THE ATTORNEY GENERAL 

OF TEXAS 

October 6, 1989 

Honorable Pamela K. McKay Opinion No. JM-1105 

Kendall County Attorney 

204 East San Antonio Street Re: Authority of a commisSuite 12 sioners court to reclassify 

Boerne, Texas 78006 a second class road as a 

neighborhood road (RQ-1768) 

Dear Ms. McKay: 

You ask whether the commissioners court has authority 

to reclassify a second-class road as a neighborhood road. 

Your specific question is "whether [the county] can alter 

the road classification specifically to allow a landowner to 

make use of grazing land, and arguably inconvenience the 

non-landowners who use the road and [who] will be required 

to negotiate two bump gates if the road is reclassified." 

You state that a landowner is interested in erecting 

bump gates at either end of a 2.5 mile stretch of secondclass county road that runs through the owner's 558 acres of 

grazing land. The erection of bump gates would allow the 

owner to run goats on the property. You advise that bump 

gates are opened by nudging the gate with a vehicle's front 

bumper and that the gate closes behind the vehicle without 

the necessity of the driver exiting the vehicle. 

Subsection 2.007(f) of article 6702-1, V.T.C.S., sets 

forth the conditions under which a gate may be placed across 

a county road. Subsection 2.007(f) provides: 

The owners of land across which a thirdclass or neighborhood road may run, when the 

right-of-way for the road has been acquired 

without cost to the county, mav erect sates 

across the road when necessary, the gates to 

be not less than 10 feet wide and free of 

obstructions at the top. (Emphasis added.) 

Subsection 2.007(a) of article 6702-l provides that the 

commissioners court shall classify all public roads in the 

county as first-class, second-class, or third-class roads 

based on the width of the road. Subsection 2.007(c) 

P- 5793 
Honorable Pamela K. McKay - Page 2 (JM-1105) 

provides that a "first-class or second-class road may not be 

reduced to a lower class." 

Section 2.006 of article 6702-l sets forth the circumstances under which a commissioners court may establish a 

neighborhood road. Any landowner to whose land there is no 

public road or means of access may apply to the commissioners court for an access road connecting his land with a 

public road system. Id. 5 2.006(b). Notice must be given 

affected landowners and, following a hearing, the commissioners court may declare lines designated in the application or fixed by the court to be a public highway if it 

appears that the applicant has no other means of access to 

his land.1 Id. (c)t Cd). 

1. While the road in question is in existence and 

there is no question of the taking of property by a county 

for the use of an individual, the opinion of the supreme 

court in Maher v. Lasater, 354 S.W.2d 923 (Tex. 1962), might 

raise some question about the constitutionality of the 

neighborhood road statute. See 36 D. Brooks, County & 

Special District Law § 40.9 (Texas Practice 1989). 

In Maher, the court stated: 

Prior to amendment by the Legislature in 

1953, Article 6711 authorized Commissioners 

Courts to declare a roadway to be a public 

highway only if they deemed 'the road of 

sufficient public importance.' As so written 

the statute conditioned the taking of property upon a finding that it would be dedicated 

to a public use. By Acts 53rd Leg., p. 1054, 

ch. 438, the requirement for a finding that 

the road was of public importance was eliminated, and Commissioners Courts are now authorized to declare a private roadway to be a 

public highway if applicants therefor wish it 

to be done and 'have no means of access to 

their lands and premises.I In so far as the 

amendment seeks to authorize the taking of 

private property for private use, it is 

unconstitutional .and void. 

Maher, suora, at 925. 

P. 5794 
Honorable Pamela K. McKay - Page 3 (JM-1105) 

You have provided us with a copy of a brief filed with 

the commissioners court in support of this landower's 

application. The brief recognizes that subsection 2.007(c) 

prohibits the commissioners court from reducing a secondclass road to a third-class road but urges that since a 

neighborhood road is a distinct non-numerical classification 

there is no limitation on reclassifying a second-class road 

as a neighborhood road. 

A prerequisite to the establishment of a neighborhood 

road under section 2.006 is thatthere is no means of access 

for the landowner to a public road. Under the scenario you 

have provided there is a second-class road in existence. 

Therefore, there is no basis for establishing a neighborhood 

road in the situation you describe. 

SUMMARY 

The commissioners court is without authority to reclassify a second-class road as a 

neighborhood road. 

JIM MATTOX 

Attorney General of Texas 

MARYKELLER 

First Assistant Attorney General 

LOU MCCREARY 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAKLEY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Tom G. Davis 

Assistant Attorney General 

P. 5795