.December5, 1969

Honorable 

### LarryMiller Opinion

### No.M-534 

### CountyAttorney Hunt county Re: Whether the commisrioners Greenville, Texas court has,the powar to Ueterminewhether a road ir, or is not, a county **road;** has,. **or** haa not, been abandoned.underArticle 6703a; andwhether it may order the removal of .anobstruction from a road, the public nature Dear Mr. Miller: **of** which ia in doubt.
myour request,for opinionyou arrked.thefollowing questiona: (1) "Does the CoIPAd8~ioner'a 

### Courthave the power 

### todatemine whether or not a road is a county road? (2).Doe8 the Commissioner'oCourt have the power to determine whether or not.a road has been abandoned **under** Vernon's.Revised.CivilStatutes, Artich 6703111 (3) Doe8 the Commissioner'sCourt have the power to order the removal of an obstruction 

### froma road which has,

### notbeea clonedby a'petition under Article **6705 of**  **the** Revised Civ,ilStatutes of Texas?,!
A general statement of the law applicable to all three que8- tion8 is 

### metout.in the fqllowinq**quotation:**

"ALthough the commi+sioners'**court,** as the active governing body **of** the county,haa jurisdiction touching in some respeot.almoatevery feature of the county’s buainesa, itr 

### powerextends only to such bu8ineaa of the county as ia entrusted to
**y2542-**--

,’

Honorable Larry Miller, page 2 (M-534)

it by the constitutionor statute. In other words, the jurisdictionof the commissioners' court over the county business is not general and all-inclusive,but is limited to matters or powers specificallycoveredby the constitution and statutes. The court does not have qene,ral

police powers. Moreover, it must conform to the statutorymode prescribed for the exercise of its~powers." 15 Tex.Jur.Zd, 261, Counties, Sec. 35, and cases there cited. Ai.ticle2351, Vernon's Civil Statutes, in part provides that: "Each commissioners court shall:

... "3. Lay out and establish, change and dfscontinuepublic roads and highways.

. . . "6. Exercise general control over all roads, highways,,ferries andbridges in their countie,s.

... "15. Said court shallhave all such other powers and jurisdiction,and shall perform all such other duties, as are now or may hereafter be prescribedby law." Article 6703,V.C.S., in part, prwidb that:
"The commissioners court shall order the laying out and opening of public roadswhen necessary, and discontinue or alter any roadwhen it shall be deemed expedient...." Statutes'immediately following Article 6703, supra, spell out the details to be followed thereunder.
No specific constitutionalor statutoryprovisions have been locatedwhich would grant-to the cammissioners court the power to make the judicial' determinationrespectinq,therights of persons in real property which would be.involved in the determination of whether.any given area.,ofland is,or is not presently burdened with a public right of passage. The district courts have exclusive

-2543--. Honorable Larry Miller, page 3 W-534)

original jurisdiction in muchmatters. Article 1906, Sec. 4, V.C.S. If the commissioners court, acting in the interest of the general public, and not simply as anenforcer of a private right, determines that a road is a public road, then in its exercise of general control over such road, it has the power, and it is duty bound, to order the removal of,an obstruction therefrom..,If the court is correct in its initialdetermination its or,der may be enforced by appropriate civil or 'criminalactions. If the commissioners court determines a public interest in such road remaining open 

### topublicpassage, and ,ia**of** the opinion that such road is a public road,but doem not desire to act at its peril, as the action above set out would require, it may seek .theprior determinationby the district court as to the public nature of the road.
Your questions 

### are approachedupon the premise that no action by the comuissionerm court is anticipatedunder the provisions 

### of Sec. 3 of Article 2351, authorizing the couunissionerm court to "discontinue"public roads,or under Article 6703, et meq, authorising the "laying out and opening 

### ofpublic 

### roads”. If the commissioners court is uncertain am to the status **of** a road because an individual'sprivate property rights are involved; and such question is of personal rather than of public interest, then it is a questionwith which the commissioners court should not concern it elf, e and a question which this office would be forbidden toattemp to answer'byreason of Article 4399, Vernon's Civil Statutes. The questiona are approached solely,.,on the basis of the powers of the conaissioners, court without regard to the property rights of the landowners 'involved.
It is the opinion of this office that the answer to 

### your first question is #at the commissionerscourt has the power to make an administrative tietermination, but im powerless to make a judicial determination, as towhether a road is, or is not, a public road; such administrativedecision serving only as a foundation upon which the comntimmioners courtmay base its action or inaction in the matter. It is the opinion of this office that the answet to your second question is that the conuniaaioners court ham the power to make an administrativedetermination,but is powerless to make a judicial determination, as towhether a road has, or has not, been abandoned under the terns of Article 6703a, much administrative decision serving only as a foundationuponwhich the commissioners court may base its action, or inaction, in the matter.

-2544-Honorable Larry Miller, page 4 (N-534)

**It** is the opinion of this office that the answer to your third question is thatwhether the commissionerscourt does, or does not, have the power to order the removal of an obstruction from a road is determined by whether the road is, or is not, in fact, a county road: if it is a'county road the courthas such power, if it is not a county road the court ham no much power; any ,suchadministrative determination by the commissionerscourt, either way, serves only as a foundation upon which the coumissionerm court may base its action, or inaction, in themattes. SUMMARY The commismioners courtmay make an administrative determination, but is powerless tomake a judicial determination as to whether a road is, or is not, a county road, or whether a roadham, or has not, been abandoned under Article 6703a,V.C.S., and whether a road is, in fact, a county road determineswhether the commimaioners court has thepower to order the removal of an obstruction therefrom. Any adininistra-

, tive determinations am to such statusby the cosunimsioners court serves only am a foundationupon which the commissioners courtmay base any action or inaction thereon.

Prepared by Harold G. Kennedy Assistant Attorney General
APPROVED: OPINION COMMITTEE
Kerns Taylor, Chairman George Xelton, Vice-Chairmen Malcolm Quick 2. T. Portemcue Jack Goodman John Banks MEADE F. GRIFFIN Staff Leqal Assistant

L NOLA WHITE :First,

Assistant -2545-