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 never used 

without the advertisement 

and sale at public 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 road was 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-way and each agreed to give the 

property to the County. However, only property 

owner number two actually signed a 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 their part of 

the right of way. 

"The County has now decided not to build said county 

road and would like to sell said 40 foot strip back 

to the original grantee. Said 40 foot strip 1s not 

connected to the existing county road; the tract 

owned by property owner number one Is between the 

existing county road and the 40 foot strip in question. Said strip does not have any road improvements 

placed on It by the County and it has never been 

used by the county or anyone else for road purposes. 

However, the County of Guadalupe did acquire said 

strip for the purpose of extending an existing 

county road." 

In connection with 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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Ms. Elizabeth C. Jandt, Page 2 (M-339) 

the Commlssloners Court and direct that he sell 

said land directly 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-way property as 

mentioned In Article 1577, V.A.C.S., having 

never been used by the County for road purposes.n 

The property to which you refer was acquired to build a county 

road. It was conveyed to the county for this purpose and the lntentlon of the Commlssloners was to establish a county road thereon. 

It, therefore, constitutes county "right-of-way property". Abandonment Is primarily a question of Intent. To constitute "abandoned 

right-of-way property" for the purposes of Article 1577, Vernon's 

Civil Statutes, the better practice would be for the Commlssloners 

Court to adopt a resolution duly entered on the minutes of the Commissioners Court declaring such right-of-way property Is abandoned. 

At the 60th Session ox' Lhe Texas Legislature, two amendments to 

Article 1577 were enacted. These were 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 only minor differences. 

It Is well established that when a session of the Legislature enacts 

more than one amendment to a statute the two amendments will be 

construed together and if at all possible, both statutes will be 

given effect as one expression of the legislative will. Southern 

Pacific v. Sorey 104 Tex. 476, 140 S.W. 334 (1911); Cole v. S tate, 

106 Tex. 4 72, 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 that where portions of enactments are In 

Irreconcilable conflict, those portions not In conflict are 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 certain property. After providing for the sale of county 

land by public auction after the advertisement thereof, both amendments contain the following language: 

"Provided, however, that where abandoned rlghtof-way property 1s no longer needed for highway 

or road purposes and the county decides to sell 

said right-of-way property, It shall be sold with 

the following priorities: (1) to abutting or adjoining landowners; (2) to the original grantors, 

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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 definite priorities that 

are to be followed In the sale by a county of abandoned rlght-ofway property. Such property should be first offered at private 

sale to abutting or adjoining landowners. Should no sale be 

effected to adjoining and abutting owners, such property should 

then be offered to the original grantor, his heirs or assigns of 

the original tract from whence said right-of-way was conveyed. If 

the property 1s not sold to any of the persons having the first two 

priorities, the property should be advertised and 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 constructed thereon 

or not. Whether such property has been abandoned 

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 resolution entered on 

the court's minutes declaring such property to be 

abandoned. The two amendments to Article 1577 enacted by the 60th Legislature contain identical 

language relative to the manner In which county real 

property 1s to be conveyed and prlorltles that are 

to be followed regarding certain property, and therefore such language is effective. Where property to 

be sold by a county 1s abandoned right-of-way property, 

the priorities established In Article 1577 must be 

followed and such property should first be offered at 

private sale to the adjoining or abutting owners, and 

secondly to the grantor, his heirs or assigns of the 

tract of land from whence such right-of-way property 

was orlglnally conveyed. If such property 1s not 

sold at private sale to those persons having the 

first two priorities, such property should be advertised and sold at public auction as provided by 

Article 1577, as amended. 

/7 

y+.$ truly yours, 
‘. 

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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