0809992.5
ITEM N0. 2.5
NO ORDER ISSUED
DISCUSSION ONLY
SEE OFFICIAL COURT REPORTERS TRANSCRIPT
REGULAR COMMISSIONERS' COURT AGENDA
MONDAY, AUGUST 9, 1999 - 9:00 A.M.
COMMISSIONERS' COURT AGENDA REQUEST
PLEASE FURNISH ONE ORIGINAL AND NINE COPIES OF THIS REQUEST AND DOCUMENTS
TO BE REVIEWED BY THE COURT.
MADE BY: Larry Griffin OFFICE: Commissioner. Precinct 4
MEETING DATE: August 9, 1999 TIME PREFERRED:
SUBJECT: (PLEASE BE SPECIFIC)
Consider and discuss the County Attorney's opinion on "Repairs to private roads"
(Ref: Memorandum from County Attorney, dated July 22, 1999)
EXECUTIVE SESSION REQUESTED: (PLEASE STATE REASON)
NAME OF PERSON ADDRESSING THE COURT: Commissioner Griffin
ESTIMATED LENGTH OF PRESENTATION: 15 minutes
IF PERSONNEL MATTER -NAME OF EMPLOYEE:
Time for submitting this request for Court to assure that the matter is posted in accordance with Title
5, Chapter 551 and 552, Government Code, is as follows:
Meeting scheduled for Mondays: 5:00 P.M. previous Tuesday.
THIS REQUEST RECEIVED BY:
THIS REQUEST RECEIVED ON:

All Agenda Requests will be screened by the County Judge's Office to determine if adequate information has
been prepared for the Court's formal consideration and action at time of Court Meetings. Your cooperation
will be appreciated and contribute towards you request being addressed at the earliest opportunity. See
Agenda Request Rules Adopted by Commissioners' Court.
MEMORANDUM
TO Commissioner William H. Williams
FROM David Motley
SUBJECT Reparrs to private roads (Shadow Ride Estates)
DATE July 22, 1999
)n response to your memorandum of June 3, 1999, the underlying matters about which you
inquire are not primarily legal in nature. One related legal issue, which should always be
considered when spending public funds, concerns the Constitutional prohibitions against
spending public funds for private purposes. I have set out three relevant Constitutional
sections below for your consideration. There is no general requirement that the wunty
maintain private roads.
The first question ("Do we have a legal basis upon which to act?"), when distilled to its
essence is: "may the Commissioners' Court selectively treat those appearing before it in an
inconsistent manner?" Although the answer to this question may appear obvious, it is an
answer which the Court itself must decide as a policy matter.
The transcript of the Commissioners' Court meeting of May 24,1999, reveals that some
among your number expressed their belief that the key to funding such repairs of private
roads is whether or not the particular case represents "an emergency." The statute in
question (§ 253.003, Texas Transportation Code, set out below) does not mention the term
"emergency," but instead, allows the Commissioners' Court, following a showing of
necessity, notice, a public hearing and an election amongst the record holders in the
subdivision, to fund improvements (broadly defined to include construction and repair) and
assess all record owners of the affected subdivision if the improvement is in the interest of
the public health, safety or welfare" of the residents of the county. It is my opinion that use
of the term "residents of the county" indicates legislative intent that the improvement must
be a benefit to the residents of the county as a whole. A test to determine how beneficial the
expenditure is to the county residents as a whole might be stated as follows: "is the
expenditure of public funds for a legitimate public purpose with cleaz public benefit received
and returned." Further, the "public calamity" exception contained in Art 3, § 51 of the
Texas Constitution, does not seem to encompass the concept of "emergency" as expressed by
members of the Court or the dire need to repair the roads in question. Also provided is a
lien procedure whereby the county could improve their chances for reimbursement for their
costs in improving the road.
As a practical matter, it is probable that the Commissioners' Court could justify their action
authorizing such expenditure by finding it is "in the public health, safety or welfaze" of the
residents of the county. However, consistency and basic fairness, as well as political
considerations, suggest that all such considerations be handled uniformly. The method
contemplated by the statute (as well as other sections in the chapter) does include an
Commissioner William H. Williams
Page 2
Jury 22, 1998
assessment for the costs of the improvement to be assessed against all residents of the
subdivision so the improvement proposed may not be truly be considered as a grant of county
funds but more of an interest-free loan (which itself, has value), if same is accomplished in
compliance with the statutory scheme.
