Does a Texas county have to maintain a road and remove a locked gate if it's a 'public road'?

Plain-English summary

Bosque County had a headache on its hands: two private landowners were locked in a long-running fight over gates on a road that runs across one of their properties, and the county attorney wanted to know whether the commissioners court had any duty to maintain the road and force the gate's removal. The county described the road as one that was not on its list of approved county roads, had never been maintained by the county, and was "basically just a well-used trail for livestock." The landowners disagreed sharply about the facts, including whether the road, or which parts of it, was public or private.

The AG started by saying what it would not do: it does not resolve disputed fact questions or settle private disputes through the opinion process. So it gave only the general legal framework. A key distinction in Texas road law is between a "public road" and a "county road." In its broadest sense, a public road is any road the public has the right to use, whether because the commissioners court laid it out, because it became public through long use and adoption (prescription), or because it was dedicated to the public. A "county road," by contrast, is a public road the commissioners court has actually accepted into the county's system of roads. The important consequence: all county roads are public roads, but not all public roads are county roads, and a county generally gets to choose which roads it brings into the system for maintenance. A county has no duty to maintain a road, or to order obstacles removed from it, unless the road is a county road.

For a small county like Bosque (population 50,000 or fewer), the AG noted, the county can acquire a public interest in a private road only by purchase, condemnation, express written dedication that the commissioners court accepts, or a final court judgment of adverse possession in the county's favor; public use with the owner's consent and even county maintenance do not by themselves create a county interest. Under the chapter that gives counties general road authority, a county's duty to maintain a road, keep it clear of obstructions, and regulate gates attaches only where the road has been laid out as a county road by law and has not been discontinued. Finally, the AG addressed the landowners' court judgments: because the county was not a party to that private litigation, fact findings in those judgments (even ones calling the road a "public road") may affect the private parties' rights but do not establish a county duty to maintain the road or remove a gate.

Currency note

This opinion was issued in 2019. 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.

What the opinion meant for those who asked

Commissioners courts and county officials: At the time of the opinion, the AG read Texas road law to impose a duty to maintain a road, clear obstacles, and regulate gates only where the road is a county road laid out by law and not discontinued, and concluded a small county acquires an interest in a private road only through the specific statutory routes.

Landowners in road and gate disputes: The opinion explained that the AG would not resolve their factual dispute, and that a road being a "public road" does not by itself obligate the county to maintain it or remove a gate; that duty turns on whether the road is a county road.

Anyone relying on a court judgment from private litigation: The opinion concluded that fact findings in a judgment between private parties, where the county was not a party, do not bind the county or create a county duty, because a person generally is not bound by a judgment in a suit to which it was not a party.

Common questions

Does my county have to maintain a road just because it's a "public road"?
The AG concluded not necessarily. A county's duty to maintain a road, clear obstacles, and regulate gates attaches only if the road is a county road laid out by law and not discontinued. Not every public road is a county road.

What's the difference between a "public road" and a "county road"?
The AG explained a public road is any road the public has a right to use (including by dedication or prescription), while a county road is a public road the commissioners court has accepted into the county's system of roads. All county roads are public roads, but not all public roads are county roads.

How does a small county get an interest in a private road?
For counties of 50,000 or fewer, the AG noted the county can acquire a public interest only by purchase, condemnation, express written dedication accepted by the commissioners court, or a court's final adverse-possession judgment in the county's favor. Public use with the owner's consent and county maintenance alone do not establish a county interest.

Can a judgment between two landowners force the county to maintain a road?
The AG concluded no. When the county is not a party to the private litigation, fact findings in that judgment may affect private rights but do not establish a county duty to maintain the road or remove a gate.

Will the AG decide whether my specific road is public or private?
No. The AG does not resolve disputed fact questions or settle private disputes in the opinion process, so it addressed only general legal principles.

Background and statutory framework

The AG declined to resolve the disputed facts or the private dispute (Tex. Att'y Gen. Op. No. KP-0205 (2018); Tex. Att'y Gen. LO-89-34) and addressed general principles. It distinguished a "public road," which the Texas Supreme Court long ago explained can arise from the commissioners court laying out the road, from long use and adoption (prescription), or from dedication (Worthington v. Wade; Bradford v. Moseley), from a "county road," which is a public road the commissioners court has accepted into the county system (Tex. Att'y Gen. Op. No. KP-0075 (2016)). Not all public roads are county roads (Tex. Att'y Gen. Op. No. GA-0659 (2008); Buffington v. Deleon; City of Houston v. Hughes; Tex. Att'y Gen. Op. No. GA-0359 (2005)), and a county generally chooses which roads to bring into its system (Tex. Att'y Gen. LO-95-078; Tex. Att'y Gen. Op. No. JC-0503 (2002)), with no duty to remove obstacles from a road that is not a county road (Tex. Att'y Gen. Op. No. GA-0139 (2004)).

