Does closing a county road in Texas require a unanimous commissioners court vote?

Texas AG Opinion JC-0116: Closing a County Road Takes a Unanimous Vote, Cul-de-sac Included

Plain-English summary

The Uvalde County Auditor asked a narrow procedural question: when a commissioners court wants to close a public road that is a dead-end cul-de-sac rather than a through street, does the court need a unanimous vote, or will a simple majority do? The Attorney General answered that it takes a unanimous vote.

The reasoning was short. Section 251.051(b)(1) of the Transportation Code says a unanimous vote of the commissioners court is required to "close, abandon, or vacate a public road." Nothing in that language treats a cul-de-sac differently from a through road, and nothing in section 251.002, which defines a public road, draws that distinction either. The opinion cited an 1894 case (Decker v. Menard County) recognizing that a cul-de-sac can be a public road. The opinion also cleaned up an old conflicting authority: a 1973 opinion (H-166) had read the predecessor statute not to require unanimity, but the explicit current language settled the question, so H-166 was treated as overruled by operation of law. The one caveat: whether the particular cul-de-sac in question is in fact a "public road" within the meaning of section 251.002 is a fact question, which the opinion did not resolve.

Currency note

This opinion was issued in 1999. 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.

Common questions

Did closing a cul-de-sac require a unanimous commissioners court vote?
Yes. The opinion concluded that closing any public road, including a cul-de-sac, required a unanimous vote under section 251.051(b)(1) of the Transportation Code.

Why didn't a cul-de-sac get treated differently from a through street?
Because neither the unanimous-vote statute nor the definition of "public road" distinguishes between them, and case law recognized that a cul-de-sac can be a public road.

What happened to the older opinion that said unanimity was not required?
The opinion treated Attorney General Opinion H-166 (1973) as overruled by operation of law, because the explicit language of section 251.051 now requires a unanimous vote to close a road.

Was there anything the opinion left undecided?
Yes. Whether the specific cul-de-sac at issue actually qualified as a "public road" under section 251.002 was a fact question the opinion did not answer.

Background and statutory framework

The question turned entirely on the text of chapter 251 of the Transportation Code. Section 251.051(b)(1) requires a unanimous vote of the commissioners court to close, abandon, or vacate a public road. Section 251.002 defines a public road as one "that has been laid out and established according to law and that has not been discontinued." The opinion read these provisions together and found no basis to exempt a cul-de-sac, supported by Decker v. Menard County, which recognized that a cul-de-sac may be a public road. Because the controlling statutory language was explicit, the opinion concluded that the contrary reasoning of the 1973 opinion H-166 (which had distinguished "discontinuance" from change or alteration under a predecessor statute) had been overtaken by the current statute and was overruled by operation of law.

Citations

Statutes and authorities:

• Tex. Transp. Code Ann. § 251.051(b)(1) (Vernon 1999)
• Tex. Transp. Code Ann. § 251.002 (Vernon 1999)
• Tex. Att'y Gen. Op. No. H-166 (1973)

Cases:

• Decker v. Menard County, 25 S.W. 727 (Tex. Civ. App. 1894, no writ)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0116
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1999/jc0116.pdf

Original opinion text

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

September 24, 1999

Ms. Alice L. Chapman
Uvalde County Auditor
Courthouse Plaza #4
100 North Getty Street
Uvalde, Texas 78801

Opinion No. JC-0116

Re: Whether a commissioners court must vote unanimously to close a public road that is not a through street (RQ-0059)

Dear Ms. Chapman:

You ask whether the closure of a public road which, in this instance, is a cul-de-sac rather than a through street, requires a unanimous vote of the commissioners court. It does.

As you correctly note, section 251.051 of the Transportation Code reads in pertinent part:

(b) A unanimous vote of the commissioners court is required to:

(1) close, abandon, or vacate a public road;

TEX. TRANSP. CODE ANN. § 251.051(b)(1) (Vernon 1999).

Nothing in the statutory language here distinguishes a cul-de-sac from a through road. Nor is such a distinction to be found in section 251.002 of the Transportation Code, the definition of public roads: "A public road or highway that has been laid out and established according to law and that has not been discontinued is a public road." Id. § 251.002. See Decker v. Menard County, 25 S.W. 727, 728 (Tex. Civ. App. 1894, no writ) (cul-de-sac may be public road).

We note that this office, in Attorney General Opinion H-166 (1973) held that the statutory predecessor of section 251.051 did not require a unanimous vote of the commissioners court to close a road, on the ground that "discontinuance" was distinguishable from change or alteration. Whatever force Opinion H-166's argument may have had when the opinion was issued has been vitiated by the explicit language of section 251.051 with respect to road closing, and accordingly Attorney General Opinion H-166 has been overruled by operation of law.

Accordingly, if the cul-de-sac in question is a public road within the meaning of section 251.002, then the plain language of section 251.051(b)(1) requires a unanimous vote of the commissioners court for its closing. Whether that be the case is, of course, a question of fact about which we do not opine.

SUMMARY

The closing of a public road, whether a cul-de-sac or a through street, requires a unanimous vote of the commissioners court. Attorney General Opinion H-166 (1973) is overruled.

JOHN CORNYN
Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

James E. Tourtelott
Assistant Attorney General - Opinion Committee