Can a Texas county take a private subdivision road into its county road system by accepting a gift?

TX AG Opinion GA-0345: Can a county accept a private subdivision road into its road system by gift?

Plain-English summary

Several landowners on a private subdivision road called Lynnwood Lane asked the Waller County Commissioners Court to take their road into the county road system. They offered to give the county an easement over, or a gift deed to, the road, plus all the materials needed to bring it up to standard. The county's criminal district attorney asked the Attorney General whether two donation statutes, Local Government Code section 81.032 (letting a commissioners court accept gifts of money or property for county functions) and Transportation Code section 252.214 (letting a commissioners court that uses the county road superintendent system accept donations of labor, money, or property to build or maintain roads), would let the county accept the road and materials this way, instead of using the Transportation Code procedures that normally apply to bringing private roads into the county system.

The Attorney General said no, those two donation statutes are not a shortcut. The office had previously held that neither section authorizes a commissioners court to accept a donation for a purpose that is inconsistent with the constitution or state law. And a county the size of Waller (about 34,579 people) is not authorized to construct or maintain private roads; only the smallest counties (population 5,000 or less) may do so under a specific constitutional provision, and only if they charge a reasonable fee. So the county could not use section 81.032 or section 252.214 to accept donations for maintaining a road that was still private.

The opinion identified the proper path. Transportation Code chapters 253 and 281 are the exclusive statutory authority for bringing a private road into the Waller County road system. Under chapter 281 (for counties under 50,000), the county may acquire a public interest in a private road by purchase, condemnation, express written dedication, or a court judgment of adverse possession, and a dedication is just an offer the commissioners court must formally accept. Under chapter 253, the county may improve a private subdivision road to county standards if it finds the work necessary for public health, safety, or welfare, after a public hearing and a majority vote of the subdivision's landowners, and may assess the cost against the owners. Only after the road becomes a county road through one of those routes may the county then accept donations to maintain it under section 81.032 or section 252.214.

Currency note

This opinion was issued in 2005. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Who this opinion affected (as of 2005)

County commissioners courts: The opinion held that a commissioners court must bring a private road into the county road system under Transportation Code chapter 253 or 281 before it can accept donations to maintain that road under Local Government Code section 81.032 or Transportation Code section 252.214.

Waller County specifically: It concluded that, as a county over 5,000 in population, Waller County was not authorized to construct or maintain private roads, so the donation statutes could not be used to accept gifts for maintaining a still-private road.

Subdivision landowners: It explained that offering a county an easement, gift deed, and materials does not by itself move a private road into the county system; the road must go through dedication (chapter 281) or county improvement (chapter 253) first.

Common questions

Can a county just accept a gift of a private road and start maintaining it?
No. The opinion concluded the donation statutes do not authorize a commissioners court to accept a gift for a purpose the law does not allow, and a county over 5,000 people is not authorized to maintain private roads.

How does a private road properly become a county road?
The opinion identified two exclusive routes: dedication under Transportation Code chapter 281 (an express, written offer the commissioners court accepts) or improvement under chapter 253 (after a public-health-safety-welfare finding, a public hearing, and a majority vote of the subdivision's landowners).

Do the donation statutes ever apply to a road like this?
Yes, but only after the road is already part of the county system. The opinion said the county may then accept donations to maintain the road under section 81.032 or section 252.214.

Why did the county's population matter?
The opinion noted that only counties of 5,000 or fewer people may construct and maintain private roads (and only for a reasonable charge) under article III, section 52f; larger counties like Waller are not constitutionally or statutorily authorized to do so.

Background and statutory framework

Local Government Code section 81.032 lets a commissioners court accept a gift, grant, donation, bequest, or devise of money or other property for a function conferred by law on the county, and Transportation Code section 252.214 lets a commissioners court that has adopted the chapter 252 road superintendent system accept donations of labor, money, or other property to aid in building or maintaining county roads (Tex. Loc. Gov't Code Ann. § 81.032; Tex. Transp. Code Ann. § 252.214). The office had previously held that neither provision authorizes accepting a donation for purposes inconsistent with the constitution or laws (Tex. Att'y Gen. Op. Nos. JC-0073 (1999), JC-0443 (2001)). Although article III, section 52f permits a county of 5,000 or fewer people to construct and maintain private roads if it imposes a reasonable charge, larger counties are not authorized to do so (Tex. Const. art. III, § 52f; Tex. Att'y Gen. Op. No. JC-0503 (2002)).

