Who can remove an abandoned mobile home from a Texas county road?

TX AG Opinion GA-0430: How can a county remove an abandoned mobile home from a road right-of-way?

Plain-English summary

Two mobile homes had been abandoned on the right-of-way of a county road in San Jacinto County, creating a possible safety hazard. The county's criminal district attorney asked the Attorney General whether a constable or county commissioner had the authority to remove them, pointing to Transportation Code section 545.3051, and whether that statute limited the county's liability. The answer in 2006 had two parts.

Section 545.3051 lets an "authority or a law enforcement agency" (which includes a constable) remove "personal property" that blocks a roadway or endangers public safety, and it shields the agency from most liability for the removal. But "personal property" under that statute is tied to the term "vehicle," and the Transportation Code's definition of "vehicle" in chapter 541 expressly excludes "manufactured housing." A mobile home is manufactured housing. So the Attorney General concluded a manufactured home is not a "vehicle" and not "personal property" within section 545.3051, which means a constable could not use that statute to remove the abandoned homes.

That did not leave the county without a remedy. Recognizing that the real concern was the safety hazard, the opinion pointed to the commissioners court's "general control over all roads, highways, and bridges in the county" and its statutory duty to keep all classes of county roads free from obstructions. A county commissioners court could conclude that abandoned manufactured homes in a road right-of-way are an obstruction affecting public safety and transportation, and order them removed on that basis. As for liability, because section 545.3051 did not apply, its liability protection did not either; the opinion said any potential liability for failing to remove the homes would be governed by the Texas Tort Claims Act, and it declined to opine on the county's liability in any particular case because that depends on facts.

Currency note

This opinion was issued in 2006. 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.

The Transportation Code provisions on roadway removal, county road control, and obstructions, the manufactured-housing definitions in chapter 1201 of the Occupations Code, and the Texas Tort Claims Act have all been subject to amendment since 2006. Anyone dealing with an abandoned manufactured home in a road right-of-way today should check the current statutes, not rely on this 2006 opinion.

Who this opinion affected (as of 2006)

County constables and law enforcement: The opinion told constables that section 545.3051's roadway personal-property removal authority did not reach abandoned manufactured homes, so they could not rely on that statute to remove them.

County commissioners courts: The opinion explained that a commissioners court could order an abandoned manufactured home removed from a county road right-of-way under its general control over county roads and its duty to keep them free of obstructions.

Counties weighing liability: The opinion told counties that section 545.3051's liability shield did not apply to manufactured-home removal, so any liability would fall under the Texas Tort Claims Act, with the outcome depending on the facts.

Common questions

Could a constable use the roadway-removal statute to clear an abandoned mobile home?
No. According to the opinion, section 545.3051 covers "personal property" defined through the term "vehicle," and the Transportation Code's vehicle definition excludes manufactured housing, so a constable could not use it to remove a manufactured home.

Then who could remove the abandoned mobile homes?
The opinion concluded the county commissioners court could, using its general control over county roads and its duty to keep them free from obstructions, by treating the homes as an obstruction affecting public safety.

Did the county have liability protection if it left the homes in place?
Not under section 545.3051, which did not apply. The opinion said any potential liability for failing to remove the homes would be addressed by the Texas Tort Claims Act.

Did the Attorney General decide whether the homes were actually abandoned or whether the county would be liable?
No. The opinion noted that whether the homes were abandoned, and the merits of any liability claim, are fact questions the opinion process does not resolve.

Background and statutory framework

Section 545.3051 was added to the Transportation Code in 2003 (Act of May 21, 2003, 78th Leg., ch. 803, § 1, 2003 Tex. Gen. Laws 2355), extending to local law enforcement entities the roadway personal-property removal authority and liability protection previously held only by the Texas Department of Transportation (Tex. Transp. Code Ann. §§ 472.011-.015 (Vernon 1999 & Supp. 2005)). It allows an "authority or a law enforcement agency" to remove "personal property" that blocks a roadway or endangers public safety and shields the agency from liability for the removal unless carried out recklessly or with gross negligence (id. § 545.3051(b), (e)). "Law enforcement agency" includes the Texas Department of Transportation, a municipal police department, a county sheriff, and a constable (id. §§ 201.001, 545.3051), but the statute gives removal authority to a constable, not to a commissioners court or individual commissioner (Fitzgerald v. Advanced Spine Fixation Sys., 996 S.W.2d 864, 865-66 (Tex. 1999)).

