### THE ATTORNEY GENERAL OF TEXAS

October 6, 1989

Honorable Pamela K.McKay Opinion No. JM-1105 Kendall County Attorney 204 East SanAntonio 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 askwhether the commissioners court has authority to reclassify a second-class road as aneighborhood 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 ifthe road isreclassified."
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 ofbump gates would allow the owner to run goats on theproperty. You advise that bump gates are opened by nudging the gatewith avehicle's front bumper and that the gate closes behind thevehicle without the necessity of the driver exiting thevehicle. Subsection 2.007(f) of article 6702-1, V.T.C.S., sets forth the conditions under which agatemay beplaced across a county road. Subsection 2.007(f) provides:

The owners of land across which a thirdclass orneighborhood roadmay run,when the right-of-way forthe roadhas been acquired without cost to the county, mav erect sates across the roadwhen necessary, the gates to be not less than 10 feetwide and free of obstructions at the top. (Emphasis added.) Subsection 2.007(a) of article 6702-l provides that the commissioners court shall classify allpublic roads in the county as first-class, second-class, or third-class roads based on the width of the road. Subsection 2.007(c)

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provides that a "first-class or second-class roadmay 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 towhose land there is no public road ormeans 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 inthe application or fixed by the court tobe apublic 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 isno question of the taking ofproperty by a county for the use of an individual, the opinion of the supreme court inMaher v. Lasater, 354 S.W.2d 923 (Tex. 1962), might raise some question about the constitutionality of the neighborhood road statute. See 36D. Brooks, County & Special District Law § 40.9 (TexasPractice 1989).
InMaher, the court stated: Prior to amendment by the Legislature in 1953, Article 6711 authorized Commissioners Courts to declare aroadway to be a public highway only if they deemed 'the road of sufficient public importance.' As sowritten the statute conditioned the taking ofpropertyupon a finding that itwould be dedicated to apublic use. ByActs 53rd Leg., p. 1054, ch. 438, the requirement for a finding that the roadwas ofpublic importance was eliminated, and Commissioners Courts are now authorized to declare a private roadway tobe a public highway ifapplicants therefor wish it tobe done and 'haveno means of access to their lands andpremises.I In so far as the amendment seeks to authorize the taking of private property for private use, it is unconstitutional .andvoid. Maher, suora, at 925.

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You have provided uswith a copy of abrief 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 isadistinct non-numerical classification there isno limitation on reclassifying a second-class road as aneighborhood road.
Aprerequisite to the establishment of a neighborhood road under section 2.006 isthatthere isnomeans of access forthe landowner to apublic road. Under the scenario you have provided there is a second-class road in existence. Therefore, there isnobasis for establishing aneighborhood road in the situation you describe. SUMMARY The commissioners court iswithout authority to reclassify a second-class road as a neighborhood road.

JIM MATTOX Attorney General ofTexas
MARYKELLER **First** Assistant Attorney General LOUMCCREARY Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY Special Assistant Attorney General RICK GILPIN Chairman, Opinion Committee Prepared by Tom G. Davis Assistant Attorney General

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