Opening, Closing, Discontinuing And Maintaining County .

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- Opening, closing, abandoning,discontinuing and maintainingcounty roads-ByRobert T. “Bob” BassAllison, Bass & Associates, LLPAustin, Texas 787011Authority  ofCommissioners  Court Make and enforce all reasonable andnecessary rules and orders for theconstruction and maintenance of publicroads except as prohibited by law.—Chapter 251, Transportation Code. Lay out and establish, change anddiscontinue public roads and highways andto exercise general control over all roads,highways, ferries and bridges in theircounties. .—Chapter 251, TransportationCode.2Powers  over  County  Road Open Roado Maintain Road Discontinue Roado Maintenance Only Close Road to Public Useo Remains available for private use Vacate Road Entirelyo Abandonment of all interest to centerline3County Roads-Acquisition of Right of Way1

Additional  Comments  RegardingCommissioners  Court  Authority Individual Commissioner has no authority toestablish a county road-but often does. Roads should be classified as 1st, 2nd or 3rd ClassRoad. (Sec. 251.007 Transportation Code)-butrarely are, or Classification is at odds with factson ground. Court may establish or change status of countyroad-within statutory limitations. (only up) Platting duties do not require acceptance ofdedicated roads in subdivision-common error.4Legislative  Changes  of  1981(Chapter  281,  Trans.  Code) Counties of 50,000 or less under law After 1981, these “small” counties may acquireinterest in roads onlyo By purchase (contract of sale)o By condemnation (eminent domain)o By dedication of landowner in writingo By final judgment of adverse possession underprior law, based on common-law in effect prior to1981.o After 9/1/81, no other means available.5Public  Roads  Belong  toState Even if title is given to County, the road actually isheld in trust for the State. State v. Malone, 168 S.W.2d 292 (1943) “Public” road does not necessarily equal “county”road. County must actually assume responsibility formaintenance of a public road for that road to be acounty road. Maintenance by county equals“county road”. Maintenance by Order or byConduct over time. County is not required to maintain any road, andcan refrain from the assumption of maintenance. Mere dedication does not require maintenance,but is merely an offer until accepted by the county.6County Roads-Acquisition of Right of Way2

A  Public  Road  RemainsA  Public  Roadv A previously County maintained road, or adedicated public road that has not beenaccepted for maintenance by county, maynot be “fenced” by the landowner, but thisright is enforced by the affected parties.v The landowner has no duty to maintain the“public road” however.v Traffic hazards due to poor maintenancemay threaten safety, but County has no rightto repair road.v Mere use by school bus is not enough.7Limitations  Upon  CommissionersCourt  Authority County cannot maintain a private road.o Godley v. Duval County, 361 S.W.2d 629(Tex.App.—San Antonio, 1962). County labor, materials and equipmentcannot be used on private property.o Op. Atty. Gen. JM-200. Vital to have clear authority formaintenance on all roads in Countyinventory.8AIorney  General  OpinionJC- ‐‑0503  May  15,  2002v The County may bring a suit for declaratoryjudgment.v Absent clear basis for determination ofpublic status, a county commissioners courtmay not maintain a road that has not beenofficially established as a public road.v Large counties (over 50,000) may make aself determination of public status, but smallercounties may not make such a determination.9County Roads-Acquisition of Right of Way3

Prescriptive  Rights To establish easement by prescription claimant mustshow that use of alleged servient estate was open,notorious, hostile, adverse, uninterrupted, exclusiveand continuous for period of more than ten years.Davis v. Carriker, 536 S.W. 246. See also Sec.251.059, Texas Transportation Code. (30 Years use,10 of 20 yrs. Public funds) Maintenance by County is some evidence of publicuse, but must be established by clear evidence ofuninterrupted use prior to 1981. Prescriptive right applies to “beaten path” of roadas well as sufficient land to maintain the road, i.e.maintenance easement. Allen v. Keeling, 613 S.W.2d (Tex. 1981)10Implied  Dedication Similar to Prescription, but less demandingstandard, in that it may be based upon:.o acts of landowner (longstanding use bypublic, maintenance by county) thatwould lead to implied dedication.o There should be something more thanmere passive acquiescence, i.e. requestfor maintenance, evidence of countyfunded fencing, county signage,statements of intention, etc.11Express  Dedication Person making dedication must have legalability to do so; fee simple title. Dedication must serve a public purpose. Owner must make an express offer ofdedication, in writing, filed of record. Dedication should identify land burdened,and specific route, length, width of road.Survey not mandatory, but recommended.12County Roads-Acquisition of Right of Way4

Acceptance  of  Dedication Mere dedication imposes no duty tomaintain upon County.o Langford v. Kraft, 498 S.W.2d 42, (Tex.App.—Ft. Worth, 1973), Comm. Ct. v. Jester, 199S.W.2d 1004 (Tex.App.-Dallas, 1948). Acceptance should be reflected in an Orderwhich specifically describes the road to beaccepted for public maintenance.13Purchase  orCondemnation If need for a road is sufficient, theCounty may acquire the right of wayby purchase. Property may beacquired without competitive biddingif a specific sole source. If negotiation for purchase fails, theright-of-way may be condemned.14Chapter  232,  LocalGovernment  Code Plat required if:o Land is outside of municipality.o Divided into two or more parts.o If a subdivision of the tract or lots providesfor streets, alleys, squares, parks, or otherparts of the tract intended to be used bythe public, or for the use of purchasers ofthe lots.o Plat must be filed of record in accord withlaw.15County Roads-Acquisition of Right of Way5