"Personal property" under section 545.3051 means a vehicle described by section 545.305, spilled cargo, a hazardous material under 49 U.S.C. § 5102, or a hazardous substance under section 26.263 of the Water Code (Tex. Transp. Code Ann. § 545.3051(a)(3)). Chapter 545 does not define "vehicle," but chapter 541 defines it for the whole subtitle as a "device that can be used to transport or draw persons . . . on a highway," and expressly excludes devices used on rails and "manufactured housing as that term is defined by Chapter 1201, Occupations Code" (id. § 541.201(23); Tex. Occ. Code Ann. § 1201.003(9), (15), (17) (Vernon 2004) (defining mobile home, HUD-code manufactured home, and manufactured home)). Because a manufactured home is excluded from the vehicle definition, the opinion concluded it is not "personal property" under section 545.3051, so a constable is not authorized by that section to remove abandoned manufactured homes.

The opinion then identified separate authority. A commissioners court has "general control over all roads, highways, and bridges in the county" (Tex. Transp. Code Ann. § 251.016) and serves as trustee of the public county roads (Hill Farm, Inc. v. Hill County, 425 S.W.2d 414, 417 (Tex. Civ. App.-Waco 1968), aff'd, 436 S.W.2d 320 (Tex. 1969)). The Texas Supreme Court has read the "general control" language as authorizing county actions related to the duty to protect the public's interest in transportation (City of San Antonio v. City of Boerne, 111 S.W.3d 22, 30 (Tex. 2003) (citing Canales v. Laughlin, 214 S.W.2d 451, 456-57 (Tex. 1948))). The Transportation Code also assigns counties the duty to keep all classes of roads free from obstructions (id. § 251.008(1)), and the office had previously opined a commissioners court may order removal of an obstruction (Tex. Att'y Gen. Op. Nos. M-534 (1969), V-177 (1947)). The opinion concluded the commissioners court could remove the homes as an obstruction. Because section 545.3051 did not apply, the Texas Tort Claims Act (Tex. Civ. Prac. & Rem. Code Ann. ch. 101 (Vernon 2005 & Supp. 2005)) would address any liability, and the opinion declined to opine on county liability in any particular case as a fact question (Tex. Att'y Gen. Op. Nos. GA-0139 (2004), GA-0298 (2005)).

Citations

Statutes:

• Tex. Transp. Code Ann. §§ 201.001, 251.008(1), 251.016, 472.011-.015, 541.201(23), 545.305, 545.3051 (Vernon 1999 & Supp. 2005)
• Tex. Occ. Code Ann. § 1201.003(9), (15), (17) (Vernon 2004)
• Tex. Water Code Ann. § 26.263
• 49 U.S.C. § 5102
• Tex. Civ. Prac. & Rem. Code Ann. ch. 101 (Vernon 2005 & Supp. 2005)

Cases:

• Fitzgerald v. Advanced Spine Fixation Sys., 996 S.W.2d 864, 865-66 (Tex. 1999)
• Hill Farm, Inc. v. Hill County, 425 S.W.2d 414, 417 (Tex. Civ. App.-Waco 1968), aff'd, 436 S.W.2d 320 (Tex. 1969)
• City of San Antonio v. City of Boerne, 111 S.W.3d 22, 30 (Tex. 2003)
• Canales v. Laughlin, 214 S.W.2d 451, 456-57 (Tex. 1948)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0430
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2006/ga0430.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

May 12, 2006

The Honorable Mark E. Price
San Jacinto County Criminal District Attorney
1 State Highway 150, Room 21
Coldspring, Texas 77331

Opinion No. GA-0430

Re: Authority of a county to remove an abandoned mobile home from county right-of-way (RQ-0412-GA)

Dear Mr. Price:

Two mobile homes[1] have been abandoned on the right-of-way of a county road in San Jacinto County (the "County").[2] You inform us that they present a potential safety hazard unless moved and inquire whether a constable or county commissioner has a right or duty to remove them. See Request Letter, supra note 2, at 1. You refer us to the Transportation Code and inquire whether section 545.3051 authorizes the removal of the manufactured homes, see id., and whether it limits liability for personal injury or death.[3] See also TEX. TRANSP. CODE ANN. § 545.3051 (Vernon Supp. 2005).

