Honorable Tom Maness 

Criminal District Attorney 

P. 0. Box 2553 

Beaumont, Texas 77704 

Opinion No. m-728 

RC2: Whether a county may abandon 

a neighborhood road without replacing it 

Dear Mr. Meness: 

You ask about the authority of the Commissioners Court of 

Jefferson County to abandon a particular road without replacing it. 

As you describe the situation: 

YOlU 

[A]t least eight landowners and the county commissioner in Precinct 3 in Jefferson County, Texas 

are interested in abandoning Atwood Road, a deadend road which lies entirely ecross land belonging 

to Mr. Fontenot. The road is not used by any 

substatitial segment of the general public except 

those persons living along it [the Fontenot 

family], and the road does not connect two or more 

county roads. Atwood Road is not maintained by the 

county but voluntarily by Mr. Fontenot who wants 

the county to abandon the road; there are 

allegations that the road should never have been 

included in the county road system, and there is no 

need to replace Atwood Road if it is abandoned. 

question is: 

Must the county replace Atwood Road before 

discontinuing it pursuant to section 2.002(a)(l)(A) 

of the County Road and Bridge Act? 

The County Road and Bridge Act, article 6702-1, V.T.C.S., we8 

enacted in 1983, Acts 1983, 68th Leg., ch. 288, at 1431. es an act 

"relating to a revision of the laws concerning county roads and 

bridges" and providing penalties. Its provisions are derivative of 

many statutes of long standing that the enactment repealed. Id. 82, 

at 1526. See also Acts 1984, 68th Leg., 2d C.S., ch. 8, §l,t 29 

(ratifying repeal). Cf. Porter v. Johnson, 140 S.W. 469 (Tex. Civ. 

APP. - Dallas 1911, no writ). 

p. 3387 
Honorable Tom Manes8 - Page 2 (JM-728) 

Section 2.002(a) of the new statute -- derived from expressly 

repealed article 6703 -- provides: 

Sec. 2.002 (a) The Commissioners court shell: 

(1) order that public roads be laid out. 

opened, discontinued or altered when necessary 

except that: 

(A) a public road may not be discontinued 

until a new road is reedy to replace it. . . . 

(Emphasis added). 

The power end authority of the commissioners court of a county to 

abandon or discontinue recognition of e road as a public road is 

distinct from its authority to close a road. In Meyer v. Galveston H. 

6 S.A. Railway Co., 50 S.W.2d 268, 273 (Tex. Corn''' App. 1932), 

holding approved, the court said, citing Robison v. Whaley Farm 

Corporation, 37 S.W.2d 714 (Tex.), reh'g denied, 40 S.W.2d 52 (Tex. 

1931): 

The authority of the Commissioners' Court to cease 

to maintain a road, previously maintained es a 

Dublic road, end abandon it as such. is announced 

in Robison -v. Whaley Farm Corporaiion (citation 

omitted). . . . The Commissioners' Court could 

eliminate the public character of this roadway, 

but it could not impair the rights which had been 

acquired by private citizens to "se it as 

such. . . . 

Discussions regarding the "discontinuance" of roads are sometimes 

confused by a failure to distinguish between the authority of a 

commissioners court to abandon rights of a public character in an 

existing roadway, end its ability to extinguish private rights that 

may have arisen in the "se of the roadway. See Smith County v. 

Thornton, 726 S.W.2d 2 (Tex. 1986); Attorney General Opinion V-975 

(1949). 

From the information you have furnished us, it appears this road 

was declared to be a public road in 1973. Inasmuch es the road has 

never connected with other roads but has always existed only upon the 

landholder's property (terminating in a dead-end), the 1973 order 

of the commissioners court declaring it to be a public road was 

apparently intended to make it a "neighborhood road" within the 

meaning of former article 6711, V.T.C.S., now section 2.006 of article 

6702-l. V.T.C.S. 