Transportation Code chapters 281 and 253 supply the exclusive authority for bringing a private road into the county road system, and the two chapters are cumulative for counties of 50,000 or less (Tex. Att'y Gen. Op. No. GA-0139 (2004)). Chapter 281 lets a county acquire a public interest in a private road only by purchase, condemnation, express dedication, or a court's final judgment of adverse possession; a dedication must be communicated in writing to the commissioners court, an oral dedication is insufficient, and a dedication is a mere offer the commissioners court must accept (Tex. Transp. Code Ann. §§ 281.001, 281.002, 281.003(a), (b)). Chapter 253 lets a commissioners court improve a private subdivision road to county standards if it finds the improvement (defined as construction or repair) necessary for residents' public health, safety, or welfare, after a public hearing and majority vote of the subdivision landowners, and assess the cost against the record owners; a road improved that way becomes a county road the county must maintain (Tex. Transp. Code Ann. §§ 253.001-.011, 253.002, 253.003, 253.005-.007, 253.011).

Citations

Statutes and constitutional provisions:

• Tex. Loc. Gov't Code Ann. § 81.032 (Vernon Supp. 2004-05)
• Tex. Transp. Code Ann. § 252.214 (Vernon 1999)
• Tex. Transp. Code Ann. §§ 281.001, 281.002, 281.003(a), (b) (Vernon 1999)
• Tex. Transp. Code Ann. §§ 253.001-.011, 253.002, 253.003, 253.005-.007, 253.011 (Vernon 1999 & Supp. 2004-05)
• Tex. Const. art. III, § 52f

Attorney General opinions:

• Tex. Att'y Gen. Op. Nos. GA-0139 (2004), JC-0073 (1999), JC-0443 (2001), JC-0503 (2002)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0345
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2005/ga0345.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

August 9, 2005

The Honorable William E. Parham
Waller County Criminal District Attorney
836 Austin Street, Suite 103
Hempstead, Texas 77445

Opinion No. GA-0345

Re: Authority of a county to accept a private road into its county road system under either Local Government Code section 81.032 or Transportation Code section 252.214 (RQ-0316-GA)

Dear Mr. Parham:

You inform us that several landowners in a private subdivision have approached the Waller County Commissioners Court with questions about the county's authority to accept a private road, Lynnwood Lane ("Lynnwood"), into the Waller County road system.[1] Specifically, you tell us that the landowners have agreed to grant Waller County an easement over, or a gift deed to, Lynnwood and would furnish all the materials necessary to upgrade its condition. See Request Letter, supra note 1, at 2. In response to the landowners' proposition, you ask if either Local Government Code section 81.032 or Transportation Code section 252.214 authorizes the commissioners court to accept the interest in Lynnwood along with the materials the landowners have offered to refurbish it as an alternative to the procedures outlined in the Transportation Code that apply to counties and their authority to bring private roads into the county road system. See id.

You have identified two relevant chapters from the Transportation Code. The first, Transportation Code chapter 281, governs a commissioners court's authority to acquire a public interest in a private road in counties with populations of less than 50,000 people, see TEX. TRANSP. CODE ANN. §§ 281.001, .002 (Vernon 1999), which is the case for Waller County.[2] According to this chapter, a county may acquire a public interest in a private road only by purchase, condemnation, express dedication, or a court's final judgment of adverse possession. See id. § 281.002. Here, the landowners wish to donate an interest in the private road to the county by gift deed or easement. See Request Letter, supra note 1, at 2. Under chapter 281 such a donation is accomplished by dedication, which is "an explicit voluntary grant of the use of a private road for public purposes . . . [that] must be communicated in writing to the commissioners court of the county in which the real property is located." TEX. TRANSP. CODE ANN. § 281.003(a) (Vernon 1999). However, "an oral dedication or intent to dedicate by overt act is not sufficient to establish a public interest in a private road under this chapter." Id. § 281.003(b). And "[a] dedication is a mere offer; the commissioners court must accept it for the street or road to become a county road." Tex. Att'y Gen. Op. No. GA-0139 (2004) at 4.

