### ATTORNEY GENERAL OF 

### TEXAS GREG ABBOTT
May 12,2006

The Honorable Mark E. Price San Jacinto County Criminal District Attorney 1 State Highway 150, Room 21 Coldspring, Texas 77331 Opinion No. GA-0430
Re: Authority of a county to remove an abandoned mobile home from county rightof-way (RQ-0412-GA)
Dear Mr. Price: Two mobile homes’ have been abandoned on the right-of-way of a county road in San Jacinto County (the “County”)? You inform us that they present a potential safety hazard unless moved and inquire whether a constable or county commissioner has a right or duty to remove them. See Request Letter, supra note 2, at 1. You refer us to the Transportation Code and inquire whether section 545.305 1 authorizes the removal of the manufactured homes, see id., and whether it limits liability for personal injury or death.’ 

### See also TEx. TRANSP. CODE ANN. $545.3051 (Vernon Supp. 2005).



### ‘A mobile homeisa stmctllre (i) constructed

before June15,1976; (ii) builtonapermanent

chassis; (iii) designed

foruseasa dwelling

withorwithout

apermanent

foundation when thestmcture

isconnected

totherequired

utilities; (iv) transportable

in oneormoresecdons;

and (v) [with certain minimum dimensions]. TEX. Oct. CODE ANN. 5 1201.003(17)

(Vernon 2004).A“HUD-code

manufactured

home” isastructure

with physical characteristics

identical tothose ofamobile home butthatwas“constructed

onora&r June15,1976,

according tothe mlesoftheUnitedStatesDepartmentofHousingandUrbanDevelopment.” Id. 

### § 1201.003(9).

Bothmobilehomes

and HUD-code manufactured

homes are

### “manufactured

homes.”

Id. 5 

### 1201.003(15).

Inthis opinion,we

### willusetheterm manufactured

home.

‘Letter from 

### Honorable

Mark E.Price,SanJacintoCounty Criminal District

### Attorney,

to Honorable

Greg Abbott, Attorney General ofTexas (Nov. 4,2005)(onfilewith

theOpinion

Committee,

alsoavailable at 

### http:iluww .oag.state.tx.us)

[hereinafter

Request Letter].

‘Letter fromHonorable

Mark E. Price,SanJacintoCounty Criminal District Attorney, to Honorable

Greg Abbott, Attorney General ofTexas(Dec.

7,2005)(onfilewith

theOpinion

Committee,

alsoavailable at 

### http:llwww .oag.state.tx.us)

[hereinafier

Supplemental

Request Letter].Honorable Mark E. Price - Page 2 (GA-0430)

Section 545.3051 was added to the Transportation Code in 2003. See Act of May 21,2003, 78th Leg., ch. 803, § I,2003 Tex. Gen. Laws 2355. At the time the provision was enacted, only the Texas Department of Transportation was expressly authorized to remove personal property from roadways and was provided liability protection for damage caused by the removal. See SENATE COMM.ONINFRASTRUCTUREDEVELOPMENT&SECURIT(,BILLANALYSIS,T~~.S.B. 165,78thLeg. R.S. (2003); see also TEX. TRANSP. CODE ANN. § 472.01 l-.015 (Vernon 1999 & Supp. 2005). Section 545.3051 extended the authority to remove personal property from roadways to local law enforcement entities. See TEX. TRANSP.CODEANN. 3 545.305 1 (Vernon Supp. 2005). Section 545.305 1 also extended the liability protection enjoyed by the Texas Department of Transportation to the local law enforcement entities. See id. Section 545.3051 provides that an “authority or a law enforcement agency may remove personal property from a roadway or right-of-way if the authority or law enforcement agency determines that the personal property blocks the roadway or endangers public safety.” 

### Id. 5 545.3051(b). The section also provides that

[n]otwitbstanding any other provision of law, an authority or a law enforcement agency is not liable for: (1) any damage to personal property removed from a roadway or right-of-way under this section, unless the removal is carried out recklessly or in a grossly negligent manner; or (2) any damage resulting from the failure to exercise the authority granted by this section. 

### Id. 5 545.3051(e). The term “law enforcement agency” includes [the Texas Department of Transportation], see 

### id. $20 1.OO 1, a municipal police department, a county sheriff, and a constable. See also 

### id. 5 545.3051(2). The plain language of section 545.3051 gives removal authority to a county constable but not to a commissioners court or an individual county commissioner. See 

### Fitzgerald v,Advanced Spine Fixation Sys., 996 S.W.2d X64,865-66 (Tex. 1999) (court construes a statute by looking to the plain meaning of the statute’s language). Section 545.305 1authorizes the removal ofpersonal property. See TEX.TRANSP.CODE ANN. 5 545.3051(3) (Vernon Supp. 2005). “Personal property” is defined as

(A) a vehicle described by Section 545.305; (B) spilled cargo; (C) a hazardous material as defined by 49 U.S.C. Section 5102 and its subsequent amendments; orHonorable Mark E. Price - Page 3 (GA-0430)

(D) a hazardous substance as defined by Section 26.263, Water Code. 

