## 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 tothe requirementr ofArticle 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 anaffirmative vote of 3 to Ior doer the requirement of theunanimous consent of all Comrnieaioner’a elected stated inArticle 6703 V.A.T.S. apply to thio petition? ” Article 6705 requires a petition andnotice for action~a(1)to build a new road, (2) to discontinue an original road, and (3) to change or alter the course ofa 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 uponafull inveetieation ofthe 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 thepart0 notdiscontinued;

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

andno entire firat or second claer road ahall be diecontinuedexcept uponvacation or non-use for a period ofthree yearr. Said court dhall leaume andhave control ofthe streets andalleya inall cities andincorporated towns in Texas which have nodefacto, [sic] municipal government in the active discharge oftheir official duties. ” **We** believe thatArticle 6703. like Article 6705, contemplates three separate and distinct actions --building, altering anddiscontinuing 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 thetwo concept8 are independent. Therefore, it ia our opinion that a commissionera court may grant a petition to discontinue a public road ona lees thanunanimous vote provided that: (I)A new road has been built connecting theparts not discontinued; (2) Ifa 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 ofthe commissioners court is not required to dincontinue a public road provided thatanew road has been built connecting the partr not discontinued; there has been a vacation or non-use for a period ofthree 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 3m-166)

APPftQmD:

Opinion Committee

p. 766