Can a Texas county charge oil companies a permit fee for new driveways onto county roads?

Plain-English summary

Howard County's attorney asked the Attorney General whether the commissioners court could require oil and gas operators to get a permit, and pay a fee, before building a new access point where a private road connects to a county road. The county explained that oil field traffic was badly damaging its roads, especially at those access points, which affect drainage, erosion, traffic safety, and the structural integrity of the road. The permits and fees would help compensate the county for the damage and let it set construction specifications.

The Attorney General started from the rule that a commissioners court has only the powers the Constitution or Legislature grant it, plus the implied powers needed to carry those out. Transportation Code chapter 251 gives commissioners courts broad authority over county roads: section 251.003 lets them make and enforce rules for the construction and maintenance of public roads, and section 251.016 gives them general control over all roads in the county, which the Texas Supreme Court has read to carry a duty to keep roads safe for travel. A county road is not just the traveled surface; it includes the whole public right-of-way. An access point built outside the traveled road but within the right-of-way sits in an area the commissioners court controls. So if the court finds that access points damage county roads and that permitting their construction is necessary to maintain and protect those roads, sections 251.003 and 251.016 let it require permits.

Charging a fee, the opinion explained, takes separate authority, and courts will not imply a power to impose a fee. That authority exists in section 251.017, which lets a commissioners court set a reasonable fee for a permit it is authorized to issue under chapter 251. Whether a fee is reasonable is for the court to decide, subject to judicial review. The opinion added two constitutional cautions: the permitting requirement and fee could be an unconstitutional taking if they are not roughly proportional to the access point's impact on the roads, and applying the requirement only to the oil and gas industry, rather than to all heavy-traffic access points, could violate equal protection unless the distinction is rationally related to a legitimate state interest.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later Attorney General 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.

What the opinion meant for those who asked

The Howard County Attorney (as the opinion described it): The opinion answered that the commissioners court does have statutory authority to require access-point permits for construction within the county right-of-way (sections 251.003 and 251.016) and to set a reasonable fee for them (section 251.017). It tied that authority to a finding by the court that access points damage county roads and that permitting is necessary to maintain and protect them.

Commissioners courts generally (as the opinion described it): The opinion described the permit and fee authority as discretionary and subject to judicial review, with a court able to set aside a decision that is illegal, unreasonable, or arbitrary. It flagged that the fee and conditions had to stay roughly proportional to a project's road impact to avoid being an unconstitutional taking.

Oil and gas operators and other right-of-way users (as the opinion described it): The opinion described an industry-specific scheme as constitutionally risky. Targeting only oil and gas access points, rather than all access points carrying heavy traffic, could violate the Equal Protection Clauses of the Texas and United States Constitutions unless something about the industry made special treatment rationally justified.

Common questions

Can a Texas county require a permit before someone builds a driveway or access road onto a county road?
The opinion concluded that Transportation Code sections 251.003 and 251.016 authorize a commissioners court to require permits for constructing access points within the county right-of-way, provided the court finds the permits necessary to maintain county roads and keep them safe.

Can the county charge a fee for that permit?
Yes, under section 251.017, which lets a commissioners court set a reasonable fee for a permit it is authorized to issue under chapter 251. The opinion noted that fee authority is separate from permit authority and that courts will not imply a power to charge a fee.

Is there a limit on how high the fee can be?
The opinion said whether a fee is reasonable is within the court's discretion, subject to judicial review, and that a fee not "roughly proportional" to the access point's impact on the roads could amount to an unconstitutional taking.

Can the county apply the permit rule only to oil and gas operations?
The opinion warned this could violate equal protection. Singling out one industry risks running afoul of the Equal Protection Clauses unless rationally related to a legitimate state interest; applying the rule to all heavy-traffic access points would be less likely to raise that problem.

Background and statutory framework

The opinion built its analysis on Transportation Code chapter 251. Section 251.003(a)(1) gives a commissioners court express authority to make and enforce rules for road construction and maintenance, and section 251.016 grants general control over county roads. The opinion read these together with City of San Antonio v. City of Boerne, which describes the limited, granted-plus-implied powers of a commissioners court and the duty to keep roads safe. To show that the right-of-way (not just the pavement) is within county control, it cited State v. NICO-WFJ, L.L.C., Camilla Twin Harbor Volunteer Fire Dep't., Inc. v. Plemmons, and Allen v. Keeling, and it relied on Anderson v. Wood for the implied discretion to accomplish a conferred duty.