### Id. Section 545.3051 limits the term “vehicle” by reference to section 545.305. See 

### id. 5 545,3051(a)(3)(A). Section 545.305 does not expressly define “vehicle” but .rather describes the circumstances that allow for the removal of an unlawlirlly stopped vehicle. See 

### id. 5 545.305(a) (Vernon 1999). The abandonment of the manufactured homes about which you inquire likely falls within the circumstances described by section 545.305 if the homes are considered vehicles.4 See 

### id. 5 545.305(a)(5) (authorizing vehicle removal if unattended and an officer believes it to have been abandoned for longer than 48 hours). Thus, we must determine if the manufactured homes are “vehicles” as contemplated by sections 545.305 and 545.3051. Nowhere in chapter 545 is the term “vehicle” expressly defined. See generally 

### id. ch. 545 (Vernon 1999 & Supp. 2005). Chapter 545 is contained in title 7, subtitle C of the Transportation Code, however, and chapter 541 defines terms for the whole of subtitle C. See 

### id. 5 541.201(23) (Vernon Supp. 2005). Under section 541.201(23), the word “vehicle” is defined as a “device that can be used to transport or draw persons on a highway.” 

### Id. 5 541.201(23) (“In this subtitle

“). Section 541.201(23) expressly excludes from the definition “(A) a device exclusively used on stationary rails or tracks; or (B) manufactured housing as that term is defined by Chapter 1201, Occupations Code.” 

### Id. Given the clear terms of the applicable statutory definition, we conclude that amanufactured homeis not a”vehicle”forpurposes ofsections 545.305 and 545.3051, andthus is not “personal property” under section 545.305 1. A county constable, therefore, is not authorized by section 545.305 1to remove abandoned manufactured homes from county roads or right-of-ways. Though you inquire specifically only about section 545.3051, it appears your ultimate concern is about the potential danger posed by the abandoned manufactured homes. We find other authority by which a county may remove the abandoned manufactured homes from the right-of-way of a county road. A county commissioners court has “general control over all roads, highways, and bridges in the county.” 

### Id. 5 25 1.016. “In the discharge of such duty [a commissioners court is the] trustee[] of the public county roads for the whole public.” 

### Hill Farm, Inc. v. Hill County, 425 S.W.2d 414,417 (Tex. Civ. App.-Waco 1968), 

### uff’d, 436 S.W.2d 320 (Tex. 1969). The “general control” language5 of the statutory predecessor of section 251.016 has been construed by the Texas Supreme Court as authorizing county actions that are “related to [the county’s] duty to protect the public’s interest in transportation.” 

### City of 

### Sun Antonio v. City of 

### Boerne, 111 S.W.3d 22, 30 (Tex. 2003) (citing 

### Canales v. Laughlin, 214 S.W.2d 451, 456-57 (Tex. 1948)). Moreover, the Transportation Code assigns a county the duty to keep all classes of roads free from obstructions.



### “Whether themanufactured

homes have been abandoned isultimately

afactquestion

fortheCounty.

See Tex. Att’y Gen.Op. No.GA-0139

(2004) at 5(theopinion

process does notdetermine

facts). % 1999, section81.028

oftheLo&lGovernment

Code wassignificantly

amended andthis language

was moved totheTransportation

Codeassection

251.016. SeeActofApril23, 1999,76tb Leg., RX, ch.62,5 13.1

l(b), 1999 Tex.Gen. Laws127,351.Honorable Mark E. Price - Page 4 (GA-0430)

See TEX. TRANSP.CODEANN. 5 251.008(l) (Vemon 1999). This office has previously opined that a county commissioners court has the power to order the removal of an obstruction from a county road. See Tex. Att’y Gen. Op. No. M-534 (1969) at 4. We believe that a county commissioners court could conclude that the abandoned manufactured homes in the right-of-way of a county road constitute an obstruction that affects the safety and transportation of the public. See, e.g., Tex. Att’y Gen. Op. No. V-177 (1947) at 2 (stating that “[alny narrowing of the road to less than its legal width is an obstruction, and any obstruction that interferes with the road in the sense of making it less convenient for travel is an offense”). Through its general control over county roads and pursuant to its duty to keep all classes of county roads free of obstructions, we believe the County Commissioners Court has sufficient authority to remove the manufactured homes from the county road right-of-way. You inquire whether there is potential civil liability if the abandoned manufactured homes are not removed and someone is injured or killed. See Supplemental Request Letter, 

### supra note 3, at 1. As a manufactured home is not within the scope of section 545.3051, the liability protection afforded a law enforcement agency under section 545.3051 is not applicable. Absent the specific liability provisions of section 545.3051, we believe the Texas Tort Claims Act would address any potential liability for the County’s failure to remove the abandoned manufactured homes. See TEX. CIV. PRAC. & REM. CODEANN. ch. 101 (Vernon 2005 & Supp. 2005) (Texas Tort Claims Act). Because the merits of any particular lawsuit would be determined by the specific facts involved and because this office does not resolve fact questions, se2 Tex. Att’y Gen. Op. No. GA-0298 (2005) at 3 (opinion process cannot resolve fact questions), we do not opine on any potential County liability under the Texas Torts Claims Act.Honorable Mark E. Price - Page 5 (GA-0430)

SUMMARY Under the ‘clear terms of the applicable statutory definition of vehicle, which expressly excludes manufactured housing, amanufactured home is not included within the scope of section 545.3051, Transportation Code. Thus a county constable is not authorized by section 545.3051 to remove abandoned manufactured homes from the right-of-way of a county road. A county commissioners court may order the removal of manufactured homes pursuant to its general control over county roads and its duty to keep county roads free from obstructions. Because section 545.3051 is not applicable, all questions of potential liability would be addressed by the Texas Tort Claims Act.
Verv trulv yours.

Attome&.n&al of Texas

BARRY R. MCBEE First Assistant Attorney General
ELLEN L. WITT Deputy Attorney General for Legal Counsel NANCY S. FULLER Chair, Opinion Committee Charlotte M. Harper Assistant Attorney General, Opinion Committee