My review of the documentation provided seems to indicate that no such assessment
coincided with Commissioners' Court order no. 25431 on July 13, 1998, which may well be
seen as a public grant of county funds to a group of private citizens. A practical roadblock
to the proposed repair is that it is somewhat unlikely that all the residents of the subdivision
would assent to an assessment solely for the benefit of those subdivision residents adjacent to
the improved roads. It is more likely that they would want all the roads (or those which
directly service their tracts) to be improved before they are assessed for the cost which, of
course would greatly increase the estimate for the repairs.
There are specific methods by which the Court may construct or establish roads in private
areas of the county, but all require some sort of general public benefit or essential and
critical need, notice to affected landowners and some require a local election. Chapter 251,
Texas Transportation Code (at §251.053), the "Neighborhood Roads" statute, allows
landowners, without a public road or other means of access, to petition the Commissioners'
Court to establish a public access road from their property to the county public road system,
following notice, a public hearing, assessment of damages to the property owners and
payment of costs associated with the opening of the road, which shall be initially made
suitable for use as a public access road. Further maintenance of said road by the county is
not required as is the case with all "public roads." The term "public road" generally means
a road which the public has a right to use, with no requirement that the county maintain
same. County maintenance of "public roads" is allowed, however, by bringing them into the
wunty road maintenance system. §251.003, Texas Transportation Code is a permissive
statute giving the Commissioners' Court the ability to fund, build, hire construction,
purchase materials, make and enforce rules and orders necessary to construct and maintain
public roads. Money in the County Road and Bridge Fund may be used only for working
public roads or building bridges, §256.001, Texas Transportation Code.
Precinct residents may apply to the Commissioners' Court for a new road or for a change in
location of an existing road entirely within said precinct, following notice to others in the
vicinity of the proposed road route of the petitioners' intent to make such application. If the
application is approved, a jury of view, with the possible assistance of the County Surveyor,
would actually lay out (determine the location of) the road. There is a notice requirement in
advance of the laying out of the road to the landowners whose property will be bisected by
the proposed road. 'The same jury of view considers each affected property owner's claim
for damages as a consequence of the road and return the damage assessment along with its
report to the Commissioners' Court. The road may not be opened until the Court pays
compensation and damages to these affected landowners and notifies each of the deposit of
the sum (§§ 251.052 & 251.054, Texas Transportation Code).
Commissioner William H. Williams
Page 3
July 22, 1999
Chapter 281, Texas Transportation Code allows a county, by recorded Commissioners' Court
resolution, to acquire a public interest in a private road by purchase, condemnation,
dedication or a judgment finding adverse possession. However, a public interest in such a
private road may not become effective until the private road owner is notified by the Court.
Chapter 257, Texas Transportation Code, at §257.021 allows the Commissioners' Court to
establish road districts, following notice and a public hearing, as a means to fund, through a
special tax, the reimbursement of expenses incurred by a private person to construct a road
which has been or will be dedicated to public use or to purchase an ah eady existing road for
public uses from a private person. The statute also provides for persons to petition the road
district for annexation of their property as well as the annexing of larger territories into such
district.
As for other "legal considerations, it is possible that some protected class member might
assert that he or she was treated disparately by a Commissioners' Court decision concerning
roads in that person's area and proceed accordingly. It only takes a word processor, paper
and a filing fee to file suit.
The second issue which you direct to me is whether or not it is "fair" for residents of
Shadow Ridge Estates subdivision, in order to have their private roads accepted for
maintenance by Kerr County, now be required to improve their roads to current road
standards. The current Kerr County Subdivision Rules & Regulations at 7.10 & 7.11 require
that the developer or homeowner's association (of the subdivision) shall remain responsible
for all maintenance and repair of roads within a subdivision until the Commissioners' Court,
by formal action, accepts the obligation to maintain and repair such roads. Further, the
county shall accept a road for maintenance only when all of 5 specified conditions occur, one
of which is that a road, to be accepted for maintenance by the county, must have been
constructed as a public road in accordance with the regulations and the associated right of
way has been dedicated to the public pursuant to the regulation. At 7.01, the rules set out
what sorts of roads are "permitted roads." At 3.05, all subdivisions approved prior to
acceptance date of (the current subdivision rules & regulations) hereof shall be subject to
rules and regulations effective at the time of preliminary plat approval. This is evidence of
intent of a sort of "grandfather clause" as to roads in platted subdivisions. I found no
counterpart in the rules and regulations of roads to be accepted for county road maintenance.
The plat of Shadow Ridge Estates was approved on December 30, 1982, before the effective
date of the "January, 1984 Subdivision Rules and Regulations," that effective date being
January 1, 1984. The acceptance of maintenance of the roads located in said subdivision was
specifically conditioned upon the residential development (in the subdivision) justifying said
maintenance and further that the subdivision roads must be constructed, paved, drained,
impedibles removed and underground water or electrical lines must be located.
