Can a Texas county sheriff put up warning signs in a state highway right-of-way without TxDOT's permission?

Plain-English summary

In 2021 the Governor issued (and has repeatedly renewed) a border disaster proclamation covering Goliad County and other border counties. The Goliad County sheriff placed Spanish-language signs in the right-of-way of U.S. Highway 59 in an unincorporated area, warning human and drug traffickers to turn around and not enter the county. The Texas Department of Transportation (TxDOT) asked the sheriff to remove the signs and eventually removed them itself. The Goliad County Attorney then asked the AG whether the county could erect signs in the state highway right-of-way, pointing to two exceptions in Transportation Code chapter 394, one for signs that protect life and property and one for signs erected by a political subdivision.

The AG concluded the county does not have that authority without TxDOT. The key move in the reasoning is that chapter 394 regulates outdoor advertising signs on rural roads, setting up a licensing and permitting scheme for height, placement, and spacing. Its section 394.003 exceptions only exempt certain signs from chapter 394's own regulations. They do not address, much less grant, the prior question of whether a county may place a sign on a highway right-of-way at all. So the exceptions the county relied on do not help.

Looking more broadly at Title 6 of the Transportation Code, the AG found the authority runs the other way. TxDOT prepares the plan for the state highway system, "has exclusive and direct control of all improvement of the state highway system" (section 224.031), and may mark and sign state highways (section 201.903). Chapter 392 makes it an offense to place or maintain a sign on a state highway right-of-way "unless authorized by state law," and lets TxDOT remove violating signs. Because U.S. Highway 59 is part of the federal-aid highway system, federal law adds another layer: 23 U.S.C. § 109(d) requires the state transportation department to approve the location, form, and character of informational, regulatory, and warning signs that any public authority installs on a federally funded highway.

The AG identified only two Title 6 provisions that let a county place a sign on a state highway, and both route through the state. Section 224.033 lets the Transportation Commission enter an agreement with a commissioners court for county improvements (which can include signs), but that depends on the Commission's agreement. Section 430.001 lets a political subdivision place an advisory safety or directional sign along a public right-of-way under its control, and a county is a political subdivision (State v. Hollins), but the AG reasoned a county's general control of roads is subordinate to TxDOT's exclusive control of state-highway improvements and to the federal approval requirement. The bottom line: a county cannot place a sign in a state highway right-of-way contrary to TxDOT's position.

Finally, in a footnote, the AG noted that although the county did not ask about the disaster proclamation, the Governor's border disaster proclamation does not suspend TxDOT's statutory authority to regulate signs in a state highway right-of-way. Government Code section 418.016 lets the Governor suspend regulatory statutes whose strict compliance would hinder disaster response, but the AG cited prior opinion KP-0306 for the point that emergency powers do not let local officials amend state law the Legislature removed from local control.

What this means for you

If you are a county official or sheriff wanting to post signs on a state highway

Based on this opinion, you need TxDOT's approval, or an agreement between the county's commissioners court and the Texas Transportation Commission under section 224.033, before placing a sign in a state highway right-of-way. The chapter 394 exceptions for safety or political-subdivision signs do not give a county that threshold authority; they only excuse a sign from chapter 394's advertising rules.

If you are a transportation planner or TxDOT staff

The opinion reads section 224.031 and 23 U.S.C. § 109(d) to give TxDOT control over sign placement on state and federally funded highways, and reads chapter 392 to make an unauthorized sign on a state highway right-of-way removable by TxDOT. A county's general control over roads under section 251.016 is treated as subordinate.

If you are relying on a disaster declaration

The opinion states the Governor's border disaster proclamation does not suspend TxDOT's authority to regulate signs in a state highway right-of-way. The AG did not decide any broader question about the Disaster Act, only that this proclamation did not displace TxDOT's role here.

Common questions

Q: Can a Texas county put warning signs in a state highway right-of-way on its own?
A: No. The AG concluded a county cannot place a sign in a state highway right-of-way without TxDOT's approval or an agreement with the Texas Transportation Commission.

Q: Don't the chapter 394 exceptions for safety and political-subdivision signs allow it?
A: No. Those exceptions only exempt a sign from chapter 394's advertising regulations. They do not grant a county authority to place a sign on a right-of-way in the first place.

