EXAS 

Honorable E. Paul Banner 

County Attorney 

Hunt County 

Greenville, Texas 

Opinion No. C-389 

Re: Whether persons entering 

a state highway right of 

way enclosed by an unauthorized fence, can be 

prosecuted under Article 

1377b, Vernon’s Penal Code, 

Dear Mr. Banner: and related questions. 

Our opinion has been requested on five questions based 

on the following fact,6 as submitted by you. 

“The owner of land adjaoent to both sides of 

a state highway bridge (which crosses the Sablne 

River) . . . has built and maintains a stockpass 

and private underpass underneath said highway 

bridge. ” 

Both tracts of land connected by the stockpass are situated on the north side of the Sabine River. The land being 

used for the road and bridge ~has been acquired in part by 

prescriptive easement created in favor of the public in general for road purposes and in part by deed to the Texas Highway Department. Permission to use the land underneath the 

bridge for a stockpass was granted to the landowner in a 

letter from the District Engineer of the Texas Highway Department, but a written agreement has not been executed by the 

parties. 

While attempting to make a complete enclosure, you state 

that a fence encloses the land on three sides and runs along 

the side of the bridge and underneath the bridge. The fence 

does not cross the river but “goes down to the water’s edge, 

and cattle cannot go up and down the river below the fence. . . . 

The water stands 10 to 20 feet deep in the river - cattle 

never cross it. ” 

Gates have been placed under the bridge along the fence 

for the “use of the Highway Department in making repairs to 

the bridge, etc. ” 

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Hon. E. Paul Banner, page 2 (C-389) 

"People go through the gates and some of them 

camp under the bridge, and they leave the gates 

open on many occasions, and they prevent the owner 

of the use of the easement for grazing, . . . and 

people fish from the bank, . . . and land boats 

on to the river." 

You have further advised us that the portion of Sabine 

River involved in this matter comes within the purview of 

Article 4026b, Vernon's Civil Statutes, and is 'non-navigable" in so far as all hunting and fishing rights on and 

along said stream are concerned, provided, however, that 

the State of Texas is not divested of whatever title it may 

have to the bed or waters of said stream. 

In connection with these facts, you have requested the 

opinion of this office as to the following questions: 

"1 . Can an individual who is not an employee 

or agent on duty with the state highway department be prosecuted for trespassing under Article 

1377b, Section 1 (c) of Vernon's Penal Code if they 

go upon the easement under such conditions as described above? 

"2 . Can an individual be prosecuted under 

Article 1352 for failure to close the gates 

above described that are provided for access 

for the highway department only? 

"3 . Can an individual be prosecuted for 

camping under a bridge on the highway, if 

there is not a fence or stockpass under such 

bridge? 

"4. Does a flat, metal stock gate, the type 

that you drive across on a road, constitute part 

of a fence to form an enclosure for the purpose 

of prosecution under Article 1377b, Section 1 

(cl? 

"5 . Can an individual be prosecuted for 

crossing a stockpass and crossing over the 

easement to land a boat or fish on the banks 

of a stream along such easement, when such 

stockpass is fenced and enclosed under Article 

1377b, Section 1 (b)? 

-1841- 
Hon. E. Paul Banner, Page 3 (C-3p9) 

We will answer your questicdlsin the order they were submitted. 

Question No. 1 involves Article 1377b, Section 1 (c), 

which reads as follows: 

“The 

Article 6674n-1 Vernon's Civil Statutes provides that 

Texas Highway Department may enter into written agreements with owners of the lands abutting or adjoining the 

lands acquired by the Department for right of way for any 

highway, farm to market road, or other roadway in the 

State Highway System, under the terms of which such owners 

of abutting or adjoining lands may be authorized to use and 

cultivate such portions of the right of way at may not be 

required for immediate use of the department. . . . "Such 

agreements shall be executed by the owners of the adjoining 

or abutting lands and the State Highway Engineer or his authorized representative." (Emphasis added.) 

"No person shall enter or attempt to enter upon the enclosed land of another without consent of the owner, proprietor, lessee, 

or person in charge thereof, and camp or 

attempt to camp or in any,,manner encroach 

upon or damage such land. 

The language of the statute indicates that the agreement is to be in writing and signed by both parties, and that 

the agreement could not be authorized until such formalities 

were observed. Gi~lbert v. Texas Co., 218 S.W.2d 906 (Tex. 

