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 "adjacentto 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 hazardto the generalpublic," andyourequestanopinionrelatingto the authorityofacommissioners courtto 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. CODEANN. 

### § 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 ofpublic roads." Id § 251.003(a)(I) (Vernon 1999). "By granting commissioners courts general control overthe roads, the Legislature imposed on them a duty to make the roadways safe for public travel." City of San Antonio v. City of Boerne, 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 ofobjects 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 opinionprocess. Tex. Att'y Gen. Op. No. GA-0620 (2008) at 5. Thus, we are unable to answerwhetherthe commissioners courtis authorizedto 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

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Youalso askabouttheperimeters ofa county's right-of-wayon aroadestablishedbyimplied 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 ofthe traveling public." Allen v. Keeling, 613 S.W.2d253, 254-55 (Tex. 1981) (holdingcounty'sprescriptiverights to aroad "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 apublicright-of-wayhas been acquiredby dedication orprescription on a givenroadis a fact questionthat cannotberesolvedby an opinion. SeeLinder

### 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

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### 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, acommissioners courtmayremoveororderthe removal ofobjects inthe countyroadright-of-waythatcreate 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