On fees, the opinion cited GA-0544 and Moore v. Sheppard for the rule that fee authority will not be implied, then located that authority in section 251.017. It cited Comm'rs Ct. of Titus Cnty. v. Agan for the abuse-of-discretion standard on review, Town of Flower Mound v. Stafford Estates Ltd. P'ship for the rough-proportionality takings standard, and First Am. Title Ins. Co. v. Combs for the rational-basis equal-protection standard. It also cited JM-1241 by analogy (removal of trees interfering with right-of-way purposes).

Citations

Cases:

• City of San Antonio v. City of Boerne, 111 S.W.3d 22, 28 (Tex. 2003)
• State v. NICO-WFJ, L.L.C., 384 S.W.3d 818, 821 (Tex. 2012)
• Camilla Twin Harbor Volunteer Fire Dep't., Inc. v. Plemmons, 998 S.W.2d 413, 417 (Tex. App.-Beaumont 1999, pet. denied)
• Allen v. Keeling, 613 S.W.2d 253, 254-55 (Tex. 1981)
• Anderson v. Wood, 152 S.W.2d 1084, 1085 (Tex. 1941)
• Moore v. Sheppard, 192 S.W.2d 559, 561 (Tex. 1946)
• Comm'rs Ct. of Titus Cnty. v. Agan, 940 S.W.2d 77, 80 (Tex. 1997)
• Town of Flower Mound v. Stafford Estates Ltd. P'ship, 135 S.W.3d 620, 634 (Tex. 2004)
• First Am. Title Ins. Co. v. Combs, 258 S.W.3d 627, 639 (Tex. 2008)

Statutes:

• Tex. Transp. Code Ann. § 251.003(a)(1) (West 1999); § 251.016, § 251.017 (West Supp. 2012); ch. 251

Other authority:

• Tex. Att'y Gen. Op. No. JM-1241 (1990) at 2
• Tex. Att'y Gen. Op. No. GA-0544 (2007) at 4

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-1013
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2013/ga1013.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

July 22, 2013

The Honorable Joshua Hamby Opinion No. GA-1013
Howard County Attorney
Post Office Box 2096 Re: Whether a commissioners court may require a
Big Spring, Texas 79721-2096 permit and charge a fee for installing an access
point to a county road (RQ-1110-GA)

Dear Mr. Hamby:

You ask whether the Howard County Commissioners Court can "require individuals and entities in the oil and gas industry to obtain a permit for constructing or installing an access to a county road to offset the damage caused to the county road."[1] You explain that oil field activity in Howard County is creating excess traffic that is "causing severe damage to our roads and increasing the costs of the maintenance and repair," particularly at "access points" where private roads intersect county roads. Request Letter at 1. More specifically, briefing we have received explains that "[c]onnecting an access point to a county road can affect roadway drainage, erosion and sedimentation in the right-of-way, vehicular and pedestrian traffic safety, and the structural integrity of the road and its future maintenance needs."[2] To address these issues, the Howard County commissioners want to require a permit and charge a fee for each new access point that is constructed specifically for purposes of oil and gas operations. Request Letter at 1-2. Such measures, you explain, would compensate the county for increased damage to county roads attributable to oil and gas operations and allow the county to implement certain specifications for the construction of access points. Id. at 1.

A commissioners court may exercise only those powers expressly granted by either the Texas Constitution or the Legislature together with such implied powers as are necessary to accomplish the powers expressly conferred. City of San Antonio v. City of Boerne, 111 S.W.3d 22, 28 (Tex. 2003). The Legislature has granted commissioners courts broad authority over county roads with the enactment of Transportation Code chapter 251. Section 251.003 grants a commissioners court express authority to "make and enforce all necessary rules and orders for the construction and maintenance of public roads." TEX. TRANSP. CODE ANN. § 251.003(a)(1) (West 1999). Section 251.016 authorizes commissioners courts to "exercise general control over all roads, highways, and bridges in the county." Id. § 251.016 (West Supp. 2012). "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, 111 S.W.3d at 31-32 (construing a statutory predecessor to Transportation Code section 251.016).

