January 10, 1968

Honorable Glendon Roberts County Attorney Bandera County Courthouse '. Bandera, Texas 78003

Dear Sir: Opinion No. M-189
Re: Right ofCounty Commissioners Court to erect cattle guards in lieu of gates under Article 6704,Vernon's Civil Statutes.
Inyour recent letter to this office, you request our opinion as towhether the County Commissioners Court may erect cattle guards in lieu ofgates under Article 6704,Vernon's Civil Statutes.

Article 6712,Vernon's Civil Statutes, provides as follows: "Theowners of land across which a third class or neighborhood roadmay be run,when the right ofway 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 feetwide and free of obstructions at the top,U Section 4 ofArticle 6704,Vernon's Civil Statutes, provides, in part, as follows:

"TheCommissioners 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, twohundred



### -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,edingFederal Census, may by Jmajority vote of the Commissioners Court thereof authorize the construction ofcattle guards across any orall 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.

"TheCommissioners Court ofany county cominq under the provisions of thisAct is hereby authorized and empowered to construct cattle quards on the first class, second class, and .thirdclass roads of said county and pay for the same out of theRoad and Bridge Funds of said county when in their judgment theybelieve the construction of such cattle guards tobe to thebest 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,)
Inyour Letteryou provide the following two facts: (1, The road involved was acquired atno cost to the county, {2j Bandera County has a population of less than ten thousand IlO,OOOB inhabitants, Upon examination ofArticles 6704 and 6712, there exists a confl,ictas 'betweenthe power of the Commissioners Court to erect cattle guards under Article 6704 and the right of the landowner to erect gates under ,Article6712,Vernon's Civil Statutes, This conflict arises when the landowner has erected orwishes to erect agate and theCommissioners Court wishes to erect a cattle guard.



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

Prior to,,theenactment of the language specifically dealing with cattle guards inArticle 6i04. neither the county nor private individuals were authorized toerect 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, inrecognition of this, the Legislature specifically worded the language inArticle 6704 to repeal that inhibition: Attorney General's Opinion No. O-4695 (1942).

It is our opinionthat when itenacted the language specifically dealing with cattle guards inArticle 6704 in such away as tobe conflicting, inconsistent or repugnant toArticle 6712, itwas the intent of the Legislature to repeal or supersedeArticle 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 6712when it'enacted the aforementioned language in Article 6704. we are of the opinion thatArticle 6704 controis overArticle 6712whenever theCommissioners Court authorizes the erection ofcattle guards pilrsuantto its terms Our statement rests upon the principle that the latest expression of the lawmakers will be given effect. 53Tex.Jur.Zd 149, Statutes, 8 101;

II

. . .

"Astatute does not, ofcourse, abrogate or affect an earlier lawwhere there isno 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 39Tex.Jur. 139, Statutes § 74,
We hold, therefore, thatwhenever theCommissioners Court authorizes the erection of cattle guards, as provided inHon. Glendon Roberts, page 4 (M-189) 1 ,

Article 6704, the right of a landowner to erect gates under Article 6712 is superseded,

Inanswer toyourinquiry, you are respectfully advised that theCommissioners Court has the right to erect cattle guards when, in their judgment, theybelieve the construction of such cattle guards tobe to thebest interest of the citizens of said county, and if there isa conflict. this right is paramount to that of the landowner's right toerect gates.
' SUMMARY

The provisions ofArticle 6704,Vernon's Civil Statutes, control overArticle 67.12, Vernon's Civil Statutes, to the extent ofany conflict between'the power of the Commissioners Court to erect cattle guards and the power ofa landowner to erect gates. Inevent of aconflict, the right of theCommissioners 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 'bestinterest 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



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

W. V: Geppert John Banks Dyer Moore MarkWhite
A. J. CARUBBI. JR. Staff Legal AssIstant



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