Q: Why does federal law matter here?
A: U.S. Highway 59 is part of the federal-aid highway system, and 23 U.S.C. § 109(d) requires the state transportation department to approve informational, regulatory, and warning signs that a public authority installs on a federally funded highway.

Q: Is there any way a county can place signs on a state highway?
A: Yes, through the state. The Transportation Commission can agree to county improvements (including signs) under section 224.033, and section 430.001 allows certain advisory signs, but the AG treated county authority as subordinate to TxDOT and TxDOT must not be in conflict.

Q: Did the border disaster proclamation change the answer?
A: No. The AG noted the proclamation does not suspend TxDOT's statutory authority over signs in a state highway right-of-way.

Background and statutory framework

Transportation Code Title 6 governs highways and roads. Chapter 394 (in the "Highway Beautification" subtitle) regulates outdoor advertising on rural roads through Commission licenses and permits; section 394.003 lists signs excepted from those regulations. The AG read those exceptions as not addressing the threshold authority to place a sign on a right-of-way. TxDOT's role comes from sections 201.103, 201.903, and 224.031 (exclusive control of state-highway improvements), and chapter 392 makes placing a sign on a state highway right-of-way without state-law authorization an offense (section 392.032) and allows removal (section 392.033). Federal law (23 U.S.C. § 109(d)) requires state-DOT approval of signs on federally funded highways.

Two provisions let a county place a sign on a state highway, both through the state: section 224.033 (Commission agreement with a commissioners court) and section 430.001 (advisory safety or directional signs by a political subdivision). The AG cited State v. Hollins for the point that counties are political subdivisions, and section 251.016 for a county's general control over roads, but concluded that control is subordinate to TxDOT's exclusive authority and the federal approval requirement (citing prior opinion H-547). On the disaster question, the AG cited Government Code section 418.016 and prior opinion KP-0306 to conclude the proclamation did not suspend TxDOT's authority.

Citations and references

Statutes:

• Tex. Transp. Code ch. 392 (signs on state highway right-of-way), ch. 394 (outdoor advertising on rural roads)
• Tex. Transp. Code § 224.031 (TxDOT exclusive control), § 224.033 (Commission–county agreements)
• Tex. Transp. Code § 430.001 (political-subdivision advisory signs)
• 23 U.S.C. § 109(d) (state-DOT approval of signs on federally funded highways)

Key cases and opinions:

• State v. Hollins, 620 S.W.3d 400 (Tex. 2020) (counties are political subdivisions of the State)
• Tex. Att'y Gen. Op. No. H-547 (1975) (county sign activities must not conflict with the state highway department's policy)
• Tex. Att'y Gen. Op. No. KP-0306 (2020) (local emergency powers do not let officials amend state law removed from local control)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0399
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2022/kp-0399.pdf

Original opinion text

January 31, 2022

The Honorable Rob Baiamonte
Goliad County Attorney
Post Office Box 24
Goliad, Texas 77963

Opinion No. KP-0399

Re: Authority of Goliad County to erect signage in a state highway right-of-way under Transportation Code chapter 394 in particular circumstances (RQ-0422-KP)

Dear Mr. Baiamonte:

You ask about Goliad County's authority to erect signage in a state highway right-of-way under Transportation Code chapter 394, which regulates outdoor advertising signs on rural roads.¹ See generally TEX. TRANSP. CODE §§ 394.001–.087.

¹ See Letter from Honorable Rob Baiamonte, Goliad Cnty. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (June 22, 2021), https://www2.texasattorneygeneral.gov/opinions/opinions/51paxton/rq/2021/pdf/RQ0422KP.pdf ("Request Letter").

Background

In May of 2021, the Governor issued a disaster proclamation under section 418.014 for several specified counties, including Goliad County, along the border proclaiming that "the ongoing surge of individuals unlawfully crossing the Texas-Mexico border poses an ongoing and imminent threat of severe damage, injury, and loss of life and property, including . . . human trafficking."² That disaster proclamation continues, and the Governor most recently renewed that disaster proclamation on December 23, 2021.³ You tell us that the Goliad County sheriff placed signs on U.S. Highway 59 in an unincorporated area near the border between Bee County and Goliad County. Request Letter at 1. We are informed that the signs are in Spanish and translate as the following:

WARNING
Traffickers of humans and drugs
Turn around and go around
Do not enter Goliad County
Or we will hunt you down and put you in jail⁴

You further tell us that the Texas Department of Transportation ("TxDOT") requested the sheriff to remove the signs and eventually removed the signs from the U.S. Highway 59 right-of-way. Id. You ask whether Goliad County may erect signs in the state highway right-of-way, specifically under exceptions in chapter 394 for signs to protect life and property, and signs erected by a political subdivision. Id.; see TEX. TRANSP. CODE § 394.003(a)(3), (6).

