Attorney General Opinion GA-0594

ATTORNEY GENERAL OF TEXAS GREG ABBOTT January 17, 2008 The Honorable R. Kelton Conner Hood County Attorney 1200 West Pearl Street Granbury, Texas 76048 Dear Mr. Connor: Opinion No. GA-0594 Re: Whether Hood County is responsible for maintaining certain subdivision roads (RQ-0606-GA) You ask whether Hood County is responsible for maintaining roads in residential subdivisions within the county, in particular the roads in Hill Country Estates.! The Legislature has delegated to the commissioners courts the authority to build, maintain and control county roads, subjectto statutory limits. See TEX. TRANSP. CODEANN. §§251.003 (Vernon 1999) (commissioners court may build and maintain county roads), .016 (Vernon Supp. 2007) (commissioners court may exercise general control over all roads, highways, and bridges in the county). By granting a commissioners court this authority, the Legislature imposed on it a duty to make the roadways safe for public travel. See City ofSan Antonio v. City ofBoerne, 111 S.W.3d 22,31-32 (Tex. 2003). In connection with your question about road maintenance, you submit documents from the plat of Hill Country Estates consisting of a map and two pages of restrictions. See Request Letter/Brief, supra note 1, at Exhibit C. The map includes a notation stating that the landowner dedicates the roads and easements shown thereon to public use and that "[t]he 60 foot roads are not maintained by the county." Id. (map attached to Exhibit C). A different provision is included in a list of restrictions attached to the map: Roads shall be constructed by seller and each tract shall be assessed $30 per year for maintenance. All roads will be private and will not be maintained by the County. Id. (item lIon page 2 ofExhibit C) (filed for record by Hood County Clerk, September 26, 1983). Another provision states that "[t]hese restrictions shall terminate 20 years from date hereof unless extended by a majority vote ofthe property owners association." Id. (item 14 on page 2 of Exhibit C). lSee generally Letter and Brieffrom Honorable R. Kelton Conner, Hood County Attorney, to Honorable Greg Abbott, Attorney General of Texas (July 20, 2007) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter/Brief]. The Honorable R. Kelton Conner - Page 2 (GA-0594) You state that the Hood County Commissioners Court approved the plat on September 26, 1983. See ide at Exhibit B (Hood County Commissioners Court, Sept. 26, 1983 Meeting Minutes). The minutes of the commissioners court's meeting for that date list as an item for discussion and action "Subdivision Plats Presented for Approval." Id. All members of the commissioners court voted in favor ofa motion "to approve plat ofTHE HILL COUNTRY." Id. The minutes recorded that other subdivision plats were approved and stated that "[n]one ofthe roads in said subdivisions were accepted by the County." Id. In connection with this background, you first ask whether Hood County is required to maintain the roads in Hill Country Estates.2 See ide at 4 (Questions Presented). We begin by· summarizing the law governing county regulation of subdivisions. Local Government Code chapter 232 authorizes the commissioners court to establish requirements for subdivisions, such as the width ofright-of-way on streets or roads and specifications relating to the construction ~f each street or road. See TEX. Loc. GOV'TCODE ANN. § 232.003(1)-(4) (Vernon 2005). The commissioners court may also require the landowner to execute a bond payable to the county judge or his successors with the condition "that the roads and streets and the drainage requirements for the subdivision will be constructed ... in accordance with the specifications adopted by the court; and ... within a reasonable time set by the court." See ide § 232.004(5); see also ide § 232.0045 (financial guarantee in lieu of bond). When the owner of land located outside of city limits divides the land, he must ordinarily have a plat3 of the subdivision prepared in accordance with section 232.001 