For counties of 50,000 or fewer, a public interest in a private road may be acquired only by purchase, condemnation, express dedication, or a court's final adverse-possession judgment for the county (Tex. Transp. Code §§ 281.001-.002). Express dedication requires an explicit written grant to the commissioners court, with no maintenance duty unless the court accepts it (§ 281.003; Tex. Att'y Gen. Op. No. JC-0503 (2002)), and public use with consent plus county maintenance do not establish adverse possession (§ 281.004); the interest must be recorded by resolution (§ 281.005), and a county may clarify a public interest by publishing a map after specified proceedings (§§ 258.001, .002). Chapter 251 gives general road authority (§§ 251.001-.161), authorizes maintaining public roads (§ 251.003), requires keeping roads clear of obstructions (§ 251.008), and allows gates on a third-class road meeting requirements (§ 251.010(a)), but defines a chapter 251 public road as one laid out and established according to law and not discontinued (§§ 251.002, 251.001(2)), with neighborhood-road gate rules and no ongoing maintenance duty (§ 251.053(f)). The AG concluded a county's duty attaches only to a county road laid out by law and not discontinued. As for the private judgments, a person generally is not bound by a judgment in a suit to which it was not a party (Amstadt v. U.S. Brass Corp.), so findings in litigation between landowners do not establish a county duty.

Citations

Statutory provisions:

• Tex. Transp. Code § 251.001-.161; § 251.001(2); § 251.002; § 251.003; § 251.008; § 251.010; § 251.010(a); § 251.053; § 251.053(f); § 258.001; § 258.002; § 281.001-.002; § 281.003; § 281.004; § 281.005

Cases and Attorney General opinions:

• Worthington v. Wade, 17 S.W. 520, 520-21 (Tex. 1891)
• Bradford v. Moseley, 223 S.W. 171, 174 (Tex. Comm'n App. 1920, judgm't approved)
• Buffington v. Deleon, 177 S.W.3d 205, 210-12 (Tex. App.-Houston [1st Dist.] 2005, no pet.)
• City of Houston v. Hughes, 284 S.W.2d 249, 252-53 (Tex. Civ. App.-Austin 1955, writ ref'd n.r.e.)
• Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 652 (Tex. 1996)
• Tex. Att'y Gen. Op. No. KP-0205 (2018)
• Tex. Att'y Gen. Op. No. KP-0075 (2016)
• Tex. Att'y Gen. Op. No. GA-0659 (2008)
• Tex. Att'y Gen. Op. No. GA-0359 (2005)
• Tex. Att'y Gen. Op. No. GA-0139 (2004)
• Tex. Att'y Gen. Op. No. JC-0503 (2002)
• Tex. Att'y Gen. LO-89-34
• Tex. Att'y Gen. LO-95-078

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0240
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2019/kp-0240.pdf

Original opinion text

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

February 22, 2019

The Honorable Natalie Cobb Koehler Opinion No. KP-0240
Bosque County Attorney
Post Office Box 215 Re: Whether a commissioners court has a
Meridian, Texas 76665 duty to maintain public roads (RQ-0245-KP)

Dear Ms. Koehler:

    You ask whether the commissioners court of Bosque County (the "County") has a duty to

maintain a road you characterize as a "public road" and remove a gate from that road. [1] Your
question arises out of a long-running dispute between private landowners over gates located on a
road that traverses the property of one of the owners. Request Letter at 1; Supplemental Letter at

1. You refer to court judgments from 2010 and 2017 rendered in litigation between landowners
   that make fact findings about the road and two gates. [2] The landowners strongly dispute the facts
   concerning the road, including whether all parts of the road are public or private, what portions of
   the road are subject to the different judgments, and the character of the road at the location of the
   current disputed gate. [3] You state that the road "is not on [the County's] list of approved county
   roads and it has not been maintained by the county. It was basically just a well-used trail for
   livestock." Supplemental Letter at 1. The attorney general opinion process does not resolve
   disputed fact questions or settle private disputes. See Tex. Att'y Gen. Op. No. KP-0205 (2018) at
   1 ("This office does not resolve disputed questions of fact through the opinion process."); Tex.
   Att'y Gen. LO-89-34, at 2 ("The settlement of private disputes is reserved for the courts.").
   Therefore, we will address only general legal principles that may be pertinent to the County's
   question.