Subdivision  Regulation Mere platting of a “public road” and approvalby Commissioners Curt does not obligate Countyto maintain road. Approval of Plat does not mean acceptance ofroads dedicated in plat. Separate “acceptance” necessary, and thatacceptance should be very specific. Use of term “approval” rather than“acceptance” of plat is recommended.16Subdivision  Regulations County may require standards forroads and drainage, but requireshearings and notice. County may now require a bond toinsure compliance. County may require groundwaterstandards if proper ordinance isalready in place.17Sub- ‐‑StandardSubdivision  Roads Chapter 253 of Transportation Codeprovides for County authority to improveroads in sub-division.o Election of Property Owners required.o Owners can be assessed for initial costs.o But, County thereafter responsible for roadmaintenance.18County Roads-Acquisition of Right of Way6

Opening  a  New  Road Residents of a precinct may apply for a newroad, or a change in an existing road bypetition:o Eight property owners required for new road.o One property owner may request a change of route.o Dedication still required of landowner(s) burdened byroad. Petition should specify beginning and endingpoints of road. Notice of Intent required before filing petitionwith Commissioners Court. 251.052, Transportation Code.19251.054  Laying  out  road  by  Jury  of  View- ‐‑Repealed Chapter 21, Property Code Proceduresnow must be followed after receipt ofPetition:o Disclosure of planned use to ownero Owner may disclose prior appraisalso Bill of Rights Statement by Countyo County Court at Law or District Courtvenueo Special Commissioners appointed byTrial Court to determine damages20A  Petition  AloneInsufficient Must have right-of-way.o Dedication by all affected landowners theroad will burden, in writing, filed of record.o If sufficient need, the county may purchasethe right of way. May use condemnation ifnecessary. Petitioners may be required to improve right-ofway to a minimal standard. Different roads may be of different standards.(Sub-division standards Not Required)21County Roads-Acquisition of Right of Way7

Condemnation  Award Property owner is entitled to compensationfor:o Value of land taken by road, plus.o Decrease in value to “remainder” of landbisected by road.o Award of Damages appealable, butopening of road is not.22Discontinuance  ofMaintenance Commissioners Court may, by Order, cease publicmaintenance of road. No statutory requirements for notice and hearing,but recommended. See Section 251.051 Transportation Code forconditions applicable to “discontinuation” of an“entire” road. (vacated or unused for three years). “Replacement road” language untested by courtcases.23Discontinuance- ‐‑Continued Discontinuance of part of a road is permitted (theback end of a road now enclosed by singlelandowner, for example). (Compton v. Thacker,474 S.W.2d 570) No particular “procedure” required, but notice isrecommended. Road remains open to public, but road no longermaintained by county. Remove road signage,some risk.24County Roads-Acquisition of Right of Way8

Closing  Public  RoadA road established by jury of view must beclosed by notice and hearing. Other typesmay be closed without notice and hearing.(Notice and Hearing recommended) A property owner may not enjoin closureunless:o He owns property which abuts the road, or,o Road being closed provides the “only” access tohis property. Others may seek damages arising fromclosure, but not injunction. 251.058 Transportation Code.25Closing,  Continued Closing excludes only the public, notprivate interests. Road remains on the ground, but thepublic is precluded from use, and theroad may be gated from public afterclosing.26Abandonment  of  Road,per  se Abandoned by law when use so infrequentthat property owner encloses road under“fence” for 20 years. (May not include agate)o Does not include road to cemetery.o Access road necessary to reach adjoiningproperty.27County Roads-Acquisition of Right of Way9

Abandonment  by  FormalAction No procedural guidance by Sec. 251.058.o May be requested by a single person, orby petition of many.o No injunction my issue to stopabandonment, unless by an adjoininglandowner who will lose their only accessto land. Note: others whose property abuts the roadmay have damages for loss of value or“impairment” of access.28Utilities  and  the  CountyRight  of  Wayv Utilities Code provides authority to use public right of way forgas (§181.005), electric (§181.041), telephone (§181.082) andcable television (§181.101) lines.v Water Code provides authority for public and private watersupply corporations to use right of way. (§49.220)v County may require relocation if road is to be widened, orutilities interfere with public use as a roadway.v Remember that §251.151 of Utilities Code requires notice forany excavation by county deeper than 24”, but §251.156 (B)(7) Texas Utilities Code gives County absolute use of first 24” ofsurface for “routine maintenance”. If an incident occurs, it iscritical to fully document by photos, etc, all details.29County  Cannot  Deny  Use  of  Rightof  Way  to  Public  Utilityv County has implied Authority to designate locationof utility so as to preserve primary use of right-of-wayfor road use. If you discover a utility that interfereswith your maintenance, fully document location ofutility line in place, with photographs andmeasurements.v If County requires Utility to relocate a Utility, priornotice to the Utility is required. Timelines differ byUtility.30County Roads-Acquisition of Right of Way10

CaIleguards  and  Gates May authorize cattleguards and gates. Should have established plans andspecifications. May remove non-conforming gates/guards. See Sec. 251.009-251.01031Where  to  Get  MoreInformation Brooks, Vol. 35-36, Texas PracticeSeries Texas Association of Counties512/478-875332Or  Call  Allison,  Bass  &  Associates,LLP- ‐‑Austin,  Tx Contact: Allison, Bass & Associates, LLP1-800-733-0699 Voice512/480-0902 [email protected] e-mailOr on our new web-site:www.allison-bass.com33County Roads-Acquisition of Right of Way11

County Roads-Acquisition of Right of Way 1 - Opening, closing, abandoning, discontinuing and m