In addressing a commissioners court's authority over county roads, we also note that a road is not limited to the area traveled, but includes the whole width of the public right-of-way. State v. NICO-WFJ, L.L.C., 384 S.W.3d 818, 821 (Tex. 2012) (considering a dedicated state highway right-of-way). As a general rule, a landowner whose property abuts the right-of-way boundary of a public highway "owns the fee to the center of the thoroughfare in question, subject only to an easement existing in favor of the public to a right of passage." Camilla Twin Harbor Volunteer Fire Dep't., Inc. v. Plemmons, 998 S.W.2d 413, 417 (Tex. App.-Beaumont 1999, pet. denied). The easement confers upon its holder the right to use and control as much of the right-of-way as reasonably necessary for road purposes. NICO-WFJ, L.L.C., 384 S.W.3d at 821. Accordingly, the right-of-way may include "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) (considering a road established by prescription). Thus, the construction of an access point outside the traveled road but within the county right-of-way boundary occurs in an area over which the commissioners court has authority.

When a power or duty has been conferred on a commissioners court, "it has implied authority to exercise a broad discretion to accomplish the purposes intended." Anderson v. Wood, 152 S.W.2d 1084, 1085 (Tex. 1941). Therefore, if a commissioners court determines that access points within the county right-of-way cause damage to county roads, and subsequently concludes that requiring a permit for their construction is necessary to maintain county roads and make them safe for public travel, sections 251.003 and 251.016 authorize the commissioners court to order that such permits be required. See id.; see also Tex. Att'y Gen. Op. No. JM-1241 (1990) at 2 (concluding that a commissioners court may order the removal of trees in right-of-way upon a "reasonable finding that [they] would interfere with right-of-way purposes").

Charging a fee is a separate action requiring separate authority. See Tex. Att'y Gen. Op. No. GA-0544 (2007) at 4 ("A court . . . will not imply authority to impose a fee.") (citing Moore v. Sheppard, 192 S.W.2d 559, 561 (Tex. 1946)). Transportation Code section 251.017 grants a commissioners court the authority to "set a reasonable fee for the county's issuance of a permit authorized by [chapter 251] for which a fee is not specifically prescribed." TEX. TRANSP. CODE ANN. § 251.017 (West Supp. 2012). Because a commissioners court has the authority to require access-point permits for construction within the county right-of-way under sections 251.003 and 251.016 of the Transportation Code, it may set a reasonable fee for such permits in accordance with section 251.017. Id. Whether any particular fee is "reasonable" is a matter within the discretion of the commissioners court, subject to judicial review. See Anderson, 152 S.W.2d at 1085; Comm'rs Ct. of Titus Cnty. v. Agan, 940 S.W.2d 77, 80 (Tex. 1997) (holding that a commissioners court abuses its discretion by acting "illegally, unreasonably, or arbitrarily"). The permitting requirements and any associated fee may constitute an unconstitutional taking without just compensation if they are not "roughly proportional" to the impact that the access points will have on the county roads. See Town of Flower Mound v. Stafford Estates Ltd. P'ship, 135 S.W.3d 620, 634 (Tex. 2004) (applying the standard that a condition of government approval for the development of property must "bear[] an essential nexus to the substantial advancement of some legitimate government interest and [be] roughly proportional to the projected impact of the proposed development").

We next consider whether the commissioners court may require a permit and charge a fee solely for new access points constructed for oil and gas purposes. Any distinction a commissioners court makes between industries that utilize access points must be "rationally related to a legitimate state interest" or risk violating the Equal Protection Clauses of both the Texas and United States Constitutions. First Am. Title Ins. Co. v. Combs, 258 S.W.3d 627, 639 (Tex. 2008). Under this standard, targeting a specific industry for permitting requirements and fees not applicable to other industries could run afoul of the Equal Protection Clauses unless something about the targeted industry makes it uniquely deserving of special permitting requirements. If the county were to impose special requirements on all access points that carry heavy traffic-rather than on access points associated with a certain industry-its actions would be less likely to run afoul of equal protection requirements. Whether a particular permitting scheme satisfies that standard is a matter for the commissioners court to decide, subject to judicial review.

SUMMARY

Transportation Code sections 251.003 and 251.016 authorize a commissioners court to require permits for the construction within the county right-of-way of access points to county roads. Section 251.017 authorizes a commissioners court to set a reasonable fee for such permits.

DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

Stephen L. Tatum, Jr.
Assistant Attorney General, Opinion Committee

[1] Letter from Honorable Joshua Hamby, Howard Cnty. Att'y, to Honorable Greg Abbott, Tex. Att'y Gen. at 1 (Feb. 13, 2013), http://texasattorneygeneral.gov/opin ("Request Letter").

[2] Brief from Ms. Julie Joe, Assist. Travis Cnty. Att'y at 3 (Apr. 16, 2013) (footnote omitted) (on file with the Op. Comm.).