   As a preliminary matter, while statutes and opinions occasionally use the terms "public
   

   road" and "county road" interchangeably, keeping the meaning of these terms distinct helps to
   understand Texas road law. As the Texas Supreme Court long ago explained, the term public road
   may have two meanings:

           All roads which have been laid out and established by authority of
           the commissioners' courts are public roads. A road not originally
           established under the statute may become public by long-continued
           use and adoption as such by the county commissioners with the
           assent of the owner or by prescription. A road may also become
           public, in the sense that the public have the right to use it, by
           dedication.
   

Worthington v. Wade, 17 S.W. 520, 520-21 (Tex. 1891) (emphasis added) (citations omitted). In
its broadest sense, a public road is any road open to the public to use as a matter of right, whether
due to government action or other means such as dedication. Id. at 521; see Bradford v. Moseley,
223 S.W. 171, 174 (Tex. Comm'n App. 1920, judgm't approved) ("A road open to the public is a
public road ...."). By contrast, a "county road is a public road that the commissioners court has
accepted into the county's system of roads." Tex. Att'y Gen. Op. No. KP-0075 (2016) at 2. "While
all roads in a county's system of roads are 'public roads,' not all public roads are part of the system
of roads maintained by the county." Tex. Att'y Gen. Op. No. GA-0659 (2008) at 2-3; see also
Buffington v. Deleon, 177 S.W.3d 205, 210-12 (Tex. App.-Houston [1st Dist.] 2005, no pet.)
(holding that a road was public by dedication even though it was not part of the county system of
roads maintained by the county); City of Houston v. Hughes, 284 S.W.2d 249, 252-53 (Tex. Civ.
App.-Austin 1955, writ ref'd n.r.e.) (holding that "[t]he laying out or maintenance of a road by
public authority is not essential to its being a public road"); Tex. Att'y Gen. Op. No. GA-0359
(2005) at 1-2 (stating that "[a] public road is not necessarily part of the county road system").
Generally, a county has the option to decide which roads it will bring into the county road system
for maintenance. Tex. Att'y Gen. LO-95-078, at 4 (citing 36 DAVID B. BROOKS, TEXAS PRACTICE:
COUNTY & SPECIAL DISTRICT LAW § 40.6 (1989)); see also Tex. Att'y Gen. Op. No. JC-0503
(2002) at 1, 9 (determining that a county did not have a duty to maintain a road dedicated to the
public unless the county accepted the road into the county system). And a county does not have a
duty to order the removal of obstacles from a road that is not a county road. Tex. Att'y Gen. Op.
No. GA-0139 (2004) at 4.

    While a road may become a county road by various means, counties such as Bosque County

that have a population of 50,000 or fewer persons may acquire a public interest in a private road
only by purchase, condemnation, express dedication, or a court's final judgment of adverse
possession in favor of the county. See TEX. TRANSP. CODE §§ 281.001-.002. [4] To establish a
county interest by express dedication, the declaration must be "an explicit voluntary grant . . .
communicated in writing to the commissioners court," and a county has no duty to maintain the
road unless the commissioners court accepts the dedication. Id. § 281.003; Tex. Att'y Gen. Op.
No. JC-0503 (2002) at 4-5. The public's use of a private road with the owner's consent and public
maintenance of the road by the county do not establish a county interest by adverse possession.
See TEX. TRANSP. CODE § 281.004. To obtain a public interest under this chapter, the
commissioners court must record the interest by resolution in the records of the court. Id.
§ 281.005. Also, chapter 258 authorizes a county to clarify the existence of a county public interest
by publishing a map reflecting that interest after conducting specified proceedings. Id. §§ 258.001,
.002.

