TEEATI-ORNEXGENJCESAL 

OF -rExAs 

aoarr L BILL Awsl7N. - 78711 

A-- 

November 30, 1973 

The Honorable Jamer P. Allieon 

County Attorney 

Delta County 

Cooper, Texan 

Dear Mr. Allieon: ’ 

Opinion No. H- 166 

Re: The necesrity of a 

unanimour vote of the 

Commieeionerr’ Court 

to discontinue a road 

You have advised that pursuant to the requirementr of Article 6705, 

Vernon’8 Texas Civil Statutea, a petition has been prerented to the 

Commierionera Court requeeting the Court to discontinue a public road. 

You aak: 

“Can the Commiesioner’e Court grant this petition 

and diecontinue a public road by an affirmative vote of 3 

to I or doer the requirement of the unanimous consent of 

all Comrnieaioner’a elected stated in Article 6703 V.A.T.S. 

apply to thio petition? ” 

Article 6705 requires a petition and notice for action~a (1) to build a 

new road, (2) to discontinue an original road, and (3) to change or alter the 

course of a public road. Article 6703 providea: 

“The commireionerr court ehall order the laying out 

and opening of public roadr when necersary. and dircontinue 

or alter any road whenever it ehall be deemed expedient. No 

public roads ehall be altered or changed except to shorten 

the distance from end to end, unlerr the court upon a full 

inveetieation of the proposed change finde that the public 

intereet will be better nerved by making the change: and said 

change ohall be by unanimous coneent of all the commiasionerr 

elected. No part of a public road shall be diecontinued until a 

new road ie firrt built connecting the part0 not discontinued; 

p. 764 
The Honorable James P. Allison. page 2 (H-166) 

and no entire firat or second claer road ahall be diecontinued except upon vacation or non-use for a period 

of three yearr. Said court dhall l eaume and have control of the streets and alleya in all cities and incorporated 

towns in Texas which have no defacto, [sic] municipal 

government in the active discharge of their official duties. ” 

We believe that Article 6703. like Article 6705, contemplates three 

separate and distinct actions --building, altering and discontinuing roads. 

Although the concept of discontinuance arguably could be included in the 

scope of change or alteration, the manner in which the atatute is constructed 

euggee.ta that the two concept8 are independent. 

Therefore, it ia our opinion that a commissionera court may grant a 

petition to discontinue a public road on a lees than unanimous vote provided 

that: (I) A new road has been built connecting the parts not discontinued; 

(2) If a firat or second class road, there has been vacation or non-use for a 

period of three years; and (3) No private rights which might exist above and 

beyond the general public right of paeaage will be impaired. Meyer v. Galveston H. & S.A. Ry. Co., 50 S. W. td 268 (Tex. Comm. 1932, holding app.); 

Compton v. Thacker, 474 S. W. 2d 570 (Tex. Civ.App., Dallacl, 1971, err. ref. 

n. r. e.); Attorney General Opinion No. V-975 (1949). 

SUMMARY 

A unanimous vote of the commissioners court 

is not required to dincontinue a public road provided 

that a new road has been built connecting the partr 

not discontinued; there has been a vacation or non-use 

for a period of three yearn, if the road ir a firat or 

second claes road; and no private rights, above those 

of the general public, will be impaired. 

General of Texas 

p. 765 
. 

The Honorable James P. Alliron, Age 3 m-166) 

APPftQmD: 

Opinion Committee 

p. 766