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: Authorityofa commissioners courttoremove fencing located within a county right-of-way (RQ-0749-GA)

You ask whether a county has the "authorityto remove fencing located within a county road right-of-way that the Commissioners Court determines interferes with the safety and transportation ofthe public[.]"l You describe the nature ofthe 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" ofthe county road). The Legislature has granted commissioners courts authorityto "exercise general control over all roads, highways, andbridges inthe county." 

### TEx. TRANSP. CODE ANN. 

### § 251.016 (Vernon SUpp. 2008). In addition, section 251.003 ofthe Transportation Code authorizes a commissioners court to "make and enforce all necessary rules and orders for the
... maintenance ofpublic roads." 

### ld. § 251.003(a)(1) (Vernon 1999). Withrespecttothis general authority, the Texas Supreme Courthas stated thatthe "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 statutorypredecessorto section251.0 16). TheTransportation Code furtherprovides that a public road ofall classes must "be clear ofall obstructions." 

### ld. 

### § 251.008(1). Basedonthe authorityfound inthe TransportationCode, this office haspreviouslyconcluded that a county commissioners courtmayremove ororderthe removal from a countyroadright-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 ofwhether a particular item creates a public safety hazard is a fact determination for the commissioners court to make in the first instance, subject tojudicial 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 obstructionto the public's safety, use and transportation" ofthe 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 ofTexas

Assistant Attorney General, Opinion Committee