ATTORNEY GENERAL OF TEXAS 

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 a county to accept a private road 

into its county road system under either Local 

Government Code section 81.032 or Transportation 

Code section 252.214 (RQ-0316-GA) 

Dear Mr. Parham: 

You inform us that several landowners in a private subdivision have approached the Waller 

County Commissioners Court with questions about the county’s authority to accept a private 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 a gift 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 or Transportation 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 a public 

interest in a private 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, a county may acquire a public interest in a private road only by purchase, condemnation, 

express dedication, or a court’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 a private road for public purposes . . . 

‘See Letter from Honorable William E. Parham, Wailer County Criminal District Attorney, to Honorable Greg 

Abbott, Texas Attorney General (Feb. 7,2005) (on file with Opinion Committee, also available at http://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 to become a county 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 a commissioners 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 a private subdivision road to comply with county standards if the 

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 a public 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 a county 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 a county officer.” TEX. Lot. GOV’T CODE 

ANN. 9 81.032 (Vernon Supp. 2004-05). Similar in design, Transportation Code section 252.214 

permits a commissioners court that has adopted the chapter 252 county road superintendent system’ 

to “accept donations of labor, 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 of bringing a private road into 

the county road system: 

As the county has the right to acquire a public 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 or deed along with 

‘Chapters 253 and 28 1 are cumulative such that a county with a population of 50,000 or less may bring a road 

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 in the chapter as “construction or repair.” TEX. TRANSP. CODE ANN. 0 253.002 

(Vernon 1999). 

5We assume that by your reference to section 252.214, see Request Letter, supra note 1, at 3, Waller County 

has adopted the chapter 252, subchapter C road 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 8 1.032 authorizes a commissioners court to accept a donation 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 8 1.032). 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 if it imposes a reasonable 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 a private road. Moreover, Transportation 

Code chapters 253 and 28 1 operate as the exclusive statutory authority by which Waller County may 

bring a private road, like Lynnwood, into its county road system. The Waller County Commissioners 

Court may accept donations for maintaining a road under Transportation Code section 252.214 or 

Local Government Code section 8 1.032 only after the road has become a part of the county road 

system either through a donation of the private road by dedication under Transportation Code chapter 

28 1 or after the county improves the private road under Transportation Code chapter 253. 

6See TEX. CONST. art. III, 9 52f. 
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 it can 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