“HMAlTOX torneyGeneral

**: proms** **cowl Bulkmg**  **0.Box12s48 4uetln.** **lx. 78711.2s4e**  **jl2/47.MSO1 1.x** **010@7+1a7 IkopiU**  **s12147saw**

**P-4 Bm4dwy.**  **Bull4 312**  **44lcock.**

**TX. 7mc14479**  **,An47.5230**

**m N.** **Tsnlh. SW9**  **B CAllen.** **lx 7Mol.lMs**  **512m24!547** 

# TheAttorney General ofTexas

Decenlher 21, 1984

I

Eonorablc MikeDriscoll Rerrir County Attonwy 1001Prceton, Suite WI Rouaton.Texas 7700:! Opinion Ho. JM-262
Re: klaximumbondwhich acounty may require of subdividers for the construction and/or mainretieaceof roadr
DearHr. Driecoll:
Youhave requested an opinion from this office on the following qu&tioa:
What 1; the maxicnm emouht of bond that

. . .

[Harris] Cwnty mayrequire ofsubdividere for the proper construction and/or mainteoance of roads?
Inthe brief preparr,d byyour office, you inform us that your inquiry arises from an apparent conflict among four statutes -- erticles 6626a. 6626a.l. 670:!-1, V.T.C.S.. and the Rarria County RoadLaw, a Specie1 Law,of the Zbirty-third Legislature. Acta 1913, 33rd Leg., Local 6Special Laws, ch. 17, et 64.
Articlea 6626a and6626a.l. twoof thestatutes forming the basis ofyour inquiry, were!repealed in whole by the legisletura during the special sesrioa of 1984. **Act6** 1984. 68th Leg., 2nd C.S., ch. 8, )2(b), et 145. Thelanguage of these articles, however, wasreenacted as aectione 2.401 and.2.402 of the revised County RoadandBridge Act (article 6702-1). Acts 1984. T at 73-78. Consequently, the conflict betveen

‘artlcles 6626e. 626e.l. end the forncr version of sectloo 2.401 of tL! original County Roadsod Bridge Act is oolonger
amatter of concern. Theissue that does r-in for our consideration is whether revised article 6702-l or the iierris County Road Lav controls in this incltancs.
The Harris County Road Law ves enacted by the Thirty-third Legislature pursuan(: to itr authority granted byarticle VIII, section 9of the Texa.rConrtltutiw to pass local laws for the maintenance of public reeds andhi:ghwaya. Special law eoaeted uader this constitutional provieion supersede conflicting general laws. at least with respect tb the county designated by the special law. Bill County v.

p. 1165Honorable Hike Driscoll - **Page** 2 (JM-262)

Bryant 6iiuffman. 16S.U.2d 513 (Tu. 1929). Section 33of the Aerris County RoadLav achowledger thir rule:

The provisions of ,this Act are, and shall be, held and construed ta becumulative ofall Ceneral Laws of thia State, tmthe subjecta treated of in this Act, whennot in conflict therewith. but in case of such conflict this Act &all control as to Rarris County.
Inour opinion. however. where there is noconflict between egeneral and a special lav, or where the special law la rilent ona rubject treated explicitly bythe gene:ral law. the general la? should not be displaced.
Purthemore
, special laws enacted under article VIII. section 9 of the Texas Constitution grent the comissionera court not only control over the maintenance c’fcxiatian uublic roads. but also over the laying out and constructim of new&lic roada by the county as vell. roads Dallas County v. Plownq 91 S.W. 221. 222 (Tu. 1906). Public

are those roedr cst,ablished by the authority of the comissioners court. byprascrl~ption, or dydedication and-acceptance bythe county. Attorney Ceaerrk:LOpinion Jl4-200 (1984) andcasee cited therein. These principles. too. arc incorporated into relevant parts of the Harris County RoadLaw:

Sec. 1. 

