The Test of Time
Counties Offered Limited Opportunity to Adopt Official County Road Maps
July 2006
Texas counties 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 expires Sept. 1, 2009.
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.
“If there’s any way that you can take advantage of this, then I encourage you to do so,” said Eastland County Judge Brad Stephenson.
Throughout the years Eastland County has expended countless man hours and litigation dollars trying to determine on a case-by-case basis “what is a county road,” Stephenson said. In fact, the county spent $20,000 to $30,000 on one road-related lawsuit.
Eastland County spent approximately $20,000 using an outside consultant to develop its county road map, which is now complete. That cost should be compared to what a county could spend – or lose – in a lawsuit, Stephenson maintained.
“I believe this expenditure was money well spent,” he said. “We now know with a great degree of certainty what roads are or are not owned by the public. We also know where our maintenance responsibilities lie.
“As Texas’ population is expected to double over the next 20 years, I believe we will be very proud of the investment we have made,” Stephenson said.
The overall cost depends on several factors including road miles. However, due to the timeline, these costs are spread out 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.
Stephenson said the project “is absolutely worth the cost.”
A Classic Example of the Problem
Eastland County is just one of many counties that have been challenged by landowners regarding the status of a county road.
Real County was put to the test in what Bass calls “a classic example” of the kind of problem that called for a legislative solution. Around 1992, new landowners who had acquired land in 1981 denied use of a road that was used by the public to gain access to a rural subdivision.
A lawsuit was filed, and after a lengthy trial, Real v. Sutton, the road was declared to be a public road rather than a private road. Real County was awarded approximately $125,000 in attorneys’ fees. However, on appeal, the case was reversed, and the county lost the road and the attorneys’ fees judgment.
“These cases are a nightmare when you get to court,” Bass said.
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:
- purchase;
- condemnation;
- 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 and harder to come by,” Bass said.
In Eastland County, there is only one commissioner who was alive during that time frame and who could provide testimony, Stephenson said.
“The problem is one that accelerates with time,” he added.
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, Bass said.
Losing the right to maintain such roads could affect the rights of interior landowners who need those roads to reach their property.
Defining HB1117
Chapter 258 of the Transportation Code, created by HB1117, 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, said Charles Kimbrough, attorney with Bickerstaff, Heath, Pollan and Caroom, LLP.
Many questions have been posed regarding the scope of HB1117 – what it is, and what it isn’t.
HB1117
is a mechanism to be used by counties to adopt a county road map listing the roads the county
currently maintains.
HB1117
is not an opportunity to expand ownership, whether through increased lane miles or rights of way.
“It’s where you are
today,” Kimbrough said. “What you’ve currently got on the ground is what you can claim.”
Counties are not interested in having more roads, Stephenson said, but rather “we want to delineate what is or what is not a county road.”
The legislation
does not create a “taking” by the county and
does not affect true issues of title. Rather, it clarifies the public’s right to use the road and the county’s right to use public funds to maintain the road.
In addition, HB1117
does not allow any taxing authority to tax a private interest in a road on the map or property “burdened” by a road, except in the case of mineral interests. Should the county provide an order stating it has “abandoned” the road, or ceased maintaining the road, then ad valorem taxes may be assessed upon the land previously burdened by the abandoned road.
Considering Implementation
Hood County Judge Andy Rash said his county uses a unified road system, and HB1117 should assist in identifying the roads under the county’s responsibility.
“We are in the process of developing a county map,” said Rash. Hood County contracted with an outside source to create the map and will spend approximately $9,750, not including in-house man hours spent gathering information.
“It is my understanding that this map will legally establish what are county roads,” Rash said.
When considering the legislation, which applies to all counties regardless of size, counties need to ask themselves whether or not they can legally prove their claim to their county roads, Kimbrough said.
“It’s a frank and harsh reality that most rural counties do not keep maintenance records,” Stephenson said. “Oftentimes there are no daily logs or maintenance records, certainly none that go back to 1971.”
