ATTORNEY GENERAL OF TEXAS GREG ABBOTT

The HonorableJoshuaHamby Howard County Attorney Post Office Box 2096 Big Spring, Texas 79721-2096

DearMr. Hamby: July 22, 2013

OpinionNo. GA-1013
Re: Whether a commissioners court may require a permit and charge a fee for installing an access pointto acountyroad (RQ-1110-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 offsetthe damage caused to the county road." 1 You explainthat oil field activity in Howard County is creating excess traffic that is "causing severe damage to our roads and increasing the costs ofthe 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 pointto a countyroad can affectroadway drainage, erosion and sedimentation in the right-of-way, vehicular and pedestrian traffic safety, and the structural integrity ofthe 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 ofoil and gas operations. Request Letter at 1-2. Such measures, you explain, would compensate the county for increased damage to county roads attributableto oil and gas operations and allowthe county to implementcertain specifications for the construction ofaccess 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

1Letter 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").

2Brieffrom Ms. Julie Joe, Assist. Travis Cnty. Att'y at 3 (Apr. 16, 2013) (footnote omitted) (on file with the Op. Corum.).The HonorableJoshuaHamby

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22, 28 (Tex. 2003). The Legislature has granted commissioners courts broad authority over county roads with the enactment ofTransportation 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 ofpublic 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 inthe 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 ofSan Antonio, Ill S.W.3d at 31-32 (construing a statutorypredecessorto Transportation Code section251.016).
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 ofthe 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 ofapublichighway "ownsthe fee to the centerofthe thoroughfare in question, subject only to an easement existing in favor ofthe public to a right ofpassage." 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 ofthe right-of-way as reasonably necessary forroadpurposes. 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 ofthe 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 occursin an areaoverwhichthe commissioners courthas 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, ifacommissioners court determines that access points within the county right-of-way cause damage to county roads, and subsequently concludes thatrequiring apermitfor their constructionis necessaryto maintain countyroads 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 oftrees in right-ofwayupon a "reasonablefinding that [they] would interfere withright-of-waypurposes"). 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 authorityto impose a fee.") (citingMoore 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 ofa 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 courthas the authority to require access-point permits for construction within the county right-of-way under sections 251.003 and 251.016 ofthe 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 ofthe commissioners court, subject tojudicial review. See Anderson, 152 S.W.2d atThe HonorableJoshuaHamby

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1085; Comm 'rs Ct. ofTitus 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 withoutjust compensation ifthey are not "roughly proportional" to the impact that the access points will have onthe county roads. See Town of FlowerMoundv. StaffordEstatesLtd. P 'ship, 135 S.W.3d 620, 634 (Tex. 2004) (applyingthe standardthat acondition ofgovernment approval for the development ofproperty must "bear[] an essential nexus to the substantial advancement ofsome legitimate government interest and [be] roughly proportional to the projected impact of theproposed development").
We next considerwhetherthe commissioners courtmay require apermitand 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 ofboth the Texas and United States Constitutions. FirstAm. 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 ofthe Equal Protection Clauses unless something about the targeted industry makes it uniquely deserving of special permitting requirements. Ifthe county were to impose special requirements on all access points that carry heavy traffic-ratherthan on access points associated with a certain industry-its actions would be less likely to run afoul ofequal protection requirements. Whether a particular permitting scheme satisfies that standard is a matter for the commissioners court to decide, subject to judicialreview.The HonorableJoshuaHamby

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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 countyroads. Section 251.017 authorizes a commissioners courtto setareasonable fee for suchpermits.

DANIEL T

.HODGE FirstAssistant Attorney General
JAMES D. BLACKLOCK DeputyAttorney General for Legal Counsel
VIRGINIAK. HOELSCHER Chair, OpinionCommittee StephenL. Tatum, Jr. AssistantAttorney General, OpinionCommittee