Opinion No.
Background
- Texas Transportation Code §251.053 allows a commissioners court to declare a line a public road after an owner application and a public hearing; it provides for damages and compensation.
- Attorney General DM-487 (1998) concluded §251.053 is unconstitutional on its face for private use takings under Art. I, §17 and urged voidness.
- The Legislature reenacted §251.053 multiple times; the AG opinion reasoned it would violate constitutional limits on public use and compensation.
- The current opinion holds §251.053 is not facially unconstitutional and may be used consistently with Art. I, §17 if proper facts show public use and adequate compensation.
- The ultimate question of whether a particular use under §251.053 is a public use remains a judicial question decided by the courts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is §251.053 facially unconstitutional on private-use takings? | DM-487 contends unconstitutional on its face. | Legislature intended compliance with the constitution; not facially void. | Not facially unconstitutional. |
| Can §251.053 be used in a manner consistent with Art. I, §17 with adequate compensation? | DM-487 would strike down; no adequate compensation under private-use takings. | Statute may authorize public-use road declarations with proper facts and compensation. | Yes; constitutional if used consistently with Art. I, §17 and adequate compensation. |
Key Cases Cited
- Maker v. Lasater, 354 S.W.2d 923 (Tex. 1962) (scope of public-use takings under predecessor statute; ultimate use is judicially determined)
- Barshop v. Medina Cnty. Underground WaterConservation Dist., 925 S.W.2d 618 (Tex. 1996) (facial vs. as-applied challenges; constitutional scrutiny)
- Tex. Workers' Comp. Comm'n v. Garcia, 893 S.W.2d 504 (Tex. 1995) (facial/unconstitutional challenges; standard of review)
- Koonce v. Brite Estate, 663 S.W.2d 451 (Tex. 1984) (necessity-type access and public-use considerations)