Case Information
*1 The Attorney General of Texas Decenlher 21, 1984 “H MAlTOX I torney General Eonorablc Mike Driscoll Opinion Ho. JM-262
: proms cowl Bulkmg Rerrir County Attonwy 0.Box12s48 Re: klaximum bond which a county 1001 Prceton, Suite WI 4uetln. lx. 78711.2s4e jl2/47.MSO1 may require of subdividers Rouaton. Texas 7700:! 1.x 010@7+1a7 and/or main- IkopiU s12147saw retieace of roadr
Dear Hr. Driecoll:
You have requested an opinion this office on the following from qu&tioa:
What 1; the maxicnm emouht of bond that [Harris] Cwnty may require of subdividere for the proper construction and/or mainteoance of roads?
In the brief preparr,d by your office, you inform us that your inquiry arises from an apparent conflict among four statutes -- erticles 6626a. 6626a.l. 670:!-1, V.T.C.S.. and the Rarria County Road Law, a Specie1 Law ,of the Zbirty-third Legislature. Acta 1913, 33rd Leg., P-4 Bm4dwy. Bull4 312 Local 6 Special Laws, ch. 17, et 64. 44lcock. TX. 7mc14479 ,An47.5230 two of statutes Articlea 6626a and 6626a.l. forming the basis your inquiry, were! repealed in whole by the legisletura during m N. Tsnlh. SW9 B special sesrioa of 1984. 1984. 68th Leg., 2nd C.S., ch. 8, Act6 CAllen. lx 7Mol.lMs )2(b), et 145. The language of these articles, however, was reenacted 512m24!547 2.401 and. 2.402 of the revised County Road and Bridge Act as aectione Acts 1984.
(article 6702-1). at 73-78. Consequently, conflict betveen‘artlcles 6626e. 6 26e.l. T end the forncr version 2.401 of tL! original County Road sod Bridge Act sectloo is oo longer a matter of concern. The issue that does r-in for our consideration is whether revised article 6702-l iierris County Road Lav controls in this incltancs.
The Harris County Road Law ves enacted by the Thirty-third Legislature pursuan(: to itr authority granted by article VIII, section 9 of Texa.r Conrtltutiw to pass local laws for the maintenance of public reeds and hi:ghwaya. Special law eoaeted uader this constitu- tional provieion supersede conflicting general laws. at least with respect tb the county designated by the special Bill County v. law.
Honorable Hike Driscoll - Page 2 (JM-262)
Bryant 6 iiuffman. 16 S.U.2d 513 (Tu. 1929). Section 33 of the Aerris County Road Lav achowledger thir rule:
The provisions ,this Act are, and shall be, held and construed ta be cumulative of all Ceneral
Laws of thia State, tm the subjecta treated of
this Act, when not in conflict therewith. but
case of such conflict this Act &all control as to
Rarris County. In our opinion. however. where there is no conflict between e general a special lav, or where the special law la rilent on a rubject the general la? should not be treated explicitly by the gene:ral law.
displaced.
Purthemore , special laws enacted under article VIII. section 9 the Texas Constitution grent comissionera court not only control over the maintenance c’f cxiatian uublic roads. but also over laying out and constructim of new &lic roada by the county as vell. 91 S.W. Dallas County v. Plownq 221. 222 (Tu. 1906). Public are those roedr cst,ablished by authority comissioners court. by prascrl~ption, or dy dedication and-acceptance by the county. Attorney Ceaerrk:L Opinion Jl4-200 (1984) and casee cited therein. These principles. too. arc incorporated into relevant parts of the Harris County Road Law:
Sec. 1. That. stibject the provisions this Act. Comis~~ioners Court of Hart18 County
shall have cootrol of all roads, bridges, draiae.
ditches, culverts end all vorkr and constructions
incident to itr road,, bridges, and drainage,
have been heretofore! laid out or conetructed, or
that mey hereafter 1~: laid out or constructed by
Harris County, or undm its direction.
Sec. 2. Subject t.o the provisions of this Act, the Comissioners Cclurt Harris County shall
have the power aad right to adopt such rules
regulations for: (I,) the proper construction aad
maintenance ita wads, bridges and draioage as
it may see proper. . . .
Sec. 3. Whenever any ~1~s. reguletioae course procedure la connection with or maintenance of the roads, bridges,
and drain. of Uerria County may have been adopted,
they shell thereupon be reduced to writing.
. . . .
‘>. 1166
Ronorable Hike Driscoll - Pege 3 (JX-262)
Sec. 16. The Comissioaers Court shall have control of all mutters in connection with the and maintenance of roads, bridges and drainage, except such aa it may from time time, by reeolutiou, delegete to the precinct road supervisor, and than under such rules and regulnt~lcma as it uay prescribe. and subject their rwall at its pleasure.
