“H MAlTOX 

torney General 

: 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 

The Attorney General of Texas 

Decenlher 21, 1984 

I 

Eonorablc Mike Driscoll 

Rerrir County Attonwy 

1001 Prceton, Suite WI 

Rouaton. Texas 7700:! 

Opinion Ho. JM-262 

Re: klaximum bond which a county 

may require of subdividers for 

the construction and/or mainretieace of roadr 

Dear Hr. Driecoll: 

You have requested an opinion from this office on the following 

qu&tioa: 

What 1; the maxicnm emouht of bond that . . . 

[Harris] Cwnty may require of subdividere for the 

proper construction and/or mainteoance of roads? 

In the brief preparr,d by your 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 Road Law, a 

Specie1 Law ,of the Zbirty-third Legislature. Acta 1913, 33rd Leg., 

Local 6 Special Laws, ch. 17, et 64. 

Articlea 6626a and 6626a.l. two of the statutes forming the basis 

of your 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 repealed in whole by the legisletura during the 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. The language of these articles, however, was reenacted 

as aectione 2.401 and. 2.402 of the revised County Road and Bridge Act 

(article 6702-1). Acts 1984. 

T 

at 73-78. Consequently, the 

conflict betveen‘artlcles 6626e. 6 26e.l. end the forncr version of 

sectloo 2.401 of tL! original County Road sod Bridge Act is oo longer 

a matter of concern. The issue 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 by article VIII, section 

9 of the Texa.r Conrtltutiw to pass local laws for the maintenance of 

public reeds and hi: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. 1165 
Honorable Hike Driscoll - Page 2 (JM-262) 

Bryant 6 iiuffman. 16 S.U.2d 513 (Tu. 1929). Section 33 of the Aerris 

County Road Lav achowledger thir rule: 

The provisions of ,this Act are, and shall be, 

held and construed ta be cumulative of all Ceneral 

Laws of thia State, tm the subjecta treated of in 

this Act, when not in conflict therewith. but in 

case of such conflict this Act &all control as to 

Rarris County. 

In our opinion. however. where there is no conflict between e general 

and a special lav, or where the special law la rilent on a rubject 

treated explicitly by the 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’f cxiatian 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. by prascrl~ption, or dy dedication and-acceptance 

by the county. Attorney Ceaerrk:L Opinion Jl4-200 (1984) and casee cited 

therein. These principles. too. arc incorporated into relevant parts 

of the Harris County Road Law: 

Sec. 1. That. stibject to the provisions of 

this Act. the Comis~~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, and drainage, that 

have been heretofore! laid out or conetructed, or 

that mey hereafter 1~: laid out or constructed by 

Harris County, or undm its direction. 

Sec. 2. Subject t.o the 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 may see proper. . . . 

Sec. 3. Whenever any ~1~s. reguletioae or 

course of procedure la connection with the 

construction or maintenance of the roads, bridges, 

and drain. of Uerria County may have been adopted, 

they shell thereupon be reduced to writing. . . . 

. . . . 

‘>. 1166 
Ronorable Hike Driscoll - 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 may from 

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.e width of the rlght-of-vay 

required, and l stal~:lish the lines and eligmeat of 

the road. All of the field aoteo of roads so 

established and deteruined shall be filed with the 

Combsloners Cowt and be recorded on the Road 

Log of Rarris County, end no expenditures shall be 

made by the Commissioners Court upoa any road not 

carried 011 the Road Log. The Comtissioners Court 

may edopt a system: for carrying roads oa the Road 

Log vith the required vidth of the 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; em indicated on the 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 and have a base and 

surface of at leac;t twenty (20) feet in width with 

the base and surface meeting the ainiuuu 

requirements preswibed by the Coumiasioners Court 

by order duly altered in the minutes of said 

court, and that all requireuants of Aarrir County 

aad the Rarris Comty Flood Control District as to 

drainage have been complied vith. 

The Harris County Road Lav does not require real estate subdividers to post a bond for either the construction or mintenance of 

roada in eubdivieions in Ha~:ris County. Section 9 of the law formerly 

p. 1167 
tlonorable Mike Driscoll - Page o (JR-262) 

l lloved the comaiesionera court of Rarris County to require a bond of 

contractors for the construction of roads for the county; this 

provision, however, was repealed la 1979. Ac ts 1979, 66th Leg., ch. 

422. a t 915. In any event, section 9 wee and remains 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) and 2.402(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 bmc divided or subdivided to post a bond 

“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 codlf led as V.T.C,,Ii. srt. 6702-l. H2.40r(d) (7) and 

2,402(d)(7), respectively). The bond 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. We are unavere of uhether the Rarris County Coamissioners 

Court her elected to operate under section 2.402; the uaxinum boad 

acceptable under the County Road and Bridge Act, bowever. reuaias the 

Sm. Therefore, in enaver to your question we conclude 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. We shall nov address the final issue raised by your 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 a condition of plat aplwoval or as e prareqaiaite to recording 

on the county road log. You contend 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 Road and 

Bridge Act, iuplicitly l uthor:laca the county to require uaintanance 

bonda in addition to construction bonds. Alternatively. you argue 

p. 1168 L 
Ilonorablc Hike Drircoll - Paga 5 (J%262) 

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

acceptance of such roads for maintenance by the county, a maintenance 

bond 16 l reasonable condlticm for such acceptance. We disagras with 

both contentions. 

First, we note that tt,c County Road and Bridge Act make6 no 

provision for the acceptance l>f bonds 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 bond a. Second, we believe that maintenance 

bonds contravene the policy underlying county maintenance of roads. 

By requiring subdividers to post bonds for the proper maintenance of 

roads, the county would ef fectlvely make theas subdividers underwriters of work for which the county ia ultimately responsible. The 

county may not, 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 over two 

million inhabitants). Finally, ve do not agree that maintenance bonds 

may be 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.l Opinion m-200 (1984). Similarly. we 

believe that mere recordation on the road log la losufficient to 

justify a maintenance bond, :?artlcularly since the county has at this 

stage undertaken no obligatitc. to maintain 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. 1169 
Honorable Mike Driacoll - P#~g;e 6 (JM-262) 

TC+lCBEgN 

First Aaaiatant Attorney Genc!ral 

DAVID R. RICHAFDS 

Executive Aaaiatant Attorney General 

RICR GILPIN 

Chairman. Opinion Committee 

Prepared by Rick Cilpin 

Amiatent Attorney General 

APPROVED: 

OPINION COMMITTEE 

Rick Gilpin. Chalrman 

Colin Carl 

Susan Garrison 

Tooy Guillory 

Jim Moellinger 

Jenoifer Riggs 

Nancy Sutton 

p. 1170