.December 5, 1969 

Honorable Larry Miller Opinion No. M-534 

County Attorney 

Hunt county Re: Whether the commisrioners 

Greenville, Texas court has,the powar to Uetermine whether a road ir, 

or is not, a county road; 

has,. or haa not, been abandoned.under Article 6703a; 

andwhether it may order the 

removal of .an obstruction 

from a road, the public nature 

Dear Mr. Miller: of which ia in doubt. 

myour request,for opinion you arrked.the following questiona: 

(1) "Does the CoIPAd8~ioner'a Court have the power 

to datemine whether or not a road is a county 

road? 

(2). Doe8 the Commissioner'o Court have the power to 

determine whether or not.a road has been abandoned under Vernon's.Revised.Civil Statutes, 

Artich 6703111 

(3) Doe8 the Commissioner's Court have the power to 

order the removal of an obstruction from a road 

which has, not beea cloned by a'petition under 

Article 6705 of the Revised Civ,il Statutes of 

Texas? ,! 

A general statement of the law applicable to all three que8- 

tion8 is met out.in the fqllowinq quotation: 

"ALthough the commi+sioners' court, as the active 

governing body of the county, haa jurisdiction 

touching in some respeot.almoat every feature 

of the county’s buainesa, itr power extends only 

to such bu8ineaa of the county as ia entrusted to 

y2542- 
-- 

,’ 

Honorable Larry Miller, page 2 (M-534) 

it by the constitution or statute. In other 

words, the jurisdiction of the commissioners' 

court over the county business is not general 

and all-inclusive, but is limited to matters 

or powers specifically covered by the constitution and statutes. The court does not 

have qene,ral police powers. Moreover, it must 

conform to the statutory mode prescribed for 

the exercise of its~powers." 15 Tex.Jur.Zd, 

261, Counties, Sec. 35, and cases there cited. 

Ai.ticle 2351, Vernon's Civil Statutes, in part provides 

that: 

"Each commissioners court shall: 

. . . 

"3. Lay out and establish, change and dfscontinue public roads and highways. 

. . . 

"6. Exercise general control over all roads, 

highways,, ferries and bridges in their 

countie,s. 

. . . 

"15. Said court shall have all such other 

powers and jurisdiction, and shall perform all such other duties, as are now 

or may hereafter be prescribed by law." 

Article 6703, V.C.S., in part, prwidb that: 

"The commissioners court shall order the laying 

out and opening of public roads when necessary, 

and discontinue or alter any road when it shall 

be deemed expedient...." 

Statutes'immediately following Article 6703, supra, spell out 

the details to be followed thereunder. 

No specific constitutional or statutory provisions have been 

located which would grant-to the cammissioners court the power to 

make the judicial' determination respectinq,the rights of persons 

in real property which would be.involved in the determination of 

whether.any given area.,of land 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 much matters. 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 initial determination its or,der may be 

enforced by appropriate civil or 'criminal actions. 

If the commissioners court determines a public interest in 

such road remaining open to public passage, 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 

.the prior determination by the district court as to the public 

nature of the road. 

Your questions are approached upon the premise that no action 

by the comuissionerm court is anticipated under 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 of public roads”. 

If the commissioners court is uncertain am to the status of 

a road because an individual's private property rights are involved; and such question is of personal rather than of public 

interest, then it is a question with which the commissioners court 

should not concern it elf, 

e 

and a question which this office would 

be forbidden toattemp to answer'by reason 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 commissioners court has the power to make an 

administrative tietermination, but im powerless to make a judicial 

determination, as to whether a road is, or is not, a public road; 

such administrative decision serving only as a foundation upon 

which the comntimmioners court may 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 administrative determination, but is powerless to make a 

judicial determination, as to whether a road has, or has not, been 

abandoned under the terns of Article 6703a, much administrative 

decision serving only as a foundation upon which 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 that whether the commissioners court 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 court has such power, if it is 

not a county road the court ham no much power; any ,such administrative determination by the commissioners court, either way, serves 

only as a foundation upon which the coumissionerm court may base 

its action, or inaction, in the mattes. 

SUMMARY 

The commismioners court may make an administrative 

determination, but is powerless to make a judicial 

determination as to whether a road is, or is not, 

a county road, or whether a road ham, or has not, 

been abandoned under Article 6703a, V.C.S., and whether 

a road is, in fact, a county road determines whether 

the commimaioners court has the power to order the 

removal of an obstruction therefrom. Any adininistra- 

, tive determinations am to such status by the cosunimsioners court serves only am a foundation upon which 

the commissioners court may 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-