OFPKE OF THE ATTORNEY GENERAL. STATE OF TEXAS 

JOHN CORNYN 

October 3,200O 

The Honorable James A. Farren 

Randall County Criminal District Attorney 

501 16th Street 

Canyon, Texas 79015 

Opinion No. K-0288 

Re: Authority of a commissioners court to 

contract to repair roads within a municipality 

that belong to a property owners association 

(RQ-0235-K) 

Dear Mr. Farren: 

You have asked this office whether a commissioners court may enter into an interlocal 

agreement with a municipality to repair roads that are within the municipality, but that are private 

and not open to use by the general public. You further state that the county is to be fully reimbursed 

for the cost of such work. Given that the county in question has a population in excess of five 

thousand persons and is therefore not subject to the provisions of article III, section 52fofthe Texas 

Constitution, whether or not the county is reimbursed is immaterial. The commissioners court may 

not enter into such a contract. 

As you explain the matter, the roads in question are within the Village of Timberlake 

Canyon, lying entirely within Randall County.’ The village is, you inform us, a gated community 

incorporated as a Texas municipality. See Request Letter, note 1, at 1. Roads in the village are not 

open to the public. “Only residents of the village and their guests are allowed upon the roads within 

its boundaries, which are owned not by the village but by the Timbercreek Property Owners 

Association, Inc., a Texas non-profit corporation.” Id. 

The commissioners court has entered into an agreement “to sealcoat the roads within the 

village for a sum that would compensate the county in full for all costs incurred for the job.” Id. 

You have advised the commissioners that they were without authority to enter into such a contract. 

We agree. 

The Texas Constitution permits a county to maintain private roads in a single narrowly drawn 

instance. Under article III, section 52f, a county with a population of five thousand or less is 

permitted to construct and maintain private roads if it imposes a reasonable charge for the work. See 

‘See Letter from Honorable James A. Famn, Criminal District Attorney, Randall County, to Opinion 

Committee, Offtce of the Attorney General at 1 (May 23,200O) (on file with Opinion Committee) [hereinafter Request 

Letter]. 
The Honorable James A. Farren - Page 2 (X-0288) 

TEX. CONST. art. III, 3 52f. The population of Randall County, according to the most recent 

decennial census, is 89,673? Accordingly, article III, section 52f does not apply. 

As this office pointed out in Attorney General Opinion JC-0172, “Aside horn the narrow 

authority granted by article III, section 52f of the Texas Constitution, counties are not 

constitutionally or statutorily authorized to construct or maintain private roads.” Tex. Att’y Gen. 

Op. No. JC-0172 (2000) at 2; see also Tex. Att’y Gen. Op. No. JM-334 (1985) at 2 (counties do not 

have general authority to maintain private roads). 

That public labor and materials may be expended only for public purposes is wellestablished. “The County Commissioners are not authorized to permit the use of county labor, 

materials or equipment for other than public use.” Godley Y. Duval County, 361 S.W.Zd 629,630 

(Tex. Civ. App.-San Antonio 1962, no writ). A‘public use” is one available to the public generally, 

not to a restricted set of persons. “To constitute ‘public use’ all persons must have an equal right in 

respect to the property and it must be in common and on the same terms no matter that only a few 

in number may avail themselves ofit.” Exparte Conger, 357 S.W.2d 740,742 (Tex. 1962). Roads 

to which the general public is denied access cannot, therefore, constitute a public use. 

Nor is the analysis changed because the commissioners court seeks to enter into an interlocal 

agreement with the village. Section 791.032 of the Government Code provides: 

With the approval of the governing body of a municipality, a 

local government may enter into an interlocal contract with the 

municipality to finance the construction, improvement, maintenance, 

or repair of streets or alleys in the municipality, including portions of 

the municipality’s streets or alleys that are not an integral part of or 

a connecting link to other roads or highways. 

TEX. GOV’T CODE ANN. 5 791.032 (Vernon Supp. 2000). 

Section 791.032 was added to the Government Code by House Bill 508,76th Legislature.3 

Another part of House Bill 508 amended section 25 1.012 of the Transportation Code to allow the 

commissioners court to “spend county money” for, inter alia, “any construction, improvement, 

maintenance, or repair allowed under Section 791.032, Government Code, if the commissioners 

court finds that the county will receive benefits as a result of the work on the street or alley.” TEX. 

