ATTORNEY GENERAL OF TEXAS 

GREG ABBOTT 

The Honorable G.A. Maffett, III 

Wharton County Attorney 

309 East Milam, Suite 500 

Wharton, Texas 77488 

Dear Mr. Maffett: 

April 7, 2009 

Opinion No. GA-0703 

Re: Authority of a commissioners court to remove fencing 

located within a county right-of-way (RQ-0749-GA) 

You ask whether a county has the "authority to remove fencing located within a county road 

right-of-way that the Commissioners Court determines interferes with the safety and transportation 

of the public[.]"l You describe the nature of the fence at issue as dangerous and tell us that the 

"Commissioners Court determined the fence obstructed the public's ability to safely travel and 

ordered the fence removed .... " Request Letter at 3; see id. (attached Order, finding that "fence is 

a hazard and constitutes an obstruction to the public's safety, use and transportation" of the county 

road). 

The Legislature has granted commissioners courts authority to "exercise general control over 

all roads, highways, and bridges in the county." TEx. TRANSP. CODE ANN. § 251.016 (Vernon SUpp. 

2008). In addition, section 251.003 of the Transportation Code authorizes a commissioners court 

to "make and enforce all necessary rules and orders for the ... maintenance of public roads." ld. 

§ 251.003( a)(1 ) (Vernon 1999). With respectto this general authority, the Texas Supreme Court has 

stated that the "Legislature imposed on [county commissioners courts] a duty to make the roadways 

safe for public travel." City of San Antonio v. City of Boerne, 111 S.W.3d 22, 31-32 (Tex. 2003) 

(construing statutory predecessor to section 251.0 16). The Transportation Code further provides that 

a public road of all classes must "be clear of all obstructions." ld. § 251.008(1). 

Based on the authority found in the Transportation Code, this office has previously concluded 

that a county commissioners court may remove or order the removal from a county road right-of-way 

objects that create a safety hazard to the public. See Tex. Att'y Gen. Op. Nos. GA-0430 (2006) at 

3-4 (abandoned mobile home); JM-1241 (1990) at 2 (trees or shrubs); M-534 (1969) at 4 

(obstruction). The determination of whether a particular item creates a public safety hazard is a fact 

determination for the commissioners court to make in the first instance, subject to judicial review. 

See Tex. Att'y Gen. Op. No. GA-0693 (2009) at 1 (concluding question whether mailboxes create 

a public safety hazard is a fact question not appropriate for the opinion process); Request Letter 

(attached Order, finding that "fence is a hazard and constitutes an obstruction to the public's safety, 

use and transportation" of the county road). 

lSee Request Letter at 1 (available at www.texasattomeygeneral.gov). 
The Honorable G.A. Maffett, III - Page 2 (GA-0703) 

SUMMARY 

A county commissioners court has authority, subject to 

judicial review, to remove from a county road right-of-way objects 

that create a safety hazard to the public. 

ANDREW WEBER 

First Assistant Attorney General 

JONATHAN K. FRELS 

Deputy Attorney General for Legal Counsel 

NANCY S. FULLER 

Chair, Opinion Committee 

Charlotte M. Harper 

Attorney General of Texas 

Assistant Attorney General, Opinion Committee