ifhe divides it to layout: (1) a subdivision ofthe tract, including an addition; (2) lots; or (3) streets, alleys, squares, parks, or other parts of the tract intended to be dedicated to public use or for the use ofpurchasers or owners of lots fronting on or adjacent to the streets, alleys, squares, patks, or other parts. Id. § 232.001(a). The plat must be filed and recorded with the county clerk ofthe county in which the tract is located, subject to the filing and recording provisions of Property Code section 12.002. See ide §232.001(d)-(e); see also TEX. PROP. CODE ANN. § 12.002 (Vernon Supp. 2007). As a prerequisite to recording the plat with the county clerk, the commissioners court ofthe county where the land is 2you ask ifAttorney General Opinion GA-0513 (2007), which deals with a subdivision road in which the public has acquired an interest, establishes county responsibility for Hood County subdivision roads. See Request Letter, supra note 1, at 4. 3Local Government Code section 232.021(8) defines "plat" as "a map, chart, survey, plan, or replat containing a description ofthe subdivided land with ties to permanent landmarks or monuments." TEX. Lac. Gov'r CODE ANN. § 232.021(8) (Vernon 2005). The Honorable R. Kelton Conner - Page 3 (GA-0594) located must approve the plat. See TEX. Loc. GOV'T CODE ANN. § 232.002(a) (Vernon 2005). The commissioners court may refuse to approve a plat ifit does not meet the requirements prescribed by or under chapter 232 or if any bond required under the chapter is not filed with the county. See ide Once a person who seeks to file and record a plat has complied with the statutory requirements, the commissioners court has a ministerial duty to approve the plat and thus authorize its filing. See Comm'rs Ct. V. Frank Jester Dev. Co., 199 S.W.2d 1004,1007 (Tex. Civ. App.-Dallas 1947, writ refd n.r.e.). A commission~rs court's approval ofa plat allows it to be filed in the county records, but it does not convert private roads represented on the plat into county roads or impose on the county a duty to maintain them. See ide Hood County's acquisition of a public interest in a private road is governed by Transportation Code chapter281, which applies to counties with a populationof50,000 or less. See TEX. TRANSP. CODE ANN. § 281.001 (Vernon 1999). The predecessor of chapter 281, adopted in 1981, applied to Hood County when the Hill Country Estates platwas filed in 1983.4 See Act ofJune 1,1981, 67th Leg., R.S., ch. 613, § 6, 1981 Tex. Gen. Laws 2412, 2413 (current version at TEX. TRANSP. CODE ANN. § 281.001 (Vernon 1999)). The predecessor of Transportation Code section 281.002 provided that a county may not acquire any public interest in a private road except by "(1) purchase; (2) condemnation; (3) dedication; or (4) adverse possession." See id § 2(a), at 2412 (amended 1985) (current version at TEX. TRANSP. CODE ANN. § 281.002 (Vernon 1999)). A public interest once established in accordance with the predecessor law had to be recorded in the records of the commissioners court ofthe county in which the road was located. See ide § 2(b), at 2412 (amended 1985) (current version at TEX. TRANSP. CODE ANN. § 281.005 (Vernon 1999)). Under the predecessor law, neither the use of a private road by the public with the owner's permission nor maintenance ofa private road with public funds was sufficient to establish adverse possession. See ide § 5, at 2413 (current version at TEX. TRANSP. CODE ANN. § 281.004 (Vernon 1999)). Since 1985, a county has been able to acquire a public interest in a private road by adverse possession only with·a court's "final judgment of adverse possession." Act ofMay 27, 1985, 69th Leg., R.S., ch. 509,§ 1,1985 Tex. Gen. Laws 2099,2099 (current version at TEX. TRANSP. CODE ANN. § 281.002 (Vernon 1999)). You have provided no information suggesting that Hood County obtained an interest in the Hill Country Estates roads bythe statutorily required methods ofpurchase, condemnation, or adverse possession. We will thus consider whether the county acquired a