Untitled Texas Attorney General Opinion
GA-1013
| Tex. Att'y Gen. | Jul 2, 2013Background
- Texas Attorney General provides an opinion on whether Howard County Commissioners Court may require permits and fees for constructing access points to county roads used by oil and gas activities.
- The county experiences increased traffic and road damage from oil and gas operations at private-to-county road intersections (access points).
- Access points can affect drainage, erosion, safety, and long-term maintenance within the county right-of-way.
- Transportation Code Chapter 251 grants authority to counties over road construction and maintenance, including general control of roads and rules for use of public right-of-way.
- The opinion distinguishes permitting authority (251.003, 251.016) from the authority to set fees (251.017), and discusses equal protection considerations if targeting specific industries.
- The opinion concludes that permits may be required and fees may be set, subject to reasonableness and proportionality to impact.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Authority to require permits for access points | Howard County contends authority exists under 251.003 and 251.016 to regulate access within right-of-way. | Abbott contends the county may exercise broad control to regulate road safety and maintenance through permits. | Permits may be required for access points within the county right-of-way. |
| Authority to charge a fee for permits | County asserts a reasonable fee is permissible under 251.017 for permits not otherwise prescribed. | Fees require express authorization separate from general permitting power. | A reasonable permit fee may be set under 251.017. |
| Equal protection when targeting oil and gas access points | Targeting only oil and gas access points must be rationally related to a legitimate state interest. | If all heavy-traffic access points were treated similarly, equal protection concerns would be minimized. | Special treatment of oil and gas access points must be rationally related to legitimate interests; general applicability reduces risk. |
Key Cases Cited
- City of San Antonio v. Boerne, 111 S.W.3d 22 (Tex. 2003) (broad constitutional authority and implied powers)
- State v. NICO-WFJ, L.L.C., 384 S.W.3d 818 (Tex. 2012) (road right-of-way includes the full width; statutory interpretation)
- Allen v. Keeling, 613 S.W.2d 253 (Tex. 1981) (right-of-way may include drainage and maintenance areas)
- Camilla Twin Harbor Volunteer Fire Dept., Inc. v. Plemmons, 998 S.W.2d 413 (Tex. App.—Beaumont 1999) (easement and public right to passage; reasonable control by public)
- Anderson v. Wood, 152 S.W.2d 1084 (Tex. 1941) (implied authority and broad discretion to accomplish purpose)
- Town of Flower Mound v. Stafford Estates Ltd. P'ship, 135 S.W.3d 620 (Tex. 2004) (essential nexus and proportionality for governmental conditions)
- First Am. Title Ins. Co. v. Combs, 258 S.W.3d 627 (Tex. 2008) (equal protection concerns with targeting industries)
- Moore v. Sheppard, 192 S.W.2d 559 (Tex. 1946) (distinct authority required for imposing fees)
- Attorney General Opinion JM-1241, 1990 () (supports authority to take related actions in right-of-way)
- Attorney General Opinion GA-0544, 2007 () (fees generally not implied without specific authorization)