The opinion process of this office is not designed or equipped to 

resolve disputed questions of fact. This opinion assumes (but does 

p. 3388 
Honorable Tom Manes8 - Page 3 (JM-728) 

not hold) that this road acquired a public character es a neighborhood 

road in 1973, and that the public acquired an easement to use the way 

as a public thoroughfare, but not the fee title thereto. It also 

assumes that the commissioners court does not now intend to forbid use 

of the road (&. to close it), but intends merely to discontinue 

recognition of it as a county roadway for maintenance and supervisory 

purposes. Cf. MacFarlane v. Davis, 147 S.W.2d 528 (Tex. Civ. App. - 

Beaumont 19Kno writ). 

Confusion also arises in connection with the "discontinuance" of 

roads because statutes and courts sometimes use the word in two 

different senses. Cf. Attorney General Opinion C-752 (1966). 

Sometimes, as in the Meyer case noted above, the words "abandonment" 

or "discontinuance" are used in discussions of roads to signify a 

termination of county responsibility for the upkeep, care, and 

supervision of the roadway. At other times, the words are used to 

indicate the act of terminating the use of the roadway. i.e., closing 

it to traffic. See C yton v. Thacker.474 S.W.2d 570 (Tex. Civ. App. 

- Dallas 1971, wx ref d n.r.e.); McFarlane v. Davis, supra. 

As set out above, the 1983 County Road and Bridge Act states that 

"a public road may not be discontinued until a new road is ready to 

replace it." Before the 1983 enactment, the applicable statute 

(former article 6703. V.T.C.S.) read in part: 

No part of a public road shall be discontinued 

until a new road is first built connecting the 

parrs not discontinued. (Emphasis added). 

The 1983 legislative revision was intended to be non-substantive, 

and we do not think the statutory law regarding "discontinued roads" 

was changed in 1983. The entire 1983 enactment was reenacted by 

Senate Bill No. 24 in a 1984 special session of the legisiature, es 

the bill analysis explains: 

Most of the laws relating to county roads and 

bridges were enacted in the 1920s and 1930s. The 

1983 session of the legislature reenacted all of 

these statutes, without substantive changes, as 

the County Road and Bridge Act. Recently a 

question has arisen as to the adequacy of the 

title under which the County Road and Bridge Act 

was enacted in 1983. Because of these questions, 

the entire act has been reintroduced under a more 

descriptive title. This will insure the act's 

constirutionality. 

Bill Analysis to S.B. No. 24, prepared for Transportation Committee, 

filed in Bill File to S.B. No. 24, Legislative Reference Library. 

p. 3389 
Honorable Tom Meness - Page 4 (JM-728) 

The purpose of the provision restricting the "discontinuance" of 

pert of a road "until e new road is first built connecting the parts 

not discontinued" (now, "until a new road is reedy to replace it") 

apparently was, end still is. meant to essure that travelers starting 

a trip along e county road (and unewere that e parr of it may be 

impassable) will not find themselves et a deed-end after a pert of the 

trip, unable to proceed to their destination by en alternate route. 

See Attorney General Opinion M-633 (1970). - 

Inasmuch as the Commissioners Court of Jefferson County does not 

intend to close part of the road to traffic, es we understand the 

situation, but, rather, intends to discontinue county maintenance 

end supervision of the road in its entirety, the proscription of 

subsection 2.002(a)(l)(A) of the County Road end Bridge Act is not 

applicable. The county need not replace Atwood Road before 

discontinuing it es a county road. 

SUMMARY 

The statutory provision that a commissioners 

court may not discontinue a public road until a 

new road is reedy to replace it is not applicable 

where the commissioners court does not intend to 

close a pert of a neighborhood road to traffic but 

instead intends to discontinue county maintenance 

end supervision of the road in its entirety. 

LjzlJh 

Attorney General of Texas 

JACK HIGHTOWER 

First Aseistant Attorney General 

MARY KELLER 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAKLEY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Bruce Youngblood 

Assistent Attorney General 

p. 3390