ATTORNEY GENERAL OF TEXAS 

GREG ABBOTT 

The Honorable Joshua Hamby 

Howard County Attorney 

Post Office Box 2096 

Big Spring, Texas 79721-2096 

Dear Mr. Hamby: 

July 22, 2013 

Opinion No. GA-1013 

Re: Whether a commissioners court may require a 

permit and charge a fee for installing an access 

point to a county road (RQ-111 0-GA) 

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 -ofway 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