Texas Attorney General Opinion: GA-128 Page: 2 of 6
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The Honorable Kenneth Armbrister - Page 2
You first ask "who is responsible for maintenance . . . of the county road."' The
correspondence enclosed with your letter notes that "[s]ince January, 1999, the landowners [and]
those of us who have property [and] cattle operations on this road have contributed to the
maintenance. This includes adding road material, grading [and] cattle guard repair."2
We believe, based on the judgment in the Landgrafcase and the unbroken history of county
maintenance until 1999 reflected in the record, that a court would find that River Road is a county
road. The judgment in the Landgraf case declares that River Road is public by virtue of implied
dedication and prescriptive easement. Moreover, it appears that the county has impliedly accepted
that dedication by maintaining the road since the 1920s. Id. (Plaintiff s Original Petition at 3). See,
e.g., Lindner v. Hill, 691 S.W.2d 590, 592 (Tex. 1985) (fact that owner had allowed county to
maintain road showed offer and acceptance of dedication); City of Waco v. Fenter, 132 S.W.2d 636,
637-38 (Tex. Civ. App.-Waco 1939, writ ref'd) (circumstances to be taken into consideration in
question of acceptance of alley include "that it has been improved for use as a thoroughfare"); Tex.
Att'y Gen. Op. No. JM-200 (1984) at 4 (acceptance may be implied from county maintenance).
A commissioners court "may not discontinue a public road until a new road designated by
the court as a replacement is ready to replace it." TEX. TRANSP. CODE ANN. 251.051(c) (Vernon
1999). "Discontinue," for the purposes of chapter 251, means "to discontinue the maintenance of
the road." Id. 251.001(2). Furthermore, a commissioners court must discontinue a road by order.
Id. 251.051(a).
The record suggests that the Refugio County Commissioners Court has taken no formal
action of the sort mandated by section 251.051 to discontinue River Road's maintenance. Rather,
on two separate dates, the county attorney issued letters indicating the county's intent to cease
maintaining the road.3 Accordingly, the commissioners court may not permanently cease the
maintenance without doing so formally by order and without designating a replacement.
However, as the Dallas Court of Civil Appeals wrote in 1952 in Hill v. Sterrett, 252 S.W.2d
766, 770 (Tex. Civ. App.-Dallas 1952, writ ref'd n.r.e.), "The Commissioners' Court possesses a
broad discretion in the accomplishment of a constitutional objective; ... for instance, maintenance
of public roads." Id. (citations omitted). The decision as to how and where to expend limited public
funds or to use limited resources is a classic case of governmental discretion. Absent a showing of
abuse of that discretion, this decision is one for the commissioners court to make. "No principle of
law is better settled than that acts of discretion and findings of fact on the part of public officers to
'Letter from Honorable Kenneth Armbrister, Chair, Senate Committee on Natural Resources, to Division Chief,
Opinion Committee, Office of the Attorney General (June 17, 2003) (on file with Opinion Committee) [hereinafter
Request Letter].
2Letter from Mr. Joe Custer, to Honorable Kenneth Armbrister, Texas State Senator (June 10, 2003) (on file
with Opinion Committee) [hereinafter Custer Letter].
3Letters from Honorable Robert P. McGuill, Refugio County Attorney, to Whom It May Concern (June 15,
2000) (May 18, 1999) (on file with Opinion Committee).(GA-0128)
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Texas. Attorney-General's Office. Texas Attorney General Opinion: GA-128, text, December 12, 2003; (https://texashistory.unt.edu/ark:/67531/metapth275024/m1/2/: accessed April 26, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.