Can a Texas county make a landowner remove a hazardous mailbox from the road right-of-way?

TX AG Opinion GA-0693: Can a county remove hazardous mailboxes from a road right-of-way?

Plain-English summary

A county attorney explained that residents in Rains County had built mailboxes out of stone, brick, concrete, and large metal posts, some right next to or within a few feet of the paved county roadway. The commissioners court saw these as a safety hazard and wanted to require landowners to remove them and replace them with breakaway mailboxes that give way when struck by a vehicle. The county asked whether it had that authority, and also asked about how far a county's right-of-way extends on a road created by implied dedication or prescription.

The Attorney General started from the Legislature's grant of general control over all county roads, highways, and bridges, and the more specific authority to make and enforce rules for the construction and maintenance of public roads. The Texas Supreme Court has read that general control as imposing a duty to make the roadways safe for public travel. Building on prior opinions that let a commissioners court clear abandoned mobile homes and overgrown trees or shrubs from a right-of-way, the opinion concluded a commissioners court may remove or order the removal of objects in the right-of-way that create a safety hazard. The catch: whether the particular mailboxes at issue actually create a hazard is a fact question, and AG opinions do not resolve fact questions. So the opinion could not say the county was authorized to remove those specific mailboxes.

On the second question, the opinion explained that a right-of-way established by prescription or dedication is not limited to the beaten path. It includes enough land, where reasonably available, for drainage ditches, repairs, and the convenience of the traveling public, and prescriptive rights can extend into the bar ditches alongside the road. But again, whether and how far a public right-of-way has been acquired on any given road is a fact question outside the opinion process.

Currency note

This opinion was issued in 2009. 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 commissioners court control of county roads have been amended over time. Confirm the current statutes and case law before relying on this analysis.

Who this opinion affected (as of 2009)

Commissioners courts: The opinion confirmed their authority to remove or order removal of objects in a county road right-of-way that create a safety hazard, while leaving the hazard determination for any specific object as a fact question.

Landowners along county roads: The opinion explained that a county's right-of-way could extend beyond the paved path into ditches and adjacent land where reasonably available, but that the precise extent on a given road was a fact question.

Rains County specifically: The opinion declined to say whether the county could remove the particular masonry mailboxes described, because whether they were hazardous was a fact question.

Common questions

Can a county order a hazardous mailbox removed from the right-of-way?
The opinion said a commissioners court may remove or order removal of right-of-way objects that create a public safety hazard, but it could not decide whether the specific mailboxes were hazardous because that is a fact question.

Where does the authority come from?
The opinion relied on the commissioners court's general control over county roads under Transportation Code section 251.016 and its duty to keep roadways safe for public travel.

How wide is a county road right-of-way?
For a road established by prescription or dedication, the opinion explained the right is not limited to the traveled path and includes land, where reasonably available, for ditches, repairs, and the convenience of the traveling public, with the exact extent a fact question.

Background and statutory framework

The Legislature gives commissioners courts general control over all county roads, highways, and bridges (Tex. Transp. Code Ann. § 251.016 (Vernon Supp. 2008)) and the authority to make and enforce rules for the construction and maintenance of public roads (id. § 251.003(a)(1) (Vernon 1999)). That general control carries a duty to make roadways safe for public travel (City of San Antonio v. City of Boerne, 111 S.W.3d 22, 31-32 (Tex. 2003)). Prior opinions applied this authority to abandoned mobile homes and to interfering trees or shrubs in the right-of-way (Tex. Att'y Gen. Op. No. GA-0430 (2006) at 3-4; Tex. Att'y Gen. Op. No. JM-1241 (1990) at 2), while treating whether a specific object is hazardous as a fact question outside the opinion process (Tex. Att'y Gen. Op. No. GA-0620 (2008) at 5). A right-of-way established by prescription or dedication extends beyond the beaten path to include land reasonably available for ditches, repairs, and the convenience of the traveling public (Allen v. Keeling, 613 S.W.2d 253, 254-55 (Tex. 1981)), but whether such a right-of-way has been acquired on a given road is a fact question (Linder v. Hill, 691 S.W.2d 590, 591 (Tex. 1985)).