public interest in these roads by the remaining authorized method of dedication. The predecessorofchapter 281 defined "dedication" as "the explicit, written communication to the commissioners court ofthe county in which the land is located ofa voluntary grant ofthe use ofa private road for public purposes." Act ofJune 1, 1981, 67th Leg., R.S., ch. 613, § 1, 1981 Tex. Gen. Laws 2412, 2412 (current version at TEX. TRANSP. CODE ANN. § 281.003 (Vernon 1999)). It thereby abolished the common-law doctrine ofimplied dedication in counties with a population of 4The population of Hood County was 17,714 in 1980. See United States Census Bureau, U.S. Dep't of Commerce, Population ofCounties by Decennial Census: 1900 to 1990, available athttp://www.census.gov/population/ cencounts/txI90090.txt (last visited Jan. 8, 2008). The Honorable R. Kelton Conner - Page 4 (GA-0594) less than 50,000, as ofits effective date ofAugust 31, 1981. See Lindner v. Hill, 691 S.W.2d 590, 592 (Tex. 1985). A landowner's dedication ofroads for public use will moreover not be effective unless it is accepted on behalf ofthe public. See Ford v. Moren, 592 S.W.2d 385, 390 (Tex. Civ. App.-Texarkana 1979, writ refd n.r.e.). "The recording of a map or plat which shows streets or roadways thereon, without more, does not constitute a dedication, as a matter oflaw, ofsuch streets as public roadways." Id. at 390 (quoting Aransas County v. Rei/, 532 S.W.2d 131,134 (Tex. Civ. App.-.Corpus Christi 1975, writ refd n.r.e.)); see Frank Jester Dev. Co., 199 S.W.2d at 1007. As we have observed, a note on the plat states that "The Hill Country, Ltd. is the owner of the land shown hereon and does hereby dedicate for public use the roads and easements as shown on the above map" and that "[t]he 60 foot roads are not maintained by the county." Request Letter/Brief, supra note 1, at Exhibit C (map attached to Exhibit C). However, the restrictions attached to the plat include the conflicting statements that "[r]oads shall be constructed by seller and each tract shall be assessed $30 per year for maintenance" and that "[a]ll roads will be private and will not be maintained by the County." Id. (item 11 at page 2 ofExhibit C and attached map); see generally Ford, 592 S.W.2d at 392 (there are many subdivisions in which the streets are owned and maintained by the subdivision for the private use of persons owning lots in the subdivision). Yet another provision states that "[t]hese restrictions shall terminate 20 years from date hereof unless extended by a majority vote ofthe property owners association." Request Letter/Brief, supra note 1, at Exhibit C (item 14 at page 2 ofExhibit C). Given the conflicting statements on the plat and in the restrictions, we cannot saythatthere is an "explicit, written communicationto the commissioners court ... ofa voluntary grant ofthe use ofa private road for public purposes."s See Act ofJune 1, 1981, 67th Leg., R.S., ch. 613., § 1, 1981 Tex.. Gen. Laws 2412, 2412 (current version at TEX. TRANSP. CODE ANN. § 281.003 (Vernon 1999)). We see no basis in the information you have provided for concluding that the roads in Hill Country Estates were dedicated to Hood County. Moreover, even if the roads in question were dedicated to the public, they would not be county roads unless the commissioners court accepted the roads into t,he county road system. See Miller v. Elliott, 94 S.W.3d 38, 45 (Tex. App.-Tyler 2002, pet. denied); FrankJester Dev. Co., 199 S.W.2d at 1006-07. "[D]edication is a mere offer" and a commissioners court's approval ofa plat filing that contains a dedication does not constitute an acceptance of the dedication. Langford v. Kraft, 498 S.W.2d 42,49 (Tex. Civ. App.-Beaumont 1973, writ refd n.r.e.; writ dism'd W.O.j.6). Until a county, through its commissioners court, accepts a public interest in a road dedicated in a plat, that road is not a county road. See Miller, 94 S.W.3d at 45; FrankJester Dev. Co., 199 S.W.2d at 1006-07; Tex. Att'y Gen. Ope No. GA-0139 (2004) at 4. Again, you have provided no information or evidence suggesting that the commissioners court has accepted a dedication ofroads 5Instruments such as dedications and restrictive covenants are subject to the general rules of contract construction. Ostrowskiv. Ivanhoe Prop. Owners ImprovementAss 'n, Inc., 38 S.W.3d 248,252 (Tex. App.