Civ.App., error ref. n.r.e.); "If the reduction of the agreement to writing is thus made necessary, an assent to the 

writing as a sufficient one must also be manifested; thiz 

manifestation commonly consists of signing and delivery. 

Corbin 'on Contracts, Vol. 1, Section 32, p. 126. The letter 

from the District Engineer referred to above does not constitute a written agreement as contemplated by the statute. 

We therefore hold under the facts stated, that the landowner 

does not have the lawful authority to place a fence on the 

highway right of way and that a person who crossed the enclosure in order to reach the right of wa would not be in 

;;;Ftion of Article 1377(b) Section 1 [c Ternon's Penal 

. The answer to Question No. 1 is No. 

Question No. 2 refers to Article 1352, Vernon's Penal 

Code, which is set forth as follows: 

-1842- 
- . 

Bon. E. Paul Banner, page 4 (C-389) 

"If any person shall break, pull 

injure the fence of another without 

sent, or shall wilfully and without _ _ 

down or 

his conthe consent of the owner thereof open and leave open 

any gate leading into the enclosure of another, 

or shall knowingly cause any hogs, cattle, 

mules, horses or other stock to go within the 

enclosed lands of another without his consent, 

or shall tie or stake out, or cause to be tied 

or staked out to graze within any enclosed 

lands not his own and without the consent of 

the owner any horse, mule or other animal, he 

shall be fined not less than ten nor more than 

one hundred dollars, and in addition thereto 

may be imprisoned in jail not exceeding one 

year. " 

The gates in question are gates leading to a stockpass 

located on a highway right of way without proper authority 

for placing them there, and in our opinion, it would not be 

a violation of this statute if they were left open without 

the consent of the owner of the fence and gate. The answer 

to Question No. 2 is "No." 

We are unable to answer your third question as you did 

not state whether the land upon which the individual camped 

was within the enclosure of another. Article 1377b, Section 

1 (Cl' 

Question No. 4 concerns the nature of an "enclosure" 

required under Article 13'i"i'b, Section 1 (c) as defined in (d). 

The pertinent portion of (c) is quoted as follows: 

"No person shall enter or attempt 

upon the enclosed land of another. . 

to znter 

. . 

Article 137713, Section 1 (d) defines 

follows: 

enclosed land as 

"For the purpose of this Act enclosed land 

shall mean such lands as are used for agriculture and grazing purposes or for any other 

purpose, and enclosed by structure for fencing 

either of wood or iron or conbination thereof 

or wood and wire, or partly by water and stream,, 

canyon,, brush, rock or rocks, bluffs or island. 

The term "fence" in a statute in reference to the duty 

of a railroad company'to fence its tracts, includes cattle 

guards. 16A Words & Phrases 5 and cases cited therein. 

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( 
_ - 

3ion. E. Paul Banner, page 5 (C-389) 

The Court in Burch v. State, 67 S.W. 500 (Tex; Grim. 

1902)stated: 

"Webster defines a fence to be Ito enclose 

with a hedge, wall or anything that prevents 

the escape or entering of cattle; to secure by 

an enclosure. 1 " 

We conclude under this language that a fence which is 

partly constructed by using a metal cattle guard or flat 

metal stock gate comes within the definition of "enclosed 

land" as contemplated by the statute 

No. 4 “yes”. 

, and we answer Question 

Question No. 5 refers to Article 1377b, Section 1 (b), 

which is quoted below: 

"No person shall enter or attempt to enter 

upon the enclosed land of another without consent of the owner, proprietor, lessee, or 

person in charge thereof, and catch or attempt 

to catch fish from any pond, lake, tank, stream 

or any body of water therein." 

The enclosed land in question is partially comgos$d of 

highway right of way,, and we answer Question No. 5 ,No , 

in so far as it relates to the facts presented for our 

consideration. 

-- SUMMARY 

Under the facts stated when individuals pass 

through an enclosure constructed partially on a 

highway right of way without proper authority 

for said construction, in order to reach the 

right of way, the individuals are not guilty of 

violation of Article 1377b, Vernon's Penal Code. 

Yours very truly, 

WAGGGNERCARR 

Attorney General of Texas h 

Assistant ittorney General 

cm :ms 

-1844- 
Hon. E. Paul Banner, page 6 (C-389) 

APPROVED: 

OPINION CO-EE 

W. V. Geppert, Chairman 

Milton Richardson 

Paul Phy 

Grady Chandler 

George Black 

APPROVED FORTHEATTORNEYGENERAL 

By: Stanton Stone 

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