### KEN PAXTON
ATTORNEY GENERAL OF TEXAS

The Honorable Jim Keffer Chair, Committee onNatural Resources Texas House ofRepresentatives Post Office Box 2910 Austin, Texas 78768

Dear Representative Keffer: March 28, 2016

OpinionNo. KP-0075

Re: Whether a county that has accepted a public dedication of a right-of-way is obligated to maintain the sidewalks in that right-of-way (RQ-0061°-KP)

Onbehalfofseveral municipal utility districts, you ask whether a countythathas accepted
a public dedication ofa right-of-way is obligated to maintain the sidewalks in that right-of-way. 1 A briefsubmitted with your request provides an illustrative example about a Williamson County (the "County") neighborhood in one such municipal utility district and provides the following information: Thehomes intheneighborhoodare accessedbyseveralpublicroads, includingDallas Drive, a major thoroughfare with sidewalks located withinthe right-of-way. See Letter Briefat 1. "Following the developer's construction of the rights-of-way and other infrastructure in [the neighborhood],the County acceptedthe dedicatedrights-of-waythroughits maintenanceofDallas Drive and other rights-of-way in the subdivision." Id. at 1-2. Recently the County enacted a sidewalk maintenance and repair policy "to address its maintenance and repair of sidewalks throughoutthe County" and the policydid not include Dallas Drive. Id. at 2. The County'spolicy provides that sidewalks not included in the policy that are located in unincorporated areas ofthe County are to be maintainedbythe ownerofthe adjacentproperty. See id. The neighborhoodhas
no mandatory homeowners association through which to levy funds for sidewalk maintenance. See id. And the municipal utility district containing the neighborhood "has never assumed the responsibility orobligation for maintainingpublic rights-of-way, including sidewalks." Id. Thus, "the effect ofthe County's attempt to disclaim maintenance ofpublic sidewalks is to impose that burden on each individual who owns property adjacent to a sidewalk." Id. In this context, you ask "ifa county has accepted the public dedication ofa right-of-way that includes the sidewalks does the county's maintenance obligations ofa subdivision's rights-of-way extend to the adjacent sidewalks and if so can the county at a later date divest itselfofthe obligation to maintain the sidewalks?" Request Letter at 1.

1See Letter from Honorable Jim Keffer, Chair, House Comm. on Nat. Res., to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Oct. 21, 2015), and attached Letter Brief from Kevin Flahive, Armbrust & Brown, PLLC, to Honorable Jim Keffer (Oct. 15, 2015), https://www.texasattomeygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter" and "Letter Brief," respectively).The Honorable Jim Keffer

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A county has only the authority that is expressly granted by the Texas Constitution or statutes orthat which is necessarily implied therefrom. See City of SanAntonio v. City of Boerne, 111 S.W.3d 22, 28 (Tex. 2003). And with respect to road maintenance, a county is statutorily authorized to maintain onlypublic roads. See TEX. TRANSP. CODE§ 251.003(a)(l). Apublic road is a "public road or highway that has been laid out and established according to law and that has not been discontinued." Id § 251.002. But "not all public roads are part ofthe system ofroads maintained by the county." Tex. Att'y Gen. Op. No. GA-0659 (2008) at 3. "Once a public road has been established as a county road, the county has a general duty to maintain it." Id Acounty road is a public road that the commissioners court has accepted into the county's system ofroads. Id at 2. And this office has recognized that a county road may include sidewalks. See Tex. Att'y Gen. Op. No. GA-1013 (2013) at 2 ("In addressing a commissioners court's authority over county roads, we also note that a road is not limited to the area traveled, but includes the whole width of the public right-of-way."); see generally State v. NICO-WFI, LL.C., 384 S.W.3d 818, 821 (Tex. 2012) (recognizing, with respect to a state highway, that the right-of-way ofa street dedicated to the public "includes sidewalks

...,which are apartofthe streetitself') (quotationmarks omitted). Here, the brief states that "the County accepted the dedicated rights-of-way through its maintenance of Dallas Drive and other rights-of-way in the subdivision." Letter Brief at 2. Acceptance maybe express pursuantto a vote by a commissioners court oritmay be implied such
as "where a county makes repairs upon the street, or plats it on official maps." Tex. Att'y Gen. Op. No. JC-0503 (2002) at 4. And while a county has a ministerial duty to approve a plat and authorize its filing under chapter 232 ofthe Local Government Code, the mere approval ofa plat is not sufficient to render a dedicatedpublic road into a county road. See Tex. Att'y Gen. Op. No. GA-0594 (2008) at 3 ("A commissioners court's approval of a plat allows it to be filed in the county records, but it does not convert private roads represented on the plat into county roads or impose on the county a duty to maintain them."); see also TEX. Loe. Gov'TCODE§§ 232.001- .108 (governing county subdivisionregulation). Instead, acceptance ofthe dedicationby a county is required. See generallyTex. Att'y Gen. Op. No. JC-0503 (2002) at 4. Though you suggest that the County has at least impliedly accepted the dedication of these roads into the county road system, the question "whether and to what extent a public right-of-way has been acquired by dedication

... on a given road is a fact question that cannot be resolved" in an attorney general opinion. Tex. Att'y Gen. Op. No. GA-0693 (2009) at 2; see also Tex. Att'y Gen. Op. No. JM-1241 (1990) at 1-2. Thus, we cannot opine on what the County's particular maintenance obligations
are with respect to Dallas Drive. Whether the dedicated right-of-way here was accepted by the County and whether that acceptance includes the sidewalks located in the right-of-way are fact questions beyond the purview ofan attorney general opinion. See Tex. Att'y Gen. Op. No. GA0693 (2009) at 1-2. Yet, because we cannot determine the County's maintenance obligations with respect to Dallas Drive, we also cannot definitively advise you on howthe County might divest itselfofany maintenance obligations it may have. At most we can point you to Transportation Code section 251.051, which sets out the methods by which a county may divest itself of its county roads, including presumably any maintenance obligations accompanying those county roads. See TEX. TRANSP. CODE § 251.051. To the extent any ofthe actions in section 251.051 may be applicable to DallasDrive, the Countymayutilizethemuponcompliancewiththerequirements ofthe statute.The Honorable Jim Keffer

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SUMMARY

Acountyroadmayincludethe sidewalks intheright-of-way. Whethera countyhas accepted a public dedication ofaright-of:-way such that the sidewalks are within the county's maintenance obligations is a question beyond the purview ofan attorney general opm1on.

To the extent any of the actions in Transportation Code section 251.051 may be applicable to Dallas Drive, Williamson Countymay utilize them upon compliance withtherequirements of the statute.

JEFFREY C. MATEER FirstAssistant Attorney General
BRANTLEY STARR Very truly yours,

# ~?~ KEN PAXTON Attorney General ofTexas

DeputyAttorney General for Legal Counsel
VIRGINIAK. HOELSCHER Chair, Opinion Committee
CHARLOTTE M. HARPER AssistantAttorney General, Opinion Committee