² GOVERNOR OF THE STATE OF TEXAS, DISASTER PROCLAMATION (May 31, 2021). Office of the Governor, Proclamation 41-3822, 46 Tex. Reg. 3657, 3658 (2021).

³ GOVERNOR OF THE STATE OF TEXAS, DISASTER PROCLAMATION RENEWAL (Dec. 23, 2021), Office of the Governor, Proclamation 41-3870, 47 Tex. Reg. 5 (2022).

⁴ See Letter from Honorable Roy Boyd, Goliad Cnty. Sheriff at 4 (Sept. 1, 2021) (on file with the Op. Comm.).

Chapter 394 does not grant the county authority to place the signs in question.

Title 6 of the Transportation Code governs highways and roads in the State. See generally TEX. TRANSP. CODE §§ 201.001–474.004 (Title 6). Chapter 394 is found in subtitle H, relating to "Highway Beautification." Id. §§ 391.001–430.002 (subtitle H). Chapter 394 regulates outdoor advertising signs that are visible from the main-traveled way on rural roads, requiring licenses and permits from the Texas Transportation Commission (the "Commission") and regulating such matters as height, placement, spacing, and similar matters. See id. §§ 394.001–.087.

You suggest that exceptions in section 394.003 for signs to protect life and property and signs erected by a political subdivision may authorize Goliad County to erect the sheriff's sign. Request Letter at 1; see TEX. TRANSP. CODE § 394.003(a)(3), (6). But section 394.003 excepts such signs only from the regulations and requirements in chapter 394. TEX. TRANSP. CODE § 394.003(a). Chapter 394 does not address whether a county has authority to place a sign on a highway right-of-way in the first instance. Because chapter 394 does not grant such authority to a county, we must consider more broadly how Transportation Code Title 6 and federal law allocate authority regarding sign placement on highway rights-of-way. We begin by examining TxDOT's responsibility for highway signage.

TxDOT possesses authority concerning signage on state highways under state and federal law.

The TxDOT executive director, with the direction and approval of the Commission, must prepare a plan "for the location, construction, and maintenance of a comprehensive system of state highways and public roads." Id. § 201.103(a), (d); see also id. § 221.001(3) (defining "State highway system" as "the highways in this state included in the plan providing for a system of state highways prepared by the director under Section 201.103"). TxDOT "has exclusive and direct control of all improvement of the state highway system." Id. § 224.031. TxDOT "may classify, designate, and mark state highways in this state" and "may provide a uniform system of marking and signing state highways under the control of the state." Id. § 201.903.

TxDOT informs us that U.S. Highway 59 is part of the state highway system, which in turn is part of the federal-aid highway system and therefore subject to federal law.⁵ For federally funded highways, "the location, form and character of informational, regulatory and warning signs, curb and pavement or other markings, and traffic signals installed or placed by any public authority or other agency, shall be subject to the approval of the State transportation department." 23 U.S.C. § 109(d). Thus, TxDOT has authority with respect to the placement of signs on a highway right-of-way under state and federal law.

⁵ See Letter from Mr. Jeff Graham, Gen. Counsel, Tex. Dept. of Transp., to Honorable Ken Paxton, Tex. Att'y Gen. at 1, 2 (Aug. 16, 2021) (on file with the Op. Comm.).

Title 6 of the Transportation Code prohibits placement of a sign on a state highway right-of-way unless authorized by state law.

Chapter 392, subchapter B governs signs on a state highway right-of-way. See TEX. TRANSP. CODE §§ 392.031–.038. Under the subchapter, a "sign" is "an outdoor sign, display, light, device, figure, painting, drawing, message, plaque, poster, or other thing designed, intended, or used to advertise or inform," and a "state highway right-of-way" is "the right-of-way of a highway designated as part of the state highway system." Id. § 392.031. Under section 392.032, it is an offense to "place or maintain a sign on a state highway right-of-way unless authorized by state law."⁶ Id. § 392.032(a). TxDOT may remove and dispose of a sign that is placed or maintained in violation of the prohibition. Id. § 392.033(a), (b).

