January 10, 1968 

Honorable Glendon Roberts 

County Attorney 

Bandera County Courthouse '. 

Bandera, Texas 78003 

Dear Sir: 

Opinion No. M-189 

Re: Right of County Commissioners 

Court to erect cattle guards 

in lieu of gates under Article 6704, Vernon's Civil 

Statutes. 

In your recent letter to this office, you request our 

opinion as to whether the County Commissioners Court may erect 

cattle guards in lieu of gates under Article 6704, Vernon's 

Civil Statutes. 

Article 6712, Vernon's Civil Statutes, provides as 

follows: 

"The owners of land across which a third 

class or neighborhood road may be run, when the 

right of way therefor has been acquired without 

cost to the county, may erect gates across said 

r-d when necessary, said gates to be not less 

than ten feet wide and free of obstructions at 

the top, U 

Section 4 of Article 6704, Vernon's Civil Statutes, 

provides, in part, as follows: 

"The Commissioners Court shall classify 

all public roads in their counties as dollowsn 

* * x * * * * * c f * * 

"4 % Any county in this State containing 

a population of less than ten thousand (10.000) 

inhabitantsI or any county with a population of 

not less than twenty-one thousand, two hundred 

-898- 
Hon. Glendon Roberts, page 2 (M-189) 

and sixty-five (21,265) nor more than twenty-one 

thousand. seven hundred and eighty-five (2x*,7851, 

according to the last prec,eding Federal Census, 

may by J majority vote of the Commissioners Court 

thereof authorize the construction of cattle 

guards across any or all of the first class, 

second~class, or third class roads in said 

county, and such cattle quards shall not be 

classed or considered as obstructions on said 

roads. 

"The Commissioners Court of any county 

cominq under the provisions of this Act is 

hereby authorized and empowered to construct 

cattle quards on the first class, second class, 

and .third class roads of said county and pay for 

the same out of the Road and Bridge Funds of 

said county when in their judgment they believe 

the construction of such cattle guards to be to 

the best interest of the citizens of said county 

As amended Acts 1965,, 59th Leg.; pa 1499. ch. 

650, 0 1, emerg.eff, June 17, 1965." [Emphasis 

added,) 

In your Letter you provide the following two facts: 

(1, The road involved was acquired at no 

cost to the county, 

{2j Bandera County has a population of less 

than ten thousand IlO,OOOB inhabitants, 

Upon examination of Articles 6704 and 6712, there 

exists a confl,ict as 'between the power of the Commissioners Court 

to erect cattle guards under Article 6704 and the right of the 

landowner to erect gates under ,Article 6712, Vernon's Civil 

Statutes, This conflict arises when the landowner has erected 

or wishes to erect a gate and the Commissioners Court wishes 

to erect a cattle guard. 

-899- 
Hon. Glendon Roberts, page 3 (M-189) 

Prior to,,the enactment of the language specifically 

dealing with cattle guards in Article 6i04. neither the county 

nor private individuals were authorized to erect cattle guards. 

Article 6712 concerns the right of a private individual to erect 

a gate. Moreover, cattle guards were deemed to,be road obstructions. Therefore, in recognition of this, the Legislature specifically worded the language in Article 6704 to repeal that inhibition: Attorney General's Opinion No. O-4695 (1942). 

It is our opinionthat when it enacted the language 

specifically dealing with cattle guards in Article 6704 in such 

a way as to be conflicting, inconsistent or repugnant to Article 

6712, it was the intent of the Legislature to repeal or supersede Article 6712 to the extent of that inconsistency or conflict. rirst National Bank v. Lee County Cotton Oil Co., 2'50 

S.W. 313 (Tex.Civ.App. 1923). affirmed First National Bankof 

Giddinqs v. Lee County Cotton Oil Co., 274 S.W. 127 (Tex.Corrm. 

App. 1925). 

Although the Legislature did not expressly repeaY 

Article 6712 when it'enacted the aforementioned language in 

Article 6704. we are of the opinion that Article 6704 controis 

over Article 6712 whenever the Commissioners Court authorizes 

the erection of cattle guards pilrsuant to its terms Our statement rests upon the principle that the latest expression of the 

lawmakers will be given effect. 53 Tex.Jur.Zd 149, Statutes, 

8 101; 

II 

. . . 

"A statute does not, of course, abrogate 

or affect an earlier law where there is no conflict between the two, But an act that is la& 

in point of time controls, repeals or supersedes 

an earlier act. in so far as the two are inconsistent and irreconcilable and cannot both stand 

at the same time . . .Ij 39 Tex.Jur. 139, Statutes 

§ 74, 

We hold, therefore, that whenever the Commissioners 

Court authorizes the erection of cattle guards, as provided in 
Hon. Glendon Roberts, page 4 (M-189) 

1 , 

Article 6704, the right of a landowner to erect gates under 

Article 6712 is superseded, 

In answer to yourinquiry, you are respectfully advised that the Commissioners Court has the right to erect 

cattle guards when, in their judgment, they believe the construction of such cattle guards to be to the best interest of 

the citizens of said county, and if there is a conflict. this 

right is paramount to that of the landowner's right to erect 

gates. 

' SUMMARY 

The provisions of Article 6704, Vernon's 

Civil Statutes, control over Article 67.12, 

Vernon's Civil Statutes, to the extent of any 

conflict between'the power of the Commissioners 

Court to erect cattle guards and the power of a 

landowner to erect gates. In event of a conflict, the right of the Commissioners Court to 

erect cattle guards under Article 6704 is paramount to'the right of a landowner to erect a 

gate under Article 6712, provided that the 

CommissionersCourt believes the construction 

of the cattle guard is to the 'best interest of 

the citizens of the county. 

I. 

k 

truly yours. 

rney General of Texas 

Prepared by Alan Minter 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Hawthorne Phillips, Chairman 

Kerns Taylor. Co-Chairman 

-901- 
. 

Hon. Glendon Roberts. page 5 (M-189) 

W. V: Geppert 

John Banks 

Dyer Moore 

Mark White 

A. J. CARUBBI. JR. 

Staff Legal AssIstant 

-902-.