The second chapter, Transportation Code chapter 253, applies generally to counties and governs a commissioners court's authority to improve private subdivision roads. See generally TEX. TRANSP. CODE ANN. §§ 253.001-.011 (Vernon 1999 & Supp. 2004-05).[3] Specifically, it permits a commissioners court to improve a private subdivision road to comply with county standards if the court determines that the improvement[4] is necessary for the county residents' public health, safety, or welfare and to assess the cost of the improvement against the subdivision's record owners, see id. § 253.003 (Vernon Supp. 2004-05). But the commissioners court must hold a public hearing on the issue and obtain approval of a majority vote of the landowners in the subdivision. See id. §§ 253.005-.007 (Vernon 1999 & Supp. 2004-05). A road improved this way is a county road that the county is required to maintain according to county road standards. See id. § 253.011 (Vernon 1999).

You ask about two provisions that authorize commissioners courts to accept donations. Local Government Code section 81.032 permits a commissioners court to "accept a gift, grant, donation, bequest, or devise of money or other property on behalf of the county for the purpose of performing a function conferred by law on the county or a county officer." TEX. LOC. GOV'T CODE ANN. § 81.032 (Vernon Supp. 2004-05). Similar in design, Transportation Code section 252.214 permits a commissioners court that has adopted the chapter 252 county road superintendent system[5] to "accept donations of labor, money, or other property to aid in building or maintaining roads in the county." TEX. TRANSP. CODE ANN. § 252.214 (Vernon 1999).

You suggest that these provisions operate as alternative means of bringing a private road into the county road system:

As the county has the right to acquire a public interest in a private road, and has the right to accept gifts or donations to aid in building or maintaining roads (a function allowed the county), it appears that the commissioners' court may accept the easement or deed along with the materials and accept Lynnwood Lane into the Waller County road maintenance system.

Request Letter, supra note 1, at 3.

This office has previously established that neither Transportation Code section 252.214 nor Local Government Code section 81.032 authorizes a commissioners court to accept a donation for purposes inconsistent with the state constitution or laws. See Tex. Att'y Gen. Op. Nos. JC-0073 (1999) at 2-3 (establishing this for section 252.214); JC-0443 (2001) at 2-3 (establishing this for section 81.032). And though Texas Constitution article III, section 52f permits a county with a population of 5,000 or less to construct and maintain private roads if it imposes a reasonable charge for the work,[6] counties with populations that exceed 5,000, like Waller County, are not constitutionally or statutorily authorized to construct or maintain private roads. See Tex. Att'y Gen. Op. No. JC-0503 (2002) at 2. Thus, these two provisions do not authorize the Waller County Commissioners Court to accept donations for maintaining a private road. Moreover, Transportation Code chapters 253 and 281 operate as the exclusive statutory authority by which Waller County may bring a private road, like Lynnwood, into its county road system. The Waller County Commissioners Court may accept donations for maintaining a road under Transportation Code section 252.214 or Local Government Code section 81.032 only after the road has become a part of the county road system either through a donation of the private road by dedication under Transportation Code chapter 281 or after the county improves the private road under Transportation Code chapter 253.

SUMMARY

The Waller County Commissioners Court must follow the procedures outlined in Transportation Code chapter 253 or 281 to bring a private road located in Waller County into its county road system before it can accept donations for maintaining that road under Local Government Code section 81.032 or Transportation Code section 252.214.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

BARRY R. McBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Daniel C. Bradford
Assistant Attorney General, Opinion Committee

Footnotes

[1] See Letter from Honorable William E. Parham, Waller County Criminal District Attorney, to Honorable Greg Abbott, Texas Attorney General (Feb. 7, 2005) (on file with Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter].

[2] See BUREAU OF CENSUS, U.S. DEPT. OF COMMERCE, 2000 CENSUS OF POPULATION, available at http://quickfacts.census.gov/qfd/states/48/48473.html (Waller County population: 34,579).

[3] Chapters 253 and 281 are cumulative such that a county with a population of 50,000 or less may bring a road into the county road system under either section 253.011 or 281.002. See Tex. Att'y Gen. Op. No. GA-0139 (2004) at 7.

[4] "Improvement" is defined in the chapter as "construction or repair." TEX. TRANSP. CODE ANN. § 253.002 (Vernon 1999).

[5] We assume that by your reference to section 252.214, see Request Letter, supra note 1, at 3, Waller County has adopted the chapter 252, subchapter C road superintendent system such that section 252.214 would apply.

[6] See TEX. CONST. art. III, § 52f.