Texas Attorney General Opinion: DM-487 Page: 2 of 5
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The Honorable Howard Freemyer - Page 2 (DM-487)
away from her land, but the private landowners do not permit the applicant to transport gravel on
their road. The applicant seeks to have a public road established pursuant to section 251.053.
Subsection (b) of the neighborhood road statute authorizes an application for a public road
when "there is no public road or other public means of access" to the applicant's property. Id.
251.053(b) (emphasis added). Subsection (d), however, provides that an application for a
neighborhood road may be granted if the commissioners court determines "that the applicants do not
have access to their real property and premises." Id. 251.053(d) (emphasis added).
You ask whether the applicant has "access" to her land within the meaning of section
251.053(d) if the applicant has access only by way of another landowner's private road and if the
applicant is prohibited from using the private road for a certain purpose. You also ask whether
granting the applicant's request for establishment of a neighborhood road, and the taking of private
property that would be required to establish the road, would violate article I, section 17 of the Texas
Constitution. Because we conclude that a court would likely find that the neighborhood road statute
is invalid, we do not address your questions regarding what constitutes "access" under the statute.
Article I, section 17 of the Texas Constitution provides: "No person's property shall be
taken, damaged or destroyed for or applied to public use without adequate compensation being
made, unless by the consent of such person ... ." This provision not only requires the payment of
adequate compensation for private property taken for public use, but prohibits the taking of private
property for private use. Marrs v. Railroad Comm 'n, 177 S.W.2d 941, 949 (Tex. 1944).
Section 251.053, the current neighborhood road statute, is a nonsubstantive recodification
of former V.T.C.S. article 6702-1, section 2.006,' which replaced V.T.C.S. article 6711.3 Former
V.T.C.S. article 6711 authorized the establishment of a road from private property to a public
highway if the commissioners court deemed the road to be "of sufficient public importance."4 As
so written, the statute required a finding of public purpose for the taking of private property.
However, in 1953 the statute was amended to eliminate the public purpose requirement and to
authorize the establishment of the road upon a finding that the applicant had "no means of access"
2See Act of May 1, 1995, 74th Leg., R.S., ch. 165, 1, 25, 1995 Tex. Gen. Laws 1025, 1155-56, 1871
(repealing V.T.C.S. article 6702-1, the County Road and Bridge Act, enacting Transportation Code section 251.053,
and providing: "This Act is intended as a recodification only, and no substantive change in law is intended by this
Act.").
3See Act of July 3, 1984, 68th Leg., 2d C.S., ch. 8, 1, 1984 Tex. Gen. Laws 29, 31-32 (repealing V.T.C.S.
article 6711 and reenacting and amending V.T.C.S. article 6702-1); Act of May 20, 1983, 68th Leg., R.S., ch. 288, 1,
1983 Tex. Gen. Laws 1431, 1435-37 (repealing V.T.C.S. article 6711 and enacting the County Road and Bridge Act,
V.T.C.S. article 6702-1).
4Act of March 20, 1930, 41st Leg., 5th C.S., ch. 62, 1, 1930 Tex. Gen. Laws 207, 207.p. 2762
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Texas. Attorney-General's Office. Texas Attorney General Opinion: DM-487, text, November 10, 1998; (https://texashistory.unt.edu/ark:/67531/metapth274296/m1/2/: accessed July 16, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu.; crediting UNT Libraries Government Documents Department.