Mr~.Austin Anderson Opinion No. S-88 Criminal District Attorney Bexar County Re: Necessity to condemn right San Antonio, Texas of access to a future f*eeway, as distinguished from right of access to the exiati,nghighways which the freeDear Mr. Anderson: way will replace.

Jnyour recent opinion request concerning freeways, Article 10850, Vernon’s Civil Statutes, you make the following statements and ask the follewing questions.

“Section 1of the Article is the part with which we are concerned. That section reads as follows:

‘The State Highway Commission or the 

### governing body ofany incorporated city or town, within their respective jurisdictions nxy do any and all things necessary to lay out, acquire, co&- struct, maintain and operate any section or any portion of any StprteHighway or C,ity street as a freeway, and to make any highway or street wit& in their respective jurisdictions a freeway, oxoept that no existing State Highway or City street shall be converted into a freeway except with toe consent ofthe owners ofabutting 

### lands, OTIsythe purchase or condemnation of their right ef access thereto, providing, however, nothing herein shall be construed as requiring the consent of the owners of abutting lands where a State Highway, or City street is constructed, established, or located for the first time as a new way for the use ofvehicular and pedestrian traffic. ‘* “We think that Bexar County is **bound** by **this sb&ub**  **for** the reason that under Article. 6674n, the State Highway Comrnbsionacka throug,h the COIXNniSSiOndi8 CWart.

“The question we would like **8nAwared** is **%b:**

‘ls it legally sufficient to conde~mnthe right ofactes,s in and to the existing highway, 

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e Mr. Austin Anderson, page 2 (S-88)

is it necessary to condemn the right of access inand to the “freeway?“’ “You will notice that Section 1reads in part that:

‘No existing State Highway or City street shall be converted into a freeway except with the consent ofthe owners of abutting lands or by the the purchase or condemnation oftheir right of access thereto, 0aD’ “The antecedent to ‘theretoP seems to be the hey to the proper interpretation. The question resolves itself into this: To what does ‘thereto’ have reference, existing highway or freeway? n

In 1951, the Texas Legislature passed the present Freeway Act, and defined ‘“freeway” in Section 3 thereof. This definition is as follows:

“Section 3. ‘Freeway’ means a state highway or city street in respect towhich the right or easement ofaccess to or from their abutting lands has been acquired inwhole 

### or in part from the owners thereof by the State Highway Commission or the governing body of an incorporated city or town as herein above provided.” Article 1085a, V. C. S.

Such a definition offreeway clearly presupposes the existence ofaccess and egress rights to exist in abutting property owners to thefreeway. Section 1ofArticle 1085a merely authorizes the State Highway Commission or the governing body of any incorporated city or town

. to construct afreeway. Hence, that portion of Section 1which reads “except that no existing stats highway or city street shall be converted into a freeway except with the consent of the owners ofabutting lands, or by the purchase or condemnation of the right of access tlurreto,“clearly authorizes the Highway Commission to do no more than build a freeway, as defined by Section 3.

Itis our opinion that in Section 1ofArticle 1085a, V. C. S..,

“thereto” refers to freeway. Therefore, itwill be necessary for you t+ condemn the right ofaccess in and to the freeway.Mr. Austin Anderson, page 3 (S-88)

SUMMARY Under Section 1ofArticle J085a, V. C. S.. it is necessary to condemn right of access to a future freeway, as distinguished from right ofaccess to the existing highway which the freeway will replace. APPROVED: Yours very tr~uly, Rudy G. Rice JOHN BEN SHEPPERD State Affairs Divis~ion Attorney General C. K. Richards Reviewer Robert S. Trotti First Assistant ’ Milton Richardson Assistant