I have a road in a subdivision that was platted in the seventies wherein the developer dedicated the "streets, alleys, and passageways" to the public. The court accepted the plat with the disclaimer that it would not be responsible for the roads. Since that time, only the main road through the subdivision has been maintained and brought into the county road system. However, many of the platted side roads have not been maintained by the county nor are they part of our road system. My problem is that a landowner has put in speed bumps on one of these side roads that the county does not maintain. The landowner at the end of this road is quite upset about the speed bumps and has ended up in my office. By the way, we have adopted a county road map indicating all county roads in the county.
Since the road was expressly dedicated to the public but never maintained by the county do I have a duty to deal with any possible obstructions of the road? I am thinking the answer is no. Because the county has never exercised control or spent any funds on this particular road and most recently did not include it in our road map adoption. Any thoughts or comments would be appreciated.

From what I can tell, you never accepted it, never maintained it, and never claimed it - therefore you owe it no duty of support!

The squabble, lawsuit, or horseshoe contest is between the landowners on the road...you have a spectator seat! it may be public, but that doesn't mean it's your responsibility.

Lisa L. Peterson
Nolan County Attorney

Thank you for confirming my thoughts. Long live dirt law!

LIsa, I don't know dirt law or road law from sand law, but why wouldn't PC Sec. 42.03 apply if it is a public road? And if it is a public road, why wouldn't the county need to keep it free from obstructions for members of the public?

Note 6 under 42.03, Penal Code, contains enough cases to state somewhat definitively (for road law this is considered rock solid) that this road is not protected by 42.03.

Lisa's position is very logical and makes perfect sense, BUT you should also take a look at AG Op. No. GA-0513 (2007). It deals with a county which accepted a plat in 1983 and the Comm'n Ct stated in the order of acceptance "...such acceptance shall impose no duty upon the County concerning maintenance or improvement of the streets and roads" described in the plat. However, the AG opined that "where a county accepts in writing a public road dedication made in a subdivision plat, such acceptance is effective to include the roads into the county road maintenance system, even though the county also refuses at the same time to maintain or improve the roads". So you will want to look very closely at the language in your order. See also the Kunefke v. Calhoun County case cited therein. Based on the info in your post, you may be stuck with having the roads included in your county road maintenance system under the AG's analysis. I like Lisa's opinion because it tracks the true intent of the commissioners, but who knows what the courts would do.

[This message was edited by Mark Pratt on 02-19-09 at .]

I think that the situation being presented here and the one in AG-0513 are different. As I understand John's description, his COmmissioners not only used the disclaimer in accepting the plat but have never touched the road in question. In the second page of the opinion, the recitation of facts states that "(a)nd indeed you note that for some period of time, the roads in Tall Timber Estates were not maintained by the county , until about ten years ago when the commissioner...started to maintain the roadways." It is my opinion that this is what forces Hill County to accept these roads and undermines the qualified acceptance. I believe that, as long as the qualifications placed on accepting the roads are relatively specific AND the commissioners stay off of them until those conditions are met, that the County has no responsibility.

I agree with Ray that this road is not protected by PC 42.03; however, the class of roads which are county roads is a subset of those roads which are public. After all, interstate highways are public, but obstructions on them are not county responsibilities. Likewise, obstructions on a passageway used by a couple of neighboring ranchers and never maintained by government is not the problem of government, even though the public may have a right of passage through it.

Just my thoughts...and I make no claims to being an awesome legal mind...

Lisa L. Peterson
Nolan County Attorney

Lisa, you certainly do have a great mind. And I think your position that John's roads are not public has a good shot in court. However, as for the AG's opinion in GA-0513, they unfortunately stated "Therefore, in answer to your second question, where a county accepts in writing a public road dedication made in a subdivision plat, such acceptance is effective to include the roads into the county road maintenance system, even though the county also refuses at the same time to maintain or improve the roads." This was done without any reference to the county touching the roads. And the AG has previously stated that a single commissioner cannot bind the entire commissioners court with his actions and make a road a county road, although it could be evidence to show it is a public road. In any event, I agree that they should not be public roads and it sounds as if it might be worth the fight in John's case.

Please see GA-0594 where the AG made 180 degree turn on county road maintenence.

You're right. The facts in GA-0594 could have just been distinguished from GA-0513 due to the lack of a clear dedication to the public by the developer in 0594. Then they could have made the non-public determination on that basis alone. But you are correct that the subsequent discussion varies from that in 0513. Frankly, the AG could have avoided the discussion of that same topic in 0513 had they ruled on the basis of the county working on the road in that case, as pointed out by Lisa. Neither opinion was squarely faced with the issue of the wording of the acceptance alone. Once again, you gotta love those road opinions!

Is there any law that contradicts and overrules Kunefke v. Calhoun County?


We have a fact situation nearly identical to that posted by John Dodson at the beginning of this thread.

The Kunefke opinion seems to present an obstruction to any argument against taking on the removal of the obstruction on the road (and, goodness gracious me, maintaining these roads even if the plat remains undeveloped??)

Lisa, we know "The Road Goes On Forever". Does this opinion (and the OAG opinions referenced above in the thread) mean the continuing obligation of the county for dedicated streets in any accepted plat goes on forever, too? And how can we ever accept any plat without accepting the roads dedicated therein? (It looks like the OAG says a conditional acceptance doesn't work, either.)

I am completely confused.