. . . r. : - 

August 2, 1954 

Hon. Austin F. Anderson 

Criminal District Attorney 

Bexar County 

San Antonio 5, Texas 

Dear Mr. Anderson: 

Opinion No. S-137 

Re: Purchase of right of 

way by county. 

You have requested an opinion on the following 

questi.on: 

'Whether Bexar County can legally purchase out 

of Road and Bridge Funds 1.24 acres of land from 

Mrs. Mantlna E. Rodriquez for a road to be known as 

Rodriquez Road, the purpose of which,,is to serve as 

an access road to a new County Park. 

According to the facts submitted with your request, 

Bexar County has purchased 1.24 acres of .land from,Mrs. 

Martina E. Rodrjquez constituting a 5O-foot right of way 

approximately 1,032 feet in length from an intersection of 

U. S. Highway 90 West to a County Park located north of such 

'ntersection. The Commissioners' Court has designated the 

proposed road as a publ-i~c road and cansequcntly, part of the 

county road ~systern. Disi,,ute has arisen as to whether such 

road constitutes, as a matter of law, a public road. 

In Bradford v. Moseley, 223 S.W. l',:l (Tex- Corn. App. 

1920) the court in determining what constituted a Fublic 

road stated: 

"What is a public road is in a measure dependent 

upon the facts of each particular case, but the 

character of a road does not depend on its length, nor 

upon the place to which it leads, nor is its 

character determined by the nu,mber of people who 

actuallv travel uoon it. Decker v. Menard (Civ. ALP.) 

2~1 S.W. 728; Elliott on Roads 88 1 to 7. A‘road may 

be established which is la cul-de-sac. Id. A road 

op'en to the public is a 'public road, though one person 

may be most, benefited by it. Galveston, etc. v. 

Bnudat, 18 Tex. Civ. ALP. 595, ,+', S.W. 939. It -i-s a 

h,,f.:hway 1.i’ there :i~s a general right 'to use it for 

travel, and if it i.s o;en to the use of all the people. 

Elliott on Roads, 85 l-3; Sum'r etc. v. Interurban, 

etc., 141 Tenn. 493, 213 S.W. TlS. 
. - 

Hon., Austin F. Anderson, page 2 (s-137) 

II 

* . . It is obvious from the statement of the 

case that the whole controversy resolves itself into 

one question: Did the Commissioners' Court of Palo 

Pinto Oounty abuse the discretion vested in it by 

law in opening the road? 

"This is true because it is a part of the statement of facts that evidence of all the stat,utory 

requirements precedent to the opening of the road 

was offered, and that all were in due and legal 

form, and the trial court found that the commissioners' court determined that a necessity for the road 

existed, and that due notice was given. Such finding 

was as binding as would have~been the verdict of a 

jury. 'I 

Likewise, it is stated in Rindge Company v. County 

of Los Angeles, 

71923): 

262 U. S. 700, 76 L.Ed. 1186, 43 S. Ct. 689 

If 0 . . It is not essential that the entire community nor even any considerable portion, should 

directly enjoy or participate in an improvement in 

order to constitute a public use.” 

In Attorney General's Opinion V-1169 (1951) this 

office held that farm to market and lateral roads constituted 

any public road of the county leading either directly or 

indirectly from the farms to some market exclusive of design 

nated State highways, citing Hastings v. Pfeiffer, 184 Ark. 

952, 43 S.W.2d 1073 (1931). 

In Attorney General's Opinion V-675 (1948) it was 

held that whether a public road is a necessity is a fact 

question to be ascertained by the Commissioners' Court. 

Since the road in question has been designated by 

the Commissioners' Court of Bexar County to be a county 

road, and the road is open to the public, and is in fact 

adapted as a way of convenience for the public to travel to 

and from the County Park, it is our opinion that such road 

would constitute a county road and part of the county road 

system. Therefore, the purchase of this right of way may be 

paid for out of the Road and Bridge Fund of the County. 

Carroll v. Williams, 109 Tex, 155 202 S.W. 504 (1918). 
Hon. Austin F. Anderson, Page 3 (S-137) 

SUMMARY 

A county has the authority to purchase, out of 

the Road and Bridge Fund of the County, land 

for a right of way to be used as a public road 

of the county leading from a County Park to an 

intersection with a designated State highway. 

Yours very truly, 

APPROVED: 

J. C. Davis, Jr. 

County Affairs Division 

JOHN BEN SHEPPERD 

Attorney General 

W. V. Geppert 

Reviewer 

Enos F. Jones 

Reviewer 

Assistant 

Robert S. Trotti 

First Assistant 

John Ben Shepperd 

Attorney General 

JR:cs