HonorableTomManess CriminalDistrictAttorney P. 0. Box 2553 Beaumont,Texas 77704 OpinionNo. m-728 RC2:Whether a countymay 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 landbelonging to Mr. Fontenot. The road is not used by any substatitialsegment of the general public except those persons living along it [the Fontenot family], and the road does not connect two or more county roads. AtwoodRoad isnotmaintainedby 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 isno need to replaceAtwoodRoad if it is abandoned. question is:
Must the county replace Atwood Road before discontinuingitpursuant to section 2.002(a)(l)(A) of theCountyRoad and BridgeAct? 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 Its provisions are derivative of many statutes of long standing that the enactment repealed.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. 3387HonorableTomManes8 - Page 2 (JM-728)

Section 2.002(a) of the new statute -- derived from expressly repealedarticle 6703 -- provides:

Sec. 2.002 (a) The Commissionerscourt 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.
. . . (Emphasisadded). The power end authorityof the commissionerscourt of a county to abandon or discontinue recognition of e road as a public road is distinct from its authority to close a road. InMeyer v. GalvestonH. 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 authorityof 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 rightswhich 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 informationyou have furnishedus, it appears this road was declared to be a public road in 1973. Inasmuch es the road has never connectedwith 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 formerarticle 6711,V.T.C.S.,now section 2.006of article 6702-l.V.T.C.S. The opinionprocess of this office isnot designed or equipped to resolve disputed questions of fact. This opinion assumes (but does

p. 3388Honorable TomManes8 - Page 3 (JM-728)

not hold) that thisroad acquireda public characteres a neighborhood road in 1973,and that the public acquired an easement to use theway as a public thoroughfare, but not the fee title thereto. It also assumes that the commissionerscourt doesnot now intend to forbiduse of the road (&. to close it), but intends merely to discontinue recognitionof it as a county roadway formaintenance and supervisory purposes. Cf. MacFarlane v. Davis, 147 S.W.2d 528 (Tex.Civ. App. - Beaumont 19Kno writ). Confusion also arises in connectionwith 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 Cyton v. Thacker.474 S.W.2d 570 (Tex.Civ.App.

- Dallas 1971,wx ref d n.r.e.);McFarlanev. Davis, supra. As set out above, the 1983CountyRoad andBridge 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 (formerarticle 6703.V.T.C.S.) read inpart:

No part of a public road shall be discontinued until a new road is first built connecting the parrs not discontinued. (Emphasisadded). The 1983 legislativerevisionwas intended tobe 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 thebill 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 reintroducedunder a more descriptive title. This will insure the act's constirutionality. Bill Analysis to S.B. No. 24, prepared for TransportationCommittee, filed in Bill File to S.B.No. 24,LegislativeReferenceLibrary.

p. 3389HonorableTomMeness - 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") apparentlywas, 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 themselveset a deed-end after a pert of the trip, unable to proceed to their destinationby en alternate route. SeeAttorney GeneralOpinionM-633 (1970). - Inasmuch as the CommissionersCourt of JeffersonCounty 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 statutoryprovision 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 neighborhoodroad to trafficbut instead intends to discontinue countymaintenance end supervisionof the road in its entirety. 

# LjzlJh

Attorney General of Texas JACKHIGHTOWER FirstAseistantAttorney General
MARY KELLER ExecutiveAssistantAttorneyGeneral JUDGE ZOLLIE STEAKLEY SpecialAssistantAttorney General RICK GILPIN Chairman,OpinionCommittee Preparedby BruceYoungblood AssistentAttorneyGeneral

p. 3390