Commissioner William H. Williams
Page 4
July 22, 1999
In section VI of the January, 1984 subdivision rules & regulations, the cost of the required
improvements were to be borne by the subdivision developer. By their own terms, the 1984
rules & regulations did not apply to any subdivision as same existed before January 1, 1984.
Said rules & regulations do not address the situation where residents of an existing
subdivision wish to have their private roads accepted for county maintenance. Also, the
1984 rules & regulations do not have a clause similar to that described in 3.05 of the current
rules & regulations.
In short, it seems that if the residents of Shadow Ridge Estates subdivision wish to have their
private roads accepted for county maintenance, it would be a matter for agreement between
the parties. It may certainly be argued that whatever the current Commissioners' Court
would require for such acceptance must only meet the requirements of Commissioners' Court
Order No. 14873 as to the standards to be met by the residents before their roads are
accepted. The terminology used in said order is not particularly definite e.g. the roads must
be "constructed" and "paved." With no specific definitions or standards in place for this
sort of situation prior to January 1, 1984, the ultimate arbiter of what is required would be
the District Court. The county would likely require that current standards be met prior to its
acceptance of maintenance of the roads. I do not see any rule or regulation which would
require the county to accept a lesser standard. Should the parties fail to agree on this critical
issue, the subdivision residents must either accept the county's requirements before the
residents take on the financial burden of improvements greater than what might have been
considered typical in 1982 or be prepared to litigate the matter. The county has a financial
interest in not accepting "substandard" roads into its maintenance system and later having to
bring the roads up to today's standards before performing routine maintenance then~n.
Commissioner William H. Williams
Page 5
July 22, 1989
TRANSPORTATION CODE §253.003, Proposal for County Improvement of
Subdivision Roads and Assessment of Costs
V.T.C.A., Transportation Code $ 253.003
VERNON'S TEXAS STATUTES AND CODES ANNOTATED
TRANSPORTATION CODE
TITLE 6. ROADWAYS
SUBTITLE C. COUNTY ROADS AND BRIDGES
CHAPTER 253. COUNTY IMPROVEMENT OF SUBDIVISION ROADS
Current through End of 1997 Reg. Sass.
§ 253.003. Proposal for County Lnprovement of Subdivision Roads and Assessment of
Costs
If the commissioners court of a county determines that the improvement of a road in a
subdivision or of an access road to a subdivision is necessary for the public health, safety, or
welfare of the residents of the county, the commissioners court may propose to:
(1) improve the mad to comply with county standards for roads; and
(2) assess all or part of the vests of the improvement pro rata against the record owners
of the real property of the subdivision.
TX CONST Art. 3, 51, Grants of public money prohibited; exceptions
Vernon's Ann.Texas Cosst. Art. 3, § 51
VERNON'S TEXAS STATUTES AND CODES ANNOTATED
CONSTITUTION OF THE STATE OF TEXAS 1876
ARTICLE III. LEGISLATIVE DEPARTMENT
REQUIREMENTS AND LIlVIITATIONS
Current through End of 1997 Reg. Sass.
§ 51. Grants of public money prohibited; exceptions
Sec. 51. The Legislature shall have no power to make any grant or authorize the
making of any grant of public moneys to any individual, association of individuals, municipal
or other corporations whatsoever; provided, however, the Legislature may grant aid to
indigent and disabled Confederate soldiers and sailors under such regulations and limitations
as may be deemed by the Legislature as expedient, and to their widows in indigent
Commissioner William H. Williams
Page e
July 22, 1999
circumstances under such regulations and limitations as may be deemed by the Legislature as
expedient; provided that the provisions of this Section shall not be wnstrued so as to prevent
the grant of aid in cases of public calamity.
TX CONST Art. 3, 52, Counties, cities, towns or other political corporations or
subdivisions; lending credit; grants; investment of funds
Vernon's Ann.Texas Const. Art. 3, § 52
VERNON'S TEXAS STATUTES AND CODES ANNOTATED
CONSTITUTION OF THE STATE OF TEXAS 1876
ARTICLE III. LEGISLATIVE DEPARTMENT
REQUIREMENTS AND LIlVIITATIONS
Current through End of 1997 Reg. Sass.
§ 52. Counties, cities, towns or other political corporations or subdivisions; lending
credit; grants; investment of funds
Sec. 52. (a) Except as otherwise provided by this section, the Legislature shall have no
power to authorize any county, city, town or other political wrporadon or subdivision of the
State to lend its credit or to grant public money or thing of value in aid of, or to any
individual, association or corporation whatsoever, or to become a stockholder in such
corporation, association or company. However, this section does not prohibit the use of
public funds or credit for the payment of premiums on nonassessable life, health, or accident
insurance policies and annuity contracts issued by a mutual insurance company authorized to
do business in this State.