### That. stibject to 

### theprovisions of this Act. theComis~~ioners Court of Hart18 County shall have cootrol of all roads, bridges, draiae. ditches, culverts end all vorkr and constructions incident to itr road,, bridges, anddrainage, that have been heretofore! laid out or conetructed, or that meyhereafter 1~:laid out or constructed by Harris County, orundm its direction.
Sec. 2. Subject t.othe provisions of this Act, the Comissioners Cclurt of Harris County shall have the power aad right to adopt such rules and regulations for: (I,) the proper construction aad maintenance of ita wads, bridges and draioage as it maysee proper.
. . . Sec. 3. Whenever any ~1~s. reguletioae or course of procedure la connection with the construction ormaintenance of the roads, bridges, and drain. ofUerria County mayhave been adopted, they shell thereupon bereduced towriting.

. . .

. . . .

‘>.1166Ronorable HikeDriscoll - Pege 3 (JX-262)

Sec. 16. The Comissioaers Court shall have control of all mutters in connection with the construction and maintenance of county roads, bridges and drainage, except such aa it mayfrom time to time, by reeolutiou, delegete to the precinct road supervisor, and than under such rules and regulnt~lcma as it uay prescribe. and subject to **their** rwall at its pleasure.

. . . . Sec. 31-C. In acquiring rights-of-way for roads in Harrio County, the Comissionerc Court shall deterxiue t.b.ewidth of the rlght-of-vay required, and l

stal~:lish the lines andeligmeat of the road. All of the field aoteo of roads so established anddeteruined shall befiled with the 

### Combsloners Cowt and be recorded on the Road Log

### ofRarris County, end **no**expenditures shall be madeby the Commissioners Court upoa any road not carried 011the RoadLog. TheComtissioners Court mayedopt asystem: for carrying roads oathe Road Logvith the required vidth 

### ofthe right-of-vay to be established by the Court. Provided, however, no road shell bc carried **on the**  Road Log or ualntained by the county oa a right-of-vay leas than twenty (20) feet nor more than 600 feet in vidth unless the right-of-uey was laid out or estebliehed on or after Jenuary 1, 1963. No subdivision or p:.at of lands la Anrris **County** outside of incorpcweted cities shall be flied for record by the Cmnty Clerk of Rarrio County, Texan, until such plat or subdivirioa bearr the sigoature of the County Engineer to the effect that the roads; emindicated onthe plat. have uet the requirements of the syatau adopted by the Comisaioeers Cowt pursuant to this Section ae to the width of the :r:Lght-of-vay andhave abase and **surface** of at leac;t 

### twenty(20) feet inwidth with the base and surface meeting the ainiuuu requirements preswibed bythe Coumiasioners Court by order duly altered in the minutes of said court, and that all requireuants of Aarrir County aad 

### theRarris Comty Flood Control District as to drainage have been complied vith.
The Harris County Road Lav does not require real estate subdividers to post abond for either the construction or mintenance of roada in eubdivieions in Ha~:risCounty. Section 9of the lawformerly

p. 1167tlonorable MikeDriscoll - Pageo (JR-262)

llloved **the** comaiesionera court of Rarris County to require abond of contractors for the construction of roads for the county; this provision, however, was repealed la 1979. Acts 1979, 66th Leg., ch. 422. at915. Inany event, **section** 9wee andremains applicable only to roada built **with** county fur.ds - it does aot affect the COaatNCtion and uintenence of roads in subdivisioaa in Barris County that are not built with county fuzis. Moreover, we **are** uneware of any rules or regulations adopted by the county c~issioners requiring bonds frou developers of subdiviaiona **for** such **matters.** Accordingly, we uust resort to the general laws of the atate to answer your question.
Article 6702-l. the County Road **and** Bridge **Act.-wes** revised and reenacted during the special legislative session bf 1984. **Acts** 1984. w, at 44. Sections 2,401(tl:1(7) and2.402(d)(7) of the revised act authorize the coamiaeionera caurt to require bonds for the constNction of roads in subdivisions. The com&rsionero court nay require the owner(a) of the land to bmcdivided or subdivided to post abond

“for the proper construction of the roads and streets affected.” conditioned upoa the **construction** of such roada in accordance with specifications established by the coamiaaioaers court. Id. **at** 75. 78 (to be codlfled as V.T.C,,Ii. srt. 6702-l. H2.40r(d) (7) and 2,402(d)(7), respectively). Thebond under either section “shall be in an amount as uay be determined by the commissioners court not to **exceed the**  estimated cost of constructing