-Texarkana 2001, pet. denied). Thus, it may not be possible to construe them in an attorney general opinion. See Tex. Att'y Gen. Ope No. GA-0176 (2004) at 2 (this office does not construe the terms ofa particular contract but will address applicable general legal principles). 6Two causes were reviewed in a single opinion. The Honorable R. Kelton Conner - Page 5 (GA-0594) in the Hill Country Estates subdivision. As already indicated, the commissioners court's approval of a plat for filing does not constitute acceptance of a dedication. See Ford, 592 S.W.2d at 390, Frank Jester Dev. Co., 199 S.W.2d at 1007. In answer to your first question, we c'annot conclude that these roads are county roads or that the commissioners court has any duty to provide for their maintenance.7 You also ask a second and third question, which we will answer together: If a county is not required to maintain the roads in a subdivision under Question 1, ifa county commissioner-withoutthe approval of the commissioners' court-uses the county road crew to repair one road in such a subdivision, is the county subsequently obligated to: (a) Maintain only the road or portion ofthe road repaired at the request ofthe commissioner; or (b) Maintain all ofthe roads in the subdivision? Ifevidence subsequently shows that the commissioner in Question 2 performed work on more than one road and/or on more than one occasion, would that alter your opinion concerning the obligation of Hood County to maintain the subdivision roads? Request Letter, supra note 1, at 4. As we have already noted, Transportation Code section 281.002 and its predecessor provide that a county may not acquire a public interest in a private road except by purchase, condemnation, dedication, or adverse possession. See TEX. TRANSP. CODE ANN. §281.002 (Vernon 1999); Act of June 1, 1981, 67th Leg., R.S., ch. 613, § 2, 1981 Tex. Gen. Laws 2412, 2412. Purchase and condemnation are not at issue here, and we have determined in answer to your first question that dedication ofthe Hill Country Estates roads to the public is not demonstrated by the information you have provided. Under Transportation Code section 281.004 and its predecessor, maintenance ofa private road with public funds does not establish adverse possession ofthe road. See TEX. TRANSP. CODE ANN. § 281.004 (Vernon 1999); Act ofJune 1,1981, 67th Leg., R.S., ch. 613, § 5,1981 Tex. Gen. Laws 2412, 2413. Moreover, individual members ofthe commissioners courthave no authority to bind the county by their separate actions. See Exparte Conger, 357 S.W.2d 740, 743 (Tex. 1962), Canales v. Laughlin, 214 S.W.2d 451, 455 (Tex. 1948). We conclude that a county commissioner's maintenance of private roads in Hill Country Estates does not impose on Hood County any obligation to maintain those roads. 7In view of our conclusion that no dedication of subdivision roads is shown, we need not address Attorney General Opinion GA-0513 (2007). The Honorable R. Kelton Conner - Page 6 (GA-0594) SUMMARY A commissioners court's approval of the subdivision plat for filing does not constitute county acceptance of a dedication of roads depicted on the plat. Under Transportation Code chapter 281 counties with a population of 50,000 or less may acquire a public interest in a private road only according to the specific methods set out in that chapter. A road may be dedicated to a county subject to chapter 281 only by an explicit, written communication to the commissioners court. Adverse possession cannot be shown by ~aintenance ofthe road with public funds. KENT C. SULLIVAN First Assistant Attorney General ANDREW WEBER Deputy Attorney General for Legal Counsel NANCY S. FULLER Chair, Opinion Committee Susan L. Garrison Assistant Attorney General, Opinion Committee