Ms. Elizabeth C. Jandt

County Attorney Opln
Re:

Dear Ms. Jandt: .I on No. M-339 Whether a county can sell property acquired for county road purposes but neverused without the advertisement and sale atpublic auction as directed by Article 1577, V.C.S.
In your recent request for opinion,you set forth the following facts:
"In about 1963 the County agreed to build a county

road. The roadwas to be an extension of a county road already in existence. There were three property owners involved in the acquiring of the necessary right-of-wayand each agreed to give the property to the County. However, onlyproperty owner number two actually signeda deed conveying to the County a 40 foot right-ofiway along the side of his tract of land. Property owners number one and three never gave a deed to theirpart of the right ofway. "The County has now decided not to build said county road and would like to sell said 40 foot stripback to the original grantee. Said 40 foot strip 1s not connected to the existing county road; the tract owned by property ownernumber one Is between the existing county road and the 40 foot strip in question. Said stripdoes not have any road improvements placed on Itby the County and it has never been used by the county or anyone else for roadpurposes. However, the County of Guadalupe did acquire said strip for the purpose of extending an existing county road."
In connectionwith these facts,you pose this question:

"Can the County of Guadalupe appoint a Special Commissioner by order entered in the minutes of

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the Commlssloners Court and direct that he sell said landdirectly to the original grantee at private sale or must the Special Commlssloner advertise said40 foot strip and sell it at public auction. Does this 40 foot strip con'- stltute abandoned right-of-wayproperty as mentioned In Article 1577, V.A.C.S., having never beenused by the County for road purposes.n The property to which you referwas acquired to build a county road. Itwas conveyed to the county for thispurpose and the lntentlon of the Commlsslonerswas to establish a county road thereon. It, therefore, constitutes county "right-of-wayproperty". Abandonment Is primarily a question of Intent. To constitute "abandoned right-of-way property" for thepurposes of Article 1577, Vernon's Civil Statutes, the better practicewould be for the Commlssloners Court to adopt a resolutionduly entered on the minutes of theCommissioners Court declaring suchright-of-wayproperty Is abandoned.
At the 60th Session ox'Lhe Texas Legislature, two amendments to Article 1577were enacted. Thesewere Amendment to Article 1577 by Acts 1967, 60th Leg.,p. 114, Ch. 48, Sec. 1 and Amendment to Article 1577 by Acts 1967, 60th kg., p. 2071, Ch. 772, Sec. 1.
You will note that the two amendments contain onlyminor differences. It Iswell established thatwhen a session of the Legislatureenacts more than one amendment to a statute the two amendmentswill be construed together and if at all possible, both statuteswill be given effect as one expression of the legislativewill. Southern Pacific v. Sorey 104Tex. 476, 140 S.W. 334 (1911);Colev. State, 106 Tex. 472, 176 S.W. 1036 (1914);Cain v. State, 20 Tex. 355, (1857); 53 Tex. Jur. 2nd 155, STATUTES, Sec. 105. The rule 1s further to the effect thatwhere portions of enactments are In Irreconcilable conflict, thoseportions not In conflictare to be given effect. As t6 the portions In conflict, the latest legislative expression prevails. Comm. App., 1932). Whlttenburg v. Craven, 258 S.W. 52 (Tex.

Those portions of the two amendments to Article 1577 applicable to the question you pose are identical. In essence such amendments provide for the sale of county owned land and establish priorities as to certainproperty. Afterproviding for the sale of county land by public auction after the advertisement thereof, bothamendments contain the following language:

"Provided,however, thatwhere abandonedrlghtof-way property 1s no longerneeded for highway or road purposes and the countydecides to sell said right-of-wayproperty, It shallbe soldwith the followingpriorities: (1) to abutting or adjoining landowners; (2) to the originalgrantors, -1672-Ms. Elizabeth C. Jandt, Page 3 (M-339)

his heirs or assigns of the original tract from whence said right-of-way was conveyed; or (3) at public auction as provided above;" Article 1577, as amended, establishes definitepriorities that are to be followed In the sale by a county of abandoned rlght-ofway property. Suchproperty should be first offered at private sale to abutting or adjoining landowners. Shouldno sale be effected to adjoining and abutting owners, suchproperty should then be offered to the original grantor, his heirs or assigns of the original tract fromwhence said right-of-waywas conveyed. If the property 1snot sold to any of the personshaving the first two priorities, the property should be advertisedand sold at public auction as provided by Article 1577, as amended.
SUMMARY Real property acquired by a county for the purpose of constructing a road constitutes right-of-way property whether a road 1s ever constructedthereon or not. Whether suchproperty has beenabandoned 1s a question of Intent. To constitute "abandoned right-of-way property" for the purposes of Article 1577, V.C.S., the better practice would be for the Commlssloners Court to pass a resolutionentered on the court's minutesdeclaring such property to be abandoned. The two amendments to Article 1577 enacted by the 60th Legislature contain identical language relative to the manner Inwhich county real property 1s to be conveyed and prlorltles that are to be followed regarding certain property,and therefore such language is effective. Whereproperty to be sold by a county 1s abandoned right-of-wayproperty, the priorities established In Article 1577must be followed and suchproperty should firstbe offered at private sale to the adjoining or abutting owners, and secondly to the grantor, his heirs or assigns of the tract of land fromwhence such right-of-wayproperty was orlglnally conveyed. If suchproperty 1s not sold at private sale to those persons having the first two priorities, suchproperty shouldbe advertised and sold at public auction asprovided by Article 1577,as amended./7 y+.$ trulyyours,‘

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Ms. Elizabeth C. Jandt, Page 4 (M-339)

Prepared by Louis 0. Neumann Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman George Kelton,Vice-Chairman Scott Garrison Rex H. White, Jr. Bob Iattlmore Malcolm Smith
W. V. Geppert Staff Legal Assistant

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