### ATTORNEY GENERAL OFTEXAS GREG ABBOTT

August 9,2005

The Honorable William E. Parham Wailer County Criminal District Attorney 836 Austin Street, Suite 103 Hempstead, Texas 77445 Opinion No. GA-0345 Re: Authority of acounty to accept aprivate road into its county road system under either Local Government Code section 81.032 orTransportation Code section 252.214 (RQ-0316-GA)
Dear Mr. Parham: You inform us that several landowners in aprivate subdivision have approached the Waller County Commissioners Court with questions about the county’s authority to accept aprivate road, Lynnwood Lane (“Lynnwood”), into the Waller County road system.’ Specifically, you tell us that the landowners have agreed to grant Waller County an easement over, or agift deed to, Lynnwood and would furnish all the materials necessary to upgrade its condition. See Request Letter, supra note 1,at 2. In response to the landowners’ proposition, you ask if either Local Government Code section 81.032 orTransportation Code section 252.214 authorizes the commissioners court to accept the interest in Lynnwood along with the materials the landowners have offered to refurbish it as an alternative to the procedures outlined in the Transportation Code that apply to counties and their authority to bring p&ate roads into the county road system. See id. You have identified two relevant chapters from the Transportation Code. The first, Transportation Code chapter 281, governs a commissioners court’s authority to acquire apublic interest in aprivate road in counties with populations of less than 50,000 people, see TEX.TRANSP. CODE ANN. $5 28 1.OOl, ,002 (Vernon 1999), which is the case for Waller C~unty.~ According to this chapter, acounty may acquire apublic interest in aprivate road only bypurchase, condemnation, express dedication, or acourt’s final judgment of adverse possession. See id. $281.002. Here, the landowners wish to donate an interest in the private road to the county by gift deed or easement. See Request Letter, supra note 1, at 2. Under chapter 281 such a donation is accomplished by dedication, which is “an explicit voluntary grant of the use of aprivate road for public purposes . . .

‘SeeLetter fromHonorable William E.Parham, Wailer County CriminalDistrict Attorney, toHonorable Greg Abbott, Texas Attorney General (Feb. 7,2005) (on file with Opinion Committee, also available athttp://www.oag .state.tx.us) [hereinafter Request Letter].

‘See BUREAU

OF CENSUS,

U.S. DEPT.OF COMMERCE, 2000 CENSUS

OF POPULATION,

available at http://quickfacts.census.gov/qfdstates/48/48473.htrnl (Wailer County population: 34,579).The Honorable William E. Par-ham - Page 2 (GA-0345)

[that] must be communicated in writing to the commissioners court of the county in which the real property is located.” TEX. TRANSP. CODE ANN. 0 281.003(a) (Vernon 1999). However, “an oral dedication or intent to dedicate by overt act is not sufficient to establish a public interest in a private road under this chapter.” Id. 5 281.003(b). And “[a] dedication is a mere offer; the commissioners court must accept it for the street or road tobecome acounty road.” Tex. Att’y Gen. Op. No. GA-0139 (2004) at 4. The second chapter, Transportation Code chapter 253, applies generally to counties and governs acommissioners court’s authority to improve private subdivision roads. Seegenerally TEX. TRANSP. CODE ANN. $0 253.001-.Oll (Vernon 1999 & Supp. 2004-05).3 Specifically, it permits a commissioners court to improve aprivate subdivision road to comply with county standards ifthe court determines that the improvement4 is necessary for the county residents’ public health, safety, or welfare and to assess the cost of the improvement against the subdivision’s record owners, see id. $ 253.003 (Vernon Supp. 2004-05). But the commissioners court must hold apublic hearing on the issue and obtain approval of a majority vote of the landowners in the subdivision. See id. $5 253.005-.007 (Vernon 1999 & Supp. 2004-05). A road improved this way is acounty road that the county is required to maintain according to county road standards. See id. 9 253.011 (Vernon 1999). You ask about two provisions that authorize commissioners courts to accept donations. Local Government Code section 81.032 permits a commissioners court to “accept a gift, grant, donation, bequest, or devise of money or other property on behalf of the county for the purpose of performing a function conferred by law on the county or acounty officer.” TEX. Lot. GOV’T CODE ANN. 9 81.032 (Vernon Supp. 2004-05). Similar in design, Transportation Code section 252.214 permits acommissioners court that has adopted the chapter 252 county road superintendent system’ to “accept donations oflabor, money, or other property to aid in building or maintaining roads in the county.” TEX. TRANSP. CODE ANN. 5 252.214 (Vernon 1999). You suggest that these provisions operate as alternative means ofbringing aprivate road into the county road system:

As the county has the right to acquire apublic interest in a private road, and has the right to accept gifts or donations to aid in building or maintaining roads (a function allowed the county), it appears that the commissioners’ court may accept the easement ordeed along with

‘Chapters 253 and 281are cumulative suchthatacounty withapopulation of50,000 or lessmay bring aroad into the county road system under either section 253.011 or 281.002. See Tex. Att’y Gen. Op. No. GA-0139 (2004) at7. 4“Improvement” is defined inthe chapter as “construction orrepair.” TEX.TRANSP. CODEANN. 0 253.002 (Vernon 1999). 5Weassume thatby your reference to section 252.214, see Request Letter, supra note 1,at 3,Waller County hasadopted the chapter 252, subchapter Croad superintendent system such that section 252.214 would apply.The Honorable William E. Parham - Page 3 (GA-0345)

the materials and accept Lynnwood Lane into the Waller County road maintenance system. Request Letter, supra note 1, at 3. This office has previously established that neither Transportation Code section 252.214 nor Local Government Code section 81.032 authorizes acommissioners court to accept adonation for purposes inconsistent with the state constitution or laws. See Tex. Att’y Gen. Op. Nos. JC-0073 (1999) at 2-3 (establishing this for section 252.214); JC-0443 (2001) at 2-3 (establishing this for section 81.032). And though Texas Constitution article III, section 52f permits a county with a population of 5,000 or less to construct and maintain private roads ifitimposes areasonable charge for the work,6 counties with populations that exceed 5,000, like Waller County, are not constitutionally or statutorily authorized to construct or maintain private roads. See Tex. Att’y Gen. Op. No. JC-0503 (2002) at 2. Thus, these two provisions do not authorize the Waller County Commissioners Court to accept donations for maintaining aprivate road. Moreover, Transportation Code chapters 253 and 28 1operate asthe exclusive statutory authority by which Waller County may bring aprivate road, like Lynnwood, into its county road system. The Waller County Commissioners Court may accept donations for maintaining aroad under Transportation Code section 252.214 or Local Government Code section 81.032 only after the road has become a part of the county road system either through adonation ofthe private road by dedication under Transportation Code chapter 28 1or after the county improves the private road under Transportation Code chapter 253.

6SeeTEX.CONST.art. III, 952f.The Honorable William E. Parham - Page 4 (GA-0345)

SUMMARY The Waller County Commissioners Court must follow the procedures outlined in Transportation Code chapter 253 or 281 to bring a private road located in Waller County into its county road system before itcan accept donations for maintaining that road under Local Government Code section 81.032 or Transportation Code section 252.2 14. Very truly yours,

BARRY R. MCBEE First Assistant Attorney General DON R. WILLETT Deputy Attorney General for Legal Counsel NANCY S. FULLER Chair, Opinion Committee Daniel C. Bradford Assistant Attorney General, Opinion Committee