TRANSP. CODE ANN. 5 25 1.012(a)(4) (Vernon Supp. 2000). 

‘1 BUREAU OF THE CENSUS, U.S. DEP’T OF COMMERCE, 1990 CENSUS OF POPULATION: General Population 

Characteristics: Texas 3 (1992) (population of Randall County is 89,673). 

‘See Act of May 26, 1999,76th Leg., R.S., ch. 671, 1999 Tex. Gen. Laws 3243. 
The Honorable James A. Farrcn - Page 3 (X-0288) 

We agree with your suggestion that House Bill 508 may be seen as ‘ra codification”4 of 

Attorney General Opinion JC-0036, in which this office, overruling certain prior opinions, averred 

that counties might expend funds to improve city streets “that are not integral parts of or connecting 

links with county roads or state highways [so long as] any expenditure of county funds for 

improvement to streets unconnected to county roads or state highways serve acounty purpose.” Tex. 

Att’y Gen. Op. No. JC-0036 (1999) at 11. We agree as well with your conclusion that construing 

House Bill 508 to permit such an interlocal agreement as the one contemplated here “would allow 

the county to use the village as a proxy for the private party it cannot deal with directly” and that it 

“is unlikely that the legislature intended such a result when it authorized the interlocal agreements 

contained in the Government and Transportation Codes.” Memorandum, note 4, at 3. 

Nothing in the statutory language, nor in Attorney General Opinion JC-0036, suggests that 

either the opinion or the statute intended to permit agreements by which private roads received a 

public benefit. The concern of both was whether the county could maintain municipal streets and 

alleys that did not connect with county roads. A construction of the statutory language to include 

private roads among those which the county might maintain would violate article III, section 52 of 

the Texas Constitution, which forbids the legislature “to authorize any county, city, town or other 

political corporation or subdivision of the State to grant public money or thing of value in aid 

of, or to any individual, association or company.” TEX. CONST. art III, 4 52(a); see TEX. GOV’T 

CODE ANN. 5 311.021(l) (Vernon 1998) (statutes presumed to be intended to be constitutional). 

Finally, we agree that such an interlocal contract would not serve a county purpose. While 

the decision as to what constitutes a county purpose is ordinarily for the commissioners court to 

make, see Tex. Att’y Gen. Op. No. JC-0036 (1999) at 6, a decision which violated article III, section 

52 would be apriori unreasonable. See Commissioners Court of Titus County v. Agan, 940 S.W.2d 

77,SO (Tex. 1997) (“Ifthe Commissioners Court acts illegally, unreasonably, or arbitrarily, a district 

court may so adjudge.“). 

In a free society, citizens who wish to exclude the public from their property have every right 

to do so. But they do not have the right to use public resources for the upkeep of their property, 

whether that property be their houses, their lawns, or their private streets. Just as the commissioners 

of Upton County could not use county road equipment to scrape off brush from a private lot to 

benefit the landowner, see Exparfe Conger, 357 S.W.2d at 742, so the commissioners of Randall 

County may not authorize the use of county materials and equipment to maintain private roads for 

the benefit of a private association of property owners. 

“See Memorandum from Honorable James A. Farten, Criminal District Attorney, Randall County, to Honorable 

Ted Wood, Randall County Judge at 2 (May 22,200O) (on file with Opinion Committee) [hereinafter Memorandum]. 
The Honorable James A. Farren - Page 4 (~~-0288) 

SUMMARY 

Except in the limited case governed by article III, section 52f 

of the Texas Constitution, a commissioners court may not enter into 

an interlocal agreement with amunicipality to repair roads within the 

municipality which are private and not open to use by the general 

public. 

Attorney General of Texas 

ANDY TAYLOR 

First Assistant Attorney General 

CLARK KENT ERVIN 

Deputy Attorney General - General Counsel 

SUSAN D. GUSKY 

Chair, Opinion Committee 

James E. Tourtelott 

Assistant Attorney General - Opinion Committee