    Chapter 251 of the Transportation Code provides general county authority over roads. See

id. §§ 251.001-.161. The chapter authorizes counties to maintain "public roads." Id. § 251.003.
While the chapter does not directly address the duty of a county to maintain county roads, it
requires a county to keep roads subject to chapter 251 clear of obstructions. Id. § 251.008. Section
251.010 allows the erection of gates on county roads of a certain size-a "third-class road"-but
only if the gate meets specified requirements. Id. § 251.010(a). [5] However, not all public roads
are subject to chapter 251. The chapter defines a public road for purposes of chapter 251 as a
"public road or highway that has been laid out and established according to law and that has not
been discontinued." Id. § 251.002. A public road is "discontinued" if the county has discontinued
the maintenance of the road. Id. § 251.001(2). Thus, a court would likely determine that a county
has a duty to maintain a road, remove obstacles, and regulate gates only if the road has been laid
out as a county road by law and has not been discontinued.

    Finally, we consider your concern that findings of fact in a judgment rendered in litigation

between private parties might establish a county duty to maintain a road. See Request Letter at 1;
Supplemental Letter at 1. You refer to judgments that recite as findings of fact that a certain road
is a "public roadway" or a "public, third class road," but the judgments on their face do not reflect
that the County was a party to the litigation. [6] Without addressing the substantive issues concerning
these judgments, we advise that generally persons or entities are not bound by a judgment in a suit
to which they were not parties or in privity with a party. See Amstadt v. U.S. Brass Corp., 919
S.W.2d 644, 652 (Tex. 1996). Thus, a court would likely conclude that when a county is not a
party to litigation between landowners, fact findings recited in the judgment rendered in that
litigation may affect private rights but do not establish a county duty to maintain a road or remove
a gate from the litigated road.

                                  SUMMARY

                  A court would likely conclude that a county has a duty to
          maintain a road, remove obstacles, and regulate gates only if the
          road has been laid out as a county road by law and has not been
          discontinued.

                  A court would also likely conclude that when a county is not
          a party to litigation between private landowners, fact findings
          recited in the judgment rendered in that litigation may affect private
          rights but do not establish a county duty to maintain a road or
          remove a gate from the litigated road.

                                         Very truly yours,

                                         KEN PAXTON
                                         Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy First Assistant Attorney General

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

WILLIAM A. HILL
Assistant Attorney General, Opinion Committee

[1] See Letter and attachments from Honorable Natalie Cobb Koehler, Bosque Cty. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Aug. 22, 2018), https://www2.texasattorneygeneral.gov/opinion/requests-for-opinions-rqs ("Request Letter"); Supplemental Letter and attachments from Honorable Natalie Cobb Koehler at 1 (Aug. 28, 2018) ("Supplemental Letter") (Supplemental Letter and attachments to both letters on file with the Op. Comm.).

[2] See Supplemental Letter at 1 and attached Judgment, Doty v. Payne, No. 09-04-06509-BCCV (220th Dist. Ct., Bosque Cty., Tex. May 4, 2010); Request Letter at 1 and attached Judgment of Contempt, Doty v. Payne, No. CV09065 (220th Dist. Ct., Bosque Cty., Tex. June 14, 2017), vacated, Order Correcting Prior Order, Doty v. Payne, No. CV09065 (220th Dist. Ct., Bosque Cty., Tex. Jan. 29, 2018).

[3] See Brief from C. Alfred Mackenzie, on behalf of Roye Ray Payne at 2-10 (Sept. 17, 2018); Brief from David L. LeBas, Naman Howell Smith & Lee, PLLC, on behalf of Richard P. Kincheloe at 2-6 (Sept. 24, 2018).

[4] As of the 2010 census, Bosque County had a population of 18,212. U.S. CENSUS BUREAU, DEP'T OF COMMERCE, https://www.census.gov/quickfacts/fact/table/bosquecountytexas/PST045217.

[5] The gate requirements in section 251.010 also apply to gates on a neighborhood road established under section 251.053 procedures, but only if a county obtained a right-of-way for the neighborhood road at no cost. TEX. TRANSP. CODE § 251.010(a). Section 251.053 specifies that a county does not have an ongoing obligation to maintain a neighborhood road. Id. § 251.053(f).

[6] See Supplemental Letter at 1 and attached Judgment, Doty v. Payne, No. 09-04-06509-BCCV (220th Dist. Ct., Bosque Cty., Tex. May 4, 2010); Request Letter at 1 and attached Judgment of Contempt, Doty v. Payne, No. CV09065 (220th Dist. Ct., Bosque Cty., Tex. June 14, 2017), vacated, Order Correcting Prior Order, Doty v. Payne, No. CV09065 (220th Dist. Ct., Bosque Cty., Tex. Jan. 29, 2018).