(b) Under Legislative provision, any county, any political subdivision of a county, any
number of adjoining counties, or any political subdivision of the State, or any defined district
now or hereafter to be described and defined within the State of Texas, and which may or
may not include, towns, villages or municipal corporations, upon a vote of two-thirds
majority of the resident property taxpayers voting thereon who are qualified electors of such
district or territory to be a„~`ected thereby, in addition to all other debts, may issue bonds or
otherwise lend its credit in any amount not to exceed one fourth of the assessed valuation of
the real property of such district or territory, except that the total bonded indebtedness of any
city or town shall never exceed the limits imposed by other provisions of this Constitution,
and levy and collect taxes to pay the interest thereon and provide a sinking fund for the
redemption thereof, as the Legislature may authorize, and in such manner as it may authorize
the same, for the following purposes to wit:
(1) The improvement of rivers, creeks, and streams to prevent overflows, and to permit
of navigation thereof, or irrigation thereof, or in aid of such purposes.
Commissioner William H. Williams
Page 7
July 22, 1999
(2) The construction and maintenance of pools, lakes, reservoirs, dams, canals and
waterways for the purposes of irrigation, drainage or navigation, or in aid thereof.
(3) The construction, maintenance and operation of macadamized, graveled or paved
roads and turnpikes, or in aid thereof.
(c) Notwithstanding the provisions of Subsection (b) of this Section, bonds may be issued
by any county in an amount not to exceed one fourth of the assessed valuation of the real
property in the county, for the construction, maintenance, and operation of macadamized,
graveled, or paved roads and turnpikes, or in aid thereof, upon a vote of a majority of the
resident property taxpayers voting thereon who are qualified electors of the county, and
without the necessity of further or amendatory legislation. The county may levy and collect
taxes to pay the interest on the bonds as it becomes due and to provide a sinking fund for
redemption of the bonds.
(d) Any defined district created under this section that is authorized to issue bonds or
otherwise lend its credit for the purposes stated in Subdivisions (1) and (2) of Subsection (b)
of this section may engage in fire-fighting activities and may issue bonds or otherwise lend
its credit for fire-fighting purposes as provided by law and this constitution.
(e) A county, city, town, or other political corporation or subdivision of the state may
invest its funds as authorized by law.
TX CONST Art. 3, 52-a, Assistance to encourage state economic development
Vernon's Ann.Texas Const. Art. 3, § 52-a
VERNON'S TEXAS STATUTES AND CODES ANNOTATED
CONSTITUTION OF THE STATE OF TEXAS 1876
ARTICLE III. LEGISLATIVE DEPARTMENT
REQUIItEMENTS AND LIMITATIONS
Current through End of 1997 Reg. Sass.
$ 52-a. Assistance to encourage state economic development
Sec. 52-a. Notwithstanding any other provision of this constitution, the legislature may
provide for the creation of programs and the making of loans and grants of public money,
other than money otherwise dedicated by this constitution to use for a di~`erent purpose, for
the public purposes of development and diversification of the economy of the state, the
elimination of unemployment or underemployment in the state, the srimulation of agricultural
innovation, the fostering of the growth of enterprises based on agriculture, or the
developmetu or expansion of transportation or commerce in the state. Any bonds or other
Commissioner William H. Williams
Page 8
July 22, 1888
obligations of a county, municipality, or other political subdivision of the state that are issued
for the purpose of making loans or grants in connection with a program authorized by the
legislature under this section and that are payable from ad valorem rases must be approved
by a vote of the majority of the registered voters of the county, municipality, or political
subdivision voting on the issue. An enabling law enacted by the legislature in anticipation of
the adoption of this amendment is not void because of its anticipatory character.
[emphasis added]
Although some of the above-quoted statutes use the terms "Legislature" and "State," for the
purpose of the proposed expenditure and the Constitutional prohibitions concerning same, the
Court should consider the following language from the Texas Supreme Court opinion in
Bexar County v. Linden, 220 SW 761 (Tex. 1920):
"the relation which the wunties of the State bear to the sovereignty of the State;
upon their character as mere political subdivisions of the State; created for the
convenience of the people and for the purposes of local government, but for the
exercise of essentially State powers as distinguished from municipal powers; and,
with their conferred powers having the nature of duties rather than privileges,
existing as but agencies of the State for the effective dischazge through local officers
of the governmental obligations of the State. The use of the counties of the State as
a means of government is a use by the State and for the State as a sovereignty."
DM/s
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