Section 545.3051 was added to the Transportation Code in 2003. See Act of May 21, 2003, 78th Leg., ch. 803, § 1, 2003 Tex. Gen. Laws 2355. At the time the provision was enacted, only the Texas Department of Transportation was expressly authorized to remove personal property from roadways and was provided liability protection for damage caused by the removal. See SENATE COMM. ON INFRASTRUCTURE DEVELOPMENT & SECURITY, BILL ANALYSIS, Tex. S.B. 165, 78th Leg. R.S. (2003); see also TEX. TRANSP. CODE ANN. §§ 472.011-.015 (Vernon 1999 & Supp. 2005). Section 545.3051 extended the authority to remove personal property from roadways to local law enforcement entities. See TEX. TRANSP. CODE ANN. § 545.3051 (Vernon Supp. 2005). Section 545.3051 also extended the liability protection enjoyed by the Texas Department of Transportation to the local law enforcement entities. See id.

Section 545.3051 provides that an "authority or a law enforcement agency may remove personal property from a roadway or right-of-way if the authority or law enforcement agency determines that the personal property blocks the roadway or endangers public safety." Id. § 545.3051(b). The section also provides that

[n]otwithstanding any other provision of law, an authority or a law enforcement agency is not liable for:

(1) any damage to personal property removed from a roadway or right-of-way under this section, unless the removal is carried out recklessly or in a grossly negligent manner; or

(2) any damage resulting from the failure to exercise the authority granted by this section.

Id. § 545.3051(e). The term "law enforcement agency" includes [the Texas Department of Transportation], see id. § 201.001, a municipal police department, a county sheriff, and a constable. See also id. § 545.3051(2). The plain language of section 545.3051 gives removal authority to a county constable but not to a commissioners court or an individual county commissioner. See Fitzgerald v. Advanced Spine Fixation Sys., 996 S.W.2d 864, 865-66 (Tex. 1999) (court construes a statute by looking to the plain meaning of the statute's language).

Section 545.3051 authorizes the removal of personal property. See TEX. TRANSP. CODE ANN. § 545.3051(3) (Vernon Supp. 2005). "Personal property" is defined as

(A) a vehicle described by Section 545.305;

(B) spilled cargo;

(C) a hazardous material as defined by 49 U.S.C. Section 5102 and its subsequent amendments; or

(D) a hazardous substance as defined by Section 26.263, Water Code.

Id. Section 545.3051 limits the term "vehicle" by reference to section 545.305. See id. § 545.3051(a)(3)(A). Section 545.305 does not expressly define "vehicle" but rather describes the circumstances that allow for the removal of an unlawfully stopped vehicle. See id. § 545.305(a) (Vernon 1999). The abandonment of the manufactured homes about which you inquire likely falls within the circumstances described by section 545.305 if the homes are considered vehicles.[4] See id. § 545.305(a)(5) (authorizing vehicle removal if unattended and an officer believes it to have been abandoned for longer than 48 hours). Thus, we must determine if the manufactured homes are "vehicles" as contemplated by sections 545.305 and 545.3051.

Nowhere in chapter 545 is the term "vehicle" expressly defined. See generally id. ch. 545 (Vernon 1999 & Supp. 2005). Chapter 545 is contained in title 7, subtitle C of the Transportation Code, however, and chapter 541 defines terms for the whole of subtitle C. See id. § 541.201(23) (Vernon Supp. 2005). Under section 541.201(23), the word "vehicle" is defined as a "device that can be used to transport or draw persons . . . on a highway." Id. § 541.201(23) ("In this subtitle . . ."). Section 541.201(23) expressly excludes from the definition "(A) a device exclusively used on stationary rails or tracks; or (B) manufactured housing as that term is defined by Chapter 1201, Occupations Code." Id. Given the clear terms of the applicable statutory definition, we conclude that a manufactured home is not a "vehicle" for purposes of sections 545.305 and 545.3051, and thus is not "personal property" under section 545.3051. A county constable, therefore, is not authorized by section 545.3051 to remove abandoned manufactured homes from county roads or right-of-ways.

