ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

January 22, 2009

The Honorable Robert F. Vititow

Rains County Attorney

220 West Quitman

Post Office Box 1075

Emory, Texas 75440

Dear Mr. Vititow:

Opinion No. GA-0693

Re: Authority of a commissioners court to

remove from county right-of-way structures it

deems to be a safety hazard (RQ-0729-GA)

You inform us that in Rains County, individuals have erected mailboxes "constructed of

various materials including, stone, brick, concrete and sometimes large metal posts" and that, in

some instances, these mailboxes are "adjacent to the paved county roadway or within a few feet of

the paved roadway."l You state that the "commissioners perceive these mailboxes to be a safety

hazard to the general public," and you request an opinion relating to the authority ofa commissioners

court to require landowners to remove hazardous mailboxes from the county road right-of-way and

replace them with others that are easily knocked down when struck by a vehicle. Request Letter

at 1-2.

The Legislature has granted commissioners courts authority to "exercise general control

over all roads, highways, and bridges in the county." TEX. TRANSP. CODE ANN. § 251.016 (Vemon

Supp. 2008). Section 251.003 more specifically authorizes commissioners courts to "make and

enforce all necessary rules and orders for the construction and maintenance of public roads." Id

§ 251.003(a)(I) (Vernon 1999). "By granting commissioners courts general control over the roads,

the Legislature imposed on them a duty to make the roadways safe for public travel." City ofSan

Antonio v. City ofBoerne, 111 S.W.3d 22, 31-32 (Tex. 2003).

Pursuant to this authority, we have previously concluded that a commissioners court may

remove or order the removal of objects in the county road right-of-way that create a safety hazard

to the public. See Tex. Att'y Gen. Op. No. GA-0430 (2006) at 3-4 (allowing commissioners court

to remove abandoned mobile homes in the right-of-way); Tex. Att'y Gen. Op. No. JM-1241 (1990)

at 2 (allowing commissioners court to require the removal oftrees or shrubs that interfere with the

right-of-way). However, whether and to what extent the mailboxes at issue create a hazard to the

public is a fact question not appropriate for the opinion process. Tex. Att'y Gen. Op. No. GA-0620

(2008) at 5. Thus, we are unable to answer whetherthe commissioners court is authorized to remove

or order the removal ofthe specific mailboxes at issue.

ISee Request Letter at 2 (available at www.texasattomeygenera1.gov).
The Honorable Robert F. Vititow - Page 2 (GA-0693)

You also ask about the perimeters ofa county'sright-of-way on a road establishedbyimplied

dedication or prescription. See Request Letter at 2. When a road is established by prescription or

dedication, "the right is not limited to the beaten path used, but includes sufficient land, where

reasonably available, for drainage ditches, repairs, and the convenience of the traveling public."

Allen v. Keeling, 613 S.W.2d253, 254-55 (Tex. 1981) (holding county's prescriptive rights to a road

"extend ... into the eighteen to twenty foot wide bar ditches"). Thus, to the extent that land is

"reasonably available," a county's right-of-way will extend beyond the area traveled. However,

whether and to what extent a public right-of-way has been acquired by dedication or prescription on

a given road is a fact question that cannot be resolved by an opinion. See Linder v. Hill, 691 S.W.2d

590,591 (Tex. 1985); Tex. Att'y Gen. Op. No. GA-0620 (2008) at 5.
The Honorable Robert F. Vititow - Page 3 (GA-0693)

SUMMARY

Pursuant to its general control over all roads, highways, and

bridges in the county, as provided for in section 251.016 of the

TransportationCode, a commissioners courtmayremove or orderthe

removal ofobjects in the countyroad right-of-way that create a safety

hazard to the public. Whether the mailboxes at issue are hazardous

to the public, and can therefore be removed by the commissioners

court, is a fact question not appropriate for the opinion process.

Generally, when a road is established by prescription or

dedication, the right is not limited to the area traveled, but includes

sufficient land, where reasonably available, for drainage ditches,

repairs, and the convenience of the traveling public. However,

whether and to what extent a public right-of-way has been acquired

by dedication o~ prescription is a question of fact that cannot be

decided through the opinion process.

ANDREW WEBER

First Assistant Attorney General

JONATHAN K. FRELS

Deputy Attorney General for Legal Counsel

NANCY S. FULLER

Chair, Opinion Committee

Virginia K. Hoelscher

Assistant Attorney General, Opinion Committee