Section 251.153, Transportation Code permits a Commissioners Court to “establish load limits for any county road or bridge.” This same power is reiterated in Section 621.301 but provides an exception for vehicles that have obtained certain state permits. In Scurlock Permian Corp. v. Brazos County, 869 S.W. 2d 478 (Tex. App. – Houston (1st Dist.) 1993, writ denied), the courts held that state overweight permits were extended to county roads. This ruling effectively ended the ability of counties to require prior permits for overweight trucks that have a state permit. With a state permit, a truck can travel county roads with loads up to 10 percent of the design capacity of the truck (84,000 pounds for an 18-wheeler) without regard to the load limits of the road. Although counties retain the ability to require local permits for loads exceeding the state permit, county taxpayers incur millions in damages from these state-permitted trucks on an annual basis.
This legislation and court ruling effectively limited counties to a civil action for road damage under Section 251.160, Transportation Code. This section imposes liability upon an operator and owner of a vehicle for damage sustained by a road or bridge as a result of the negligent operation of the vehicle. This statute can be effective when the specific vehicle can be identified. Unfortunately, most counties do not have sufficient enforcement programs to apprehend, identify, and weigh offending vehicles.
In recent years, counties have expanded their use of county road use agreements to repair roads and bridges damaged by overweight loads. These agreements are particularly effective for specific projects (oil and gas drilling, pipelines, high-voltage transmission lines, wind and solar farms, and aggregate operations). These projects usually involve excessive weights for construction and/or operations with loads that may exceed 200,000 pounds. They usually involve high county road usage by overweight trucks for a limited period of time. These projects may require local notice and/or hearings or may inquire concerning road crossings. Consequently, they are easily observed and identified.
The Commissioners Court should be prepared to submit a draft road use agreement to these projects. There are some basic elements that should be included in a road use agreement.
The agreement should authorize the transport of defined maximum loads on the listed county roads for a specific term of months. It should contain specific provisions for protection of any bridges. A pre-construction report of present road conditions should be prepared by an engineer for the county with the maximum damage estimate for the allowed loads. A post-construction report should be prepared by the engineer with the amount required for damage repair.
The applicant agrees to pay the cost of the damage as certified by the engineer with a surety bond attached in the amount of the estimated maximum damage. Effective 9/1/25, the county must accept a surety bond and cannot require a cash bond on pipeline construction projects. The post-construction damage should be repaired by the county or its contractor but may contain an option for repair by the applicant.
Road use agreements provide an effective tool for the remediation of county roads for damage from overweight trucks, especially for specific projects or operations. They also enable an entity to efficiently engage in a project without risk of delivery interruption from enforcement or litigation. These agreements should be prepared by experienced legal counsel. Counties may assess the cost of legal assistance to the applicant, but they often absorb this cost for taxable projects.
For more information, please call me at 1-800-733-0699.