Though you inquire specifically only about section 545.3051, it appears your ultimate concern is about the potential danger posed by the abandoned manufactured homes. We find other authority by which a county may remove the abandoned manufactured homes from the right-of-way of a county road. A county commissioners court has "general control over all roads, highways, and bridges in the county." Id. § 251.016. "In the discharge of such duty [a commissioners court is the] trustee[] of the public county roads for the whole public." Hill Farm, Inc. v. Hill County, 425 S.W.2d 414, 417 (Tex. Civ. App.-Waco 1968), aff'd, 436 S.W.2d 320 (Tex. 1969). The "general control" language of the statutory predecessor of section 251.016 has been construed by the Texas Supreme Court as authorizing county actions that are "related to [the county's] duty to protect the public's interest in transportation." City of San Antonio v. City of Boerne, 111 S.W.3d 22, 30 (Tex. 2003) (citing Canales v. Laughlin, 214 S.W.2d 451, 456-57 (Tex. 1948)). Moreover, the Transportation Code assigns a county the duty to keep all classes of roads free from obstructions. See TEX. TRANSP. CODE ANN. § 251.008(1) (Vernon 1999). This office has previously opined that a county commissioners court has the power to order the removal of an obstruction from a county road. See Tex. Att'y Gen. Op. No. M-534 (1969) at 4. We believe that a county commissioners court could conclude that the abandoned manufactured homes in the right-of-way of a county road constitute an obstruction that affects the safety and transportation of the public. See, e.g., Tex. Att'y Gen. Op. No. V-177 (1947) at 2 (stating that "[a]ny narrowing of the road to less than its legal width is an obstruction, and any obstruction that interferes with the road in the sense of making it less convenient for travel is an offense"). Through its general control over county roads and pursuant to its duty to keep all classes of county roads free of obstructions, we believe the County Commissioners Court has sufficient authority to remove the manufactured homes from the county road right-of-way.

You inquire whether there is potential civil liability if the abandoned manufactured homes are not removed and someone is injured or killed. See Supplemental Request Letter, supra note 3, at 1. As a manufactured home is not within the scope of section 545.3051, the liability protection afforded a law enforcement agency under section 545.3051 is not applicable. Absent the specific liability provisions of section 545.3051, we believe the Texas Tort Claims Act would address any potential liability for the County's failure to remove the abandoned manufactured homes. See TEX. CIV. PRAC. & REM. CODE ANN. ch. 101 (Vernon 2005 & Supp. 2005) (Texas Tort Claims Act). Because the merits of any particular lawsuit would be determined by the specific facts involved and because this office does not resolve fact questions, see Tex. Att'y Gen. Op. No. GA-0298 (2005) at 3 (opinion process cannot resolve fact questions), we do not opine on any potential County liability under the Texas Tort Claims Act.

SUMMARY

Under the clear terms of the applicable statutory definition of vehicle, which expressly excludes manufactured housing, a manufactured home is not included within the scope of section 545.3051, Transportation Code. Thus a county constable is not authorized by section 545.3051 to remove abandoned manufactured homes from the right-of-way of a county road. A county commissioners court may order the removal of manufactured homes pursuant to its general control over county roads and its duty to keep county roads free from obstructions. Because section 545.3051 is not applicable, all questions of potential liability would be addressed by the Texas Tort Claims Act.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

BARRY R. MCBEE
First Assistant Attorney General

ELLEN L. WITT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Charlotte M. Harper
Assistant Attorney General, Opinion Committee

Footnotes

1. A mobile home is a structure (i) constructed before June 15, 1976; (ii) built on a permanent chassis; (iii) designed for use as a dwelling with or without a permanent foundation when the structure is connected to the required utilities; (iv) transportable in one or more sections; and (v) [with certain minimum dimensions]. TEX. OCC. CODE ANN. § 1201.003(17) (Vernon 2004). A "HUD-code manufactured home" is a structure with physical characteristics identical to those of a mobile home but that was "constructed on or after June 15, 1976, according to the rules of the United States Department of Housing and Urban Development." Id. § 1201.003(9). Both mobile homes and HUD-code manufactured homes are "manufactured homes." Id. § 1201.003(15). In this opinion, we will use the term manufactured home.

2. Letter from Honorable Mark E. Price, San Jacinto County Criminal District Attorney, to Honorable Greg Abbott, Attorney General of Texas (Nov. 4, 2005) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter].

3. Letter from Honorable Mark E. Price, San Jacinto County Criminal District Attorney, to Honorable Greg Abbott, Attorney General of Texas (Dec. 7, 2005) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Supplemental Request Letter].

4. Whether the manufactured homes have been abandoned is ultimately a fact question for the County. See Tex. Att'y Gen. Op. No. GA-0139 (2004) at 5 (the opinion process does not determine facts).

5. In 1999, section 81.028 of the Local Government Code was significantly amended and this language was moved to the Transportation Code as section 251.016. See Act of April 23, 1999, 76th Leg., R.S., ch. 62, § 13.11(b), 1999 Tex. Gen. Laws 127, 351.