Texas counties may still have a window of opportunity to legally clarify the public interest in long-maintained roads, a measure that could save counties hundreds of thousands of dollars in litigation costs. House Bill 1117 passed by the 78th Texas Legislature went into effect Sept. 1, 2003, and will expire Sept. 1, 2009. The 81st Texas Legislature passed House Bill 2462 extending this expiration date to September 2011. The bill was sent to Gov. Rick Perry on June 3, and as of press time was still awaiting his signature.
Implementation of the bill, a discretionary measure found in Chapter 258 of the Transportation Code, allows counties to prepare and adopt an official county road map. This map serves as conclusive, legal evidence of a county’s claim to a road and the county’s right to spend public money on the road.
The overall cost depends on several factors including road miles. However, due to the timeline, these costs are spread over multiple budget years.
In addition, the data used to develop the county road map will have multiple uses to the benefit of the county.
“Don’t look at it as simply a road map,” said attorney Bob Bass, with Allison, Bass & Associates, LLP, of Austin. “This ought to be viewed as a dynamic set of data that you can use over and over again.”
For example, the collected information can be used to develop a cost-analysis tool for road budget and road maintenance, to assist in GASB 34 compliance, or to help with homeland security planning.
A Race Against Time
Prior to 1981, case law found that if a road was used by the public and maintained by the county for more than 10 years, the road became a county road. This process is called prescriptive easement, or the legal right to use another person’s property by continued use without objection by the landowner.
In 1981, Chapter 281 of the Transportation Code took away the ability of counties of 50,000 people or less to acquire a road by prescriptive easement. As of 1981, these counties can only acquire an interest in a road by:
dedication of a landowner; or
final judgment of adverse possession under the law. Chapter 281 explicitly states that, in this case, adverse possession is not established by public use of a private road with permission of the landowner, or public maintenance of a private road in which the public interest is not recorded.
Each of these four methods requires a clear action by the commissioners court.
Texas law allows property owners to challenge the status of a pre-1981 prescriptive easement road by either placing a locked gate on the road or by filing a lawsuit. The county must then prove that the road was maintained by the county for 10 years and acquired by prescriptive easement. The proof necessary for establishing prescriptive rights prior to 1981 is getting harder to come by.
As time progresses and counties are unable to produce personal testimony and firsthand knowledge of pre-1981 maintenance, counties will be more and more likely to lose in court. Losing the right to maintain such roads could affect the rights of interior landowners who need those roads to reach their property.
In summary, Chapter 258 of the Transportation Code created by the original legislation gives commissioners courts the authority to adopt a proposed county road map and include on the map every road in which the county claims a public interest, including roads established by prescriptive rights prior to 1981.
Editor’s Note: Pending the signature of the governor, County Progress will provide an in-depth look at this legislation and the development of a county road map in an upcoming issue.