest in the road under the doctrine of implied dedication 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 factual determinations 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) (Eliments ET implied dedication). 

256 

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

Article 6812h affected the acquisition of a public 

interest in private roads in counties with a population of 

50,000 or less according to the preceding federal census. 

your brief cites two Texas Supreme Court cases in which it 

was declared that article 681211 "contains no 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 decisions were rendered. Acts 1985, 69th Leg., ch. 

509, §3, at 2099 (effective Sept. 1, 1985). Sections 2 

and 3 of article 6812h were 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 following circumstances: (1) purchase; (2) condemnation; (3) dedication: or 

(4) anal iudwent f adverse possession 

a court of comnetent iurisdiction. 

b 

(b) Once a public interest has been 

established in accordance with Subsection 

(a) of this section, the interest must be 

recorded in the records of the commissioners 

court of the county in which the road is 

located bv resolution which declares the 

circumstance bv which such interest was 

accuired and the effective date thereof. 

I . 

(cl The a not 

assert that a nublic interest has been 

established in a nrivate road bv anv of the 

four meth ds orovided in Subsection ia) of 

this sectyon until the interest has been 

recorded in then manner 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 

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Honorable Charles W. Chapman - Page 3 (J&842) 

C 

- 

Ih 

road in which a public interest has been 

asserted in accordance with Section 2 of 

this Act 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 ro a d . 

You contend the 1985 amendment to article 681211 does not 

suggest that the statute should now be given retroactive 

application. We agree. 

Retroactive statutes are generally viewed with disfavor. Rutchinas v. Slw 174 S.W.2d 487 (Tex. 1943). 

Article I, section 16, of th; Texas Constitution prohibits 

the enactment of retroactive laws: however, the provision 

has been held only to invalidate laws which destroy or 

impair vested rights. See Merchants Fast Motor Lines, 

In ailroad Coqy&%aion of Texas 573 S.W.2d 502 (Tex. 

19%) 

v. R 

: Deacon v. Citv of Eules '405 S.W 2d 

1966). See al so 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 

impediment against retroactive application. see Coastal 

Industrial Water 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 carte Abell, 

of a 

613 S.W.2d 255 

(Tex. 1981). It is presumed further that an amendment to 

a statute is to operate prospectively only. Amnlifone 

Core. v. Cameron Countv, 577 S.W.2d 567 (Tex. Civ. App. - 

Corpus Christi 1979, no writ). These presumptions may be 

overcome if it appears plainly or by fair implication from 

the language used that the legislature intended the 

statute or amendment to have retroactive application. 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 legislature may 

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 Investment Co., 476 S.W.2d 38 (Tex. Civ. App. 

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

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

As you observe in your brief to this office, the 

language added to article 6812h in 1985 imparted no retrospective effect upon the statute. The legislative history 

of the 1985 enactment reveals that a provision was added 

in the Senate making the amendment to section 2(a) retroactive to August 31, 1981. S.J. of Tex., 69th Leg., R.S., 

569 (1985) (committee amendment to section 3 of S.B. No. 

966). The retroactivity provision was 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 681211 is 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 application of the statute to counties which 

acquired a public interest in a private road prior to the --. 

effective date of article 6812h. 

SUMMARY 

The 1985 legislative amendment 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 effective date of article 6812h. 

Very t‘ruly yo r , J k 

JIWTATTOX 

Attorney General of Texas 

MARYEELLER 

First Assistant Attorney General 

LOU MCCREARY 

Executive Assistant Attorney General 

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Honorable Charles W. Chapman - Page 5 (J&842) 

JUDGE ZOLLIE STEAKLEY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Rick Gilpin 

Assistant Attorney General 

p. 4068