⁶ Chapter 393 also prohibits "plac[ing] a sign on the right-of-way of a public road unless the placement of the sign is authorized by state law." TEX. TRANSP. CODE § 393.002. While we need not decide the issue here, the term "public road" in this statute may primarily concern county roads. See Tex. Att'y Gen. Op. No. KP-0240 (2019) at 1 (noting that statutes commonly use the term "public roads" to refer to county roads, roads that are a part of a county road system). Chapter 393 specifically authorizes the sheriff and other county officials to confiscate an illegally placed sign without reference to TxDOT. See TEX. TRANSP. CODE § 393.003(a).

Counties do not possess authority to place informational signs on state highway rights-of-way independent of TxDOT or the Texas Transportation Commission.

Only two provisions in Title 6 specifically address county authority to place a sign on a state highway. Section 224.033 authorizes the Commission to enter into an agreement with a commissioners court for county improvement of the state highway system. Id. § 224.033(a). For purposes of section 224.033, an "improvement" is the "construction, reconstruction, maintenance, and the making of a necessary plan or survey before beginning construction, reconstruction, or maintenance and includes a project or activity appurtenant to a state highway and including drainage facilities, surveying, traffic counts, driveways, landscaping, signs, lights, or guardrails." Id. § 224.033(b) (emphasis added). While an improvement to the state highway system under this statute could include a sign, county authority to erect such a sign under this statute depends on the Commission's agreement. Id. § 224.033(a).

Finally, in a chapter of miscellaneous provisions, section 430.001 provides:

(a) A political subdivision may place along a public right-of-way under the control of the political subdivision an advisory safety or useful directional sign that cannot be mistaken as an official sign.

(b) The political subdivision may not place the sign along a state highway for revenue purposes.

Id. § 430.001(a). A "public right of way" in subsection (a) could include a state highway in some circumstances. Id. § 430.001(a), (b). Subsection (a) grants authority to a political subdivision, which may include a county. See State v. Hollins, 620 S.W.3d 400, 406 (Tex. 2020) (stating that counties are political subdivisions of the State). For some purposes, a county has "general control over all roads, highways, and bridges in the county." See TEX. TRANSP. CODE § 251.016. But a court is likely to conclude that a county's general right of control of roads and highways and any authority to place signs on state highways is subordinate to both TxDOT's exclusive control of state highway improvements under Texas law and to federal law requirements for TxDOT approval of sign placement on federally funded highways. See id. § 224.031 ("The department has exclusive and direct control of all improvement of the state highway system."); 23 U.S.C. § 109(d) (requiring the state transportation department to approve the "location, form, and character of informational, regulatory and warning signs" installed by a public authority on any highway project receiving federal funds). Accordingly, a county does not have the authority to place a sign in a state highway right-of-way contrary to the position of TxDOT. See Tex. Att'y Gen. Op. No. H-547 (1975) at 2 (stating that a "county may perform certain functions in regard to control of state highways including the placement of signs, to the extent that their activities are not in conflict with the policy of [the predecessor of TxDOT]").⁷

⁷ While you do not ask about the authority to erect the signs under the Disaster Act or the Governor's disaster proclamation, we note that the Governor's border disaster proclamation does not suspend the TxDOT's statutory authority regarding the regulation of signs in a state highway right-of-way. See TEX. GOV'T CODE § 418.016(a) (authorizing the Governor to "suspend the provisions of any regulatory statute prescribing the procedures for conduct of state business or the orders or rules of a state agency if strict compliance with the provisions, orders, or rules would in any way prevent, hinder, or delay necessary action in coping with a disaster"). "While local officials possess certain limited emergency powers, those powers do not authorize a county judge to amend state law that the Legislature has expressly removed from local control." Tex. Att'y Gen. Op. No. KP-0306 (2020) at 3.

S U M M A R Y

A county does not have the authority to place a sign in a state highway right-of-way without approval of the Texas Department of Transportation or an agreement with the Texas Transportation Commission.

Very truly yours,

KEN PAXTON
Attorney General of Texas

BRENT E. WEBSTER
First Assistant Attorney General

LESLEY FRENCH
Chief of Staff

MURTAZA F. SUTARWALLA
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

WILLIAM A. HILL
Assistant Attorney General, Opinion Committee