In Eastland County, more than 99 percent of the county roads were acquired by prescriptive easement, Stephenson added.
Without a title, deed, or other piece of physical evidence, or firsthand testimony, all the county has is an argument, Kimbrough said. HB1117 will give counties substantiation to back their argument, “allowing you to legally prove what you claim.”
“It’s a new tool that we’ve never had before,” Bass said, “and this one will be gone in about three years.”
Stephenson encouraged every commissioners court to do a significant analysis of what the county has in its road inventory and how much of it was actually deeded or dedicated property.
“Even if you haven’t had the problem, there’s a strong possibility you will,” he said.
Implementation
Developing a County Road Map:
The first step toward implementation is creating an accurate map including each road in which the county claims the existence of a public interest, pursuant to Chapter 281 of the Transportation Code or other law, or as a result of long-term maintenance of the road using public funds beginning prior to Sept. 1, 1981, up to the present.
The statute requires the map to use a scale of 2,000 feet per 1 inch.
To really manipulate the road data, you need a computer-based map,” Bass said.
Along with in-house data, both Kimbrough and Bass recommended requesting digitized data from the Texas Department of Transportation and the county’s council of governments.
“It would be great if you get data from both of them and then measure the roads you claim against theirs,” Kimbrough said.
Counties who do not have the resources to develop the map may want to consider hiring an outside source.
Informing the Public:
Before adopting the map, the county must issue two notices.
One notice should run in a newspaper of general circulation in the county. The statute requires the notice, which must run once a week for four consecutive weeks, to include:
- a statement that the commissioners court has proposed a county road map that includes every road in which the county has claimed a public interest;
- the location where the map will be on display at the courthouse for public view; and
- the date of a public meeting to allow for public comment.
The map – which must be legible – should remain on display from the date of the first published notice until the commissioners court formally adopts the map.
In addition, the county is required to include a notice in the ad valorem tax statement the year before the map is to be adopted. This notice must include:
- a list of all of the roads in which the county will claim the existence of a public interest;
- the date of the public meeting to allow for public comment; and
- a statement regarding the right of a landowner to protest the inclusion of a road on the map.
Public Hearing:
The commissioners court must conduct a public hearing, at which citizens have the opportunity to verbally protest the inclusion of roads on the county road map or present a written protest.
“It gives every taxpayer the opportunity to say, ‘No, this isn’t a county road, and we don’t want it to be on the road system,’ ” Stephenson said.
In Case of a Protest:
If a landowner or interested party protests the map, the commissioners court must appoint a jury of view. This jury should consist of five property owners who have no interest in the outcome. During a separate public hearing, the jury of view, after hearing evidence from the protesting land owner and the county in support of its claim of the public nature of the road, will use a majority vote to determine whether or not the county has a valid claim of public interest. The finding by the jury of view is binding on the county and may require revision of the map.
Adopting the Map:
The final map, after any changes made through the process of public hearing and/or jury of view, may be adopted in a regular session of the commissioners court which must take place before the 90th day following the first public hearing.
Final Public Notice:
Once the map is adopted, the county must include a notice in the ad valorem tax statement for the year after the county adopts the map. This notice must include:
- a list of all roads in which the county has claimed a public interest and has included on the map;
- the date of the map’s adoption; and
- the date at which the statute of limitations bars a landowner from filing a suit in district court to dispute the county’s claim.
Post-Adoption Protest:
Upon adoption, a protesting landowner has two years to file suit in the district court protesting the inclusion of a road on the map, during which time the county still has the burden of proof. If a protesting landowner files suit after the two-year period, the county can assert the two-year statute of limitations, and the burden of proof shifts from the county to the landowner.
Once the county road map is adopted – and survived the two-year statute of limitations – the county won’t have to go to the courtroom to prove its case. Instead, Stephenson said, “we’ll just show them the map.”
Julie Anderson, Editor
