Can a Texas county remove a fence in a county road right-of-way that the commissioners court calls a safety hazard?

TX AG Opinion GA-0703: Can a county remove a fence from a road right-of-way?

Plain-English summary

The Wharton County Attorney asked whether a county has authority to remove fencing located within a county road right-of-way that the commissioners court determines interferes with the safety and transportation of the public. He described the fence as dangerous, and the commissioners court had found that the fence obstructed the public's ability to travel safely and ordered it removed.

The Attorney General pointed to the commissioners court's broad authority over county roads. The Legislature gave commissioners courts general control over all roads, highways, and bridges in the county, and authority to make and enforce all necessary rules and orders for maintaining public roads. The Texas Supreme Court has said this authority comes with a duty to make the roadways safe for public travel. The Transportation Code also requires that a public road of all classes be clear of all obstructions.

Based on that authority, the opinion noted this office had previously concluded a commissioners court may remove, or order the removal of, objects in a county road right-of-way that create a public safety hazard, citing earlier opinions about an abandoned mobile home, trees or shrubs, and general obstructions. Whether a particular item creates a public safety hazard is a fact determination for the commissioners court to make in the first instance, subject to judicial review, not a question for the attorney general opinion process. So a commissioners court has authority, subject to judicial review, to remove hazardous objects from a county road right-of-way.

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 county road control may have been amended since 2009. Confirm the current law before relying on this opinion.

Who this opinion affected (as of 2009)

County commissioners courts: The opinion concluded they have authority, subject to judicial review, to remove objects from a county road right-of-way that they find create a public safety hazard.

Landowners with fences near county roads: The opinion meant a fence within the right-of-way found to be a hazard could be ordered removed, though the hazard finding is reviewable in court.

The traveling public: The opinion tied the removal authority to the court's duty to keep roads safe and clear of obstructions.

Common questions

Can a county tear out a fence in its road right-of-way?
Yes, if the commissioners court finds the fence is a public safety hazard, the opinion said, subject to judicial review.

Where does the county get that power?
The opinion cited the commissioners court's general control over county roads, its duty to keep them safe, and the Transportation Code requirement that roads be clear of obstructions.

Who decides whether the fence is actually a hazard?
The opinion said that is a fact determination for the commissioners court in the first instance, not a question the attorney general opinion process answers.

Can the landowner challenge the removal?
Yes. The opinion stressed the court's authority is subject to judicial review.

Background and statutory framework

The Legislature gave commissioners courts general control over all county roads, highways, and bridges, and authority to make and enforce necessary rules and orders for maintaining public roads (Tex. Transp. Code Ann. §§ 251.016 (Vernon Supp. 2008), 251.003(a)(1) (Vernon 1999)). The Texas Supreme Court read that authority to carry 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)), and the code requires public roads to be clear of all obstructions (Tex. Transp. Code Ann. § 251.008(1)). Prior opinions concluded a commissioners court may remove right-of-way objects that create a safety hazard (Tex. Att'y Gen. Op. Nos. GA-0430 (2006), JM-1241 (1990), M-534 (1969)), and whether an item is a hazard is a fact question for the court, not the opinion process (Tex. Att'y Gen. Op. No. GA-0693 (2009)).

Citations

Statutes:

• Tex. Transp. Code Ann. §§ 251.016 (Vernon Supp. 2008), 251.003(a)(1) (Vernon 1999), 251.008(1)

Cases:

• City of San Antonio v. City of Boerne, 111 S.W.3d 22, 31-32 (Tex. 2003)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0703
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2009/ga0703.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

April 7, 2009

The Honorable G.A. Maffett, III
Wharton County Attorney
309 East Milam, Suite 500
Wharton, Texas 77488

Opinion No. GA-0703

Re: Authority of a commissioners court to remove fencing located within a county right-of-way (RQ-0749-GA)

Dear Mr. Maffett:

You ask whether a county has the "authority to remove fencing located within a county road right-of-way that the Commissioners Court determines interferes with the safety and transportation of the public[.]"[1] You describe the nature of the fence at issue as dangerous and tell us that the "Commissioners Court determined the fence obstructed the public's ability to safely travel and ordered the fence removed . . . ." Request Letter at 3; see id. (attached Order, finding that "fence is a hazard and constitutes an obstruction to the public's safety, use and transportation" of the county road).

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). In addition, section 251.003 of the Transportation Code authorizes a commissioners court to "make and enforce all necessary rules and orders for the . . . maintenance of public roads." Id. § 251.003(a)(1) (Vernon 1999). With respect to this general authority, the Texas Supreme Court has stated that the "Legislature imposed on [county commissioners courts] 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) (construing statutory predecessor to section 251.016). The Transportation Code further provides that a public road of all classes must "be clear of all obstructions." Id. § 251.008(1).

Based on the authority found in the Transportation Code, this office has previously concluded that a county commissioners court may remove or order the removal from a county road right-of-way objects that create a safety hazard to the public. See Tex. Att'y Gen. Op. Nos. GA-0430 (2006) at 3-4 (abandoned mobile home); JM-1241 (1990) at 2 (trees or shrubs); M-534 (1969) at 4 (obstruction). The determination of whether a particular item creates a public safety hazard is a fact determination for the commissioners court to make in the first instance, subject to judicial review. See Tex. Att'y Gen. Op. No. GA-0693 (2009) at 1 (concluding question whether mailboxes create a public safety hazard is a fact question not appropriate for the opinion process); Request Letter (attached Order, finding that "fence is a hazard and constitutes an obstruction to the public's safety, use and transportation" of the county road).

SUMMARY

A county commissioners court has authority, subject to judicial review, to remove from a county road right-of-way objects that create a safety hazard to the public.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

ANDREW WEBER
First Assistant Attorney General

JONATHAN K. FRELS
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Charlotte M. Harper
Assistant Attorney General, Opinion Committee

[Footnote 1: See Request Letter at 1 (available at www.texasattorneygeneral.gov).]