Citations

Statutes:

• Tex. Transp. Code Ann. § 251.016 (Vernon Supp. 2008)
• Tex. Transp. Code Ann. § 251.003(a)(1) (Vernon 1999)

Cases:

• City of San Antonio v. City of Boerne, 111 S.W.3d 22, 31-32 (Tex. 2003)
• Allen v. Keeling, 613 S.W.2d 253, 254-55 (Tex. 1981)
• Linder v. Hill, 691 S.W.2d 590, 591 (Tex. 1985)
• Tex. Att'y Gen. Op. No. GA-0430 (2006)
• Tex. Att'y Gen. Op. No. JM-1241 (1990)
• Tex. Att'y Gen. Op. No. GA-0620 (2008)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0693
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2009/ga0693.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

January 22, 2009

The Honorable Robert F. Vititow
Rains County Attorney
220 West Quitman
Post Office Box 1075
Emory, Texas 75440

Opinion No. GA-0693

Re: Authority of a commissioners court to remove from county right-of-way structures it deems to be a safety hazard (RQ-0729-GA)

Dear Mr. Vititow:

You inform us that in Rains County, individuals have erected mailboxes "constructed of various materials including, stone, brick, concrete and sometimes large metal posts" and that, in some instances, these mailboxes are "adjacent to the paved county roadway or within a few feet of the paved roadway."[1] You state that the "commissioners perceive these mailboxes to be a safety hazard to the general public," and you request an opinion relating to the authority of a commissioners court to require landowners to remove hazardous mailboxes from the county road right-of-way and replace them with others that are easily knocked down when struck by a vehicle. Request Letter at 1-2.

The Legislature has granted commissioners courts authority to "exercise general control over all roads, highways, and bridges in the county." TEX. TRANSP. CODE ANN. § 251.016 (Vernon Supp. 2008). Section 251.003 more specifically authorizes commissioners courts to "make and enforce all necessary rules and orders for the construction and maintenance of public roads." Id. § 251.003(a)(1) (Vernon 1999). "By granting commissioners courts general control over the roads, the Legislature imposed on them a duty to make the roadways safe for public travel." City of San Antonio v. City of Boerne, 111 S.W.3d 22, 31-32 (Tex. 2003).

Pursuant to this authority, we have previously concluded that a commissioners court may remove or order the removal of objects in the county road right-of-way that create a safety hazard to the public. See Tex. Att'y Gen. Op. No. GA-0430 (2006) at 3-4 (allowing commissioners court to remove abandoned mobile homes in the right-of-way); Tex. Att'y Gen. Op. No. JM-1241 (1990) at 2 (allowing commissioners court to require the removal of trees or shrubs that interfere with the right-of-way). However, whether and to what extent the mailboxes at issue create a hazard to the public is a fact question not appropriate for the opinion process. Tex. Att'y Gen. Op. No. GA-0620 (2008) at 5. Thus, we are unable to answer whether the commissioners court is authorized to remove or order the removal of the specific mailboxes at issue.

You also ask about the perimeters of a county's right-of-way on a road established by implied dedication or prescription. See Request Letter at 2. When a road is established by prescription or dedication, "the right is not limited to the beaten path used, but includes sufficient land, where reasonably available, for drainage ditches, repairs, and the convenience of the traveling public." Allen v. Keeling, 613 S.W.2d 253, 254-55 (Tex. 1981) (holding county's prescriptive rights to a road "extend . . . into the eighteen to twenty foot wide bar ditches"). Thus, to the extent that land is "reasonably available," a county's right-of-way will extend beyond the area traveled. However, whether and to what extent a public right-of-way has been acquired by dedication or prescription on a given road is a fact question that cannot be resolved by an opinion. See Linder v. Hill, 691 S.W.2d 590, 591 (Tex. 1985); Tex. Att'y Gen. Op. No. GA-0620 (2008) at 5.

SUMMARY

Pursuant to its general control over all roads, highways, and bridges in the county, as provided for in section 251.016 of the Transportation Code, a commissioners court may remove or order the removal of objects in the county road right-of-way that create a safety hazard to the public. Whether the mailboxes at issue are hazardous to the public, and can therefore be removed by the commissioners court, is a fact question not appropriate for the opinion process.

Generally, when a road is established by prescription or dedication, the right is not limited to the area traveled, but includes sufficient land, where reasonably available, for drainage ditches, repairs, and the convenience of the traveling public. However, whether and to what extent a public right-of-way has been acquired by dedication or prescription is a question of fact that cannot be decided through the opinion process.

ANDREW WEBER
First Assistant Attorney General

JONATHAN K. FRELS
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Virginia K. Hoelscher
Assistant Attorney General, Opinion Committee