. . . [the] roads or atreete.” Id.
Section 2.401 appliee to all counties in this state except **those** that elect to operate under swtion 2.402. Section 2.402 applies to counties of uore **than** 2.2 milLion inhabitants which elect to operate under this section and to cou:zties contiguous with a county of more then 2.2 uillion population that also elect **to operate**  under this provision. Weare unavere of uhether the Rarris County Coamissioners **Court her**  **elected** to operate under section 2.402; the uaxinum boad acceptable under the County RoadandBridge **Act,** bowever. reuaias the Sm. Therefore, in enaver to your question weconclude that Rarris County nay require subdividers to rubuit a bond for the proper construction **of roads**  in subdlvi8ion6 in Barrio County in an amouat not to exceed the estiuated ewt of construction for such roads and streeta. Weshall novaddress the final issue raised byyour inquiry.
In the brief prepared by your otfice. you argue that the c&ssionera court uey also require subdividers to **post a** uaintenaace bond as acondition ofplat aplwoval or as eprareqaiaite to recording on the county road log. Youcontend that section 31-C of the Rarris County Road Law (quoted abovo:~. when read in conjunction with the language of revised sections ,I.401 and 2.402 of **the** County Roadand Bridge **Act,** iuplicitly l uthor:laca the county to require uaintanance bonda in addition to construction bonds. Alternatively. you **argue**

p. 1168 LIlonorablc HikeDrircoll - Paga5 (J%262)

**that rime**  **acceptance** of rosda on the road log is equivalent 

### to acceptance of such roads for maintenance bythe **county,** amaintenance bond 16 l reasonable condlticm **for** such acceptance. Wedisagras with both contentions. First, we note that tt,c County Road and Bridge Act make6 no provision **for** the acceptance l>fbonds **ensuring** proper maintenance of roada in suhdivi6ions. And, in our opinion, such a bond cannot be implied from **the** language o:[ the act; had the legislature intended **maintenance** bonds to be mquired of subdividers. it would have expressly required such bonda. Second, we believe that maintenance bonds **contravene the**  policy underlying county maintenance of roads. Byrequiring subdividers to post bonds for the proper maintenance of roads, the county would effectlvely **make** theas subdividers under**writers** of work for which the county ia ultimately responsible. The county maynot, in our 0pin:ton. employ this device to assure proper maintenance; there are. hovever, alternatives that Aarria County may lawfully utilize. See, e.fk-, V.T.C.S. arts. 6702-l. 53.102(e)(2) (bond required of lov bidders on improvement **contracts);** 68121 (contracts for improvamenta ,of highways in counties vith 

### overtwo million inhabitants). Finally, ve donot agree that maintenance bonds maybe exacted as prerequiaitsa to recording on the road log or as a prerequisite to plat approv.nl. In your brief you contend that recording on the road log is equivalent to acceptance for county maintenance. The mare filjng 

### of a subdivision plst. however, is imufficient to **constitute:** acceptance of a road for county maintenance. Attorney Gener,k.lOpinion m-200 (1984). Similarly. we believe that mere recordation on the road log la losufficient to justify amaintenance bond, :?artlcularly since the county has at this stage undertaken noobligatitc. tomaintain the roads in question.

The liarrla Comty Comiaaionera Court may require a bond from subdividers for the proper construction of road6 in subdivisions in that county in an amount not to exceed the estimated coat of constructing such roads. The county may not require subdividers to post maintenance bond for such roada.

JIM HATTOX Attorney General of Texas

p. 1169Honorable MikeDriacoll - P#~g;e 6 (JM-262)

TC+lCBEgN First Aaaiatant 

### AttorneyGenc!ral
DAVIDR.RICHAFDS Executive Aaaiatant Attorney General
RICRGILPIN **Chairman. Opinion**  **Committee** Prepared byRick Cilpin **Amiatent Attorney**  **General**
APPROVED: OPINION

COMMITTEE

**Rick** Gilpin. Chalrman Colin Carl **Susan**Garrison TooyGuillory JimMoellinger Jenoifer Riggs NancySutton

p. 1170