. . . . In acquiring rights-of-way Sec. 31-C. in Harrio County, the Comissionerc Court shall deterxiue t.b.e width of the rlght-of-vay stal~:lish required, the lines and eligmeat the road. All of the field aoteo of roads so established and deteruined shall be filed with the Combsloners Cowt and be recorded on the Road Log of Rarris County, end no expenditures shall be made by the Commissioners Court upoa any road not carried 011 the Road Log. The Comtissioners Court may edopt a system: for carrying roads oa the Road the required vidth of the right-of-vay Log vith be established by the Court. Provided, however, no road shell bc carried on the Road Log or ualntained by the county oa a right-of-vay leas than twenty (20) feet nor more than 600 feet vidth unless the right-of-uey was laid out or estebliehed on or after Jenuary 1, 1963. No subdivision or p:.at of lands la Anrris County outside incorpcweted cities shall be flied record by the Cmnty Clerk of Rarrio County, Texan, until such plat or subdivirioa bearr the sigoature the County Engineer the effect the roads; em indicated on the plat. have uet requirements syatau adopted by the Comisaioeers Cowt pursuant to this Section ae to the width of the :r:Lght-of-vay and have a base and surface of at leac;t twenty (20) feet in width with base surface meeting ainiuuu requirements preswibed by the Coumiasioners Court by order duly altered the minutes said court, and that all requireuants of Aarrir County aad the Rarris Comty Flood Control District as to drainage have been complied vith.
The Harris County Road Lav does not require real estate sub- dividers to post a bond for either the construction or mintenance roada in eubdivieions in Ha~:ris County. Section 9 of the law formerly *4 tlonorable Mike Driscoll - Page o (JR-262)
l lloved the comaiesionera court of Rarris County to require a bond of contractors for the construction roads for county; this provision, however, was repealed la 1979. Acts 1979, 66th Leg., ch. In any event, section 9 wee and remains applicable only
422. at 915. to roada built with fur.ds - it does aot affect the COaatNC- tion and uintenence of roads in subdivisioaa in Barris County that are not built with county fuzis. Moreover, we are uneware of any rules or regulations adopted by the county c~issioners requiring bonds frou developers of subdiviaiona for such matters. Accordingly, we uust resort to the general laws of the atate to answer your question.
Article 6702-l. the County Road Bridge Act.-wes revised and reenacted during the special legislative session bf 1984. Acts 1984.
w, at 44. Sections 2,401(tl:1(7) and 2.402(d)(7) of the revised act authorize the coamiaeionera caurt to require bonds the constNc- tion of roads in subdivisions. The com&rsionero court nay require the owner(a) of the land to bmc divided or subdivided to post a bond “for the proper construction the roads and streets affected.” conditioned upoa the construction of such roada in accordance with specifications established by the coamiaaioaers court. Id. at 75. 78 (to be codlf led as V.T.C,,Ii. srt. 6702-l. H2.40r(d) (7) 2,402(d)(7), respectively). The bond under either section “shall be in an amount as uay be determined by the commissioners court not estimated cost constructing [the] exceed atreete.” Id. Section 2.401 appliee to all counties in this state except those
that elect to operate under swtion 2.402. Section 2.402 applies counties of uore than 2.2 milLion inhabitants which elect to operate under this section and to cou:zties contiguous with a county of more then 2.2 uillion population that also elect to operate under this provision. We are unavere of uhether the Rarris County Coamissioners to operate under section 2.402; the uaxinum boad Court her elected acceptable under the County Road and Bridge Act, bowever. reuaias Sm. Therefore, in enaver to your question we conclude that Rarris County nay require subdividers rubuit a bond the proper in subdlvi8ion6 in Barrio County in an amouat of roads not to exceed the estiuated ewt of construction for such roads and streeta. We shall nov address the final issue raised by your inquiry.
In the brief prepared by your otfice. you argue that c&ssionera court uey also require subdividers post a uaintenaace bond as a condition of plat aplwoval or as e prareqaiaite to recording on the county road log. You contend section 31-C of the Rarris County Road Law (quoted abovo:~. when read in conjunction with language of revised sections ,I.401 and 2.402 of County Road and Bridge Act, iuplicitly uthor:laca the county to require uaintanance bonda in addition to construction bonds. Alternatively. you argue L
Ilonorablc Hike Drircoll - Paga 5 (J%262) acceptance of rosda on road log is equivalent that rime
acceptance of such roads for maintenance by the county, a maintenance bond 16 reasonable condlticm for such acceptance. We disagras with both contentions.
First, we note that tt,c County Road and Bridge Act make6 no provision the acceptance l>f bonds ensuring proper maintenance for And, in our opinion, such a bond cannot be roada in suhdivi6ions. language o:[ the act; had the legislature intended
implied from maintenance bonds to be mquired subdividers. it would have such bond a. Second, we believe that maintenance expressly required bonds contravene policy underlying county maintenance of roads.
By requiring subdividers to post bonds for the proper maintenance roads, the county would ef fectlvely make theas subdividers under- of work for which the county ia ultimately responsible. The writers county may not, in our 0pin:ton. employ this device to assure proper maintenance; there are. hovever, alternatives that Aarria County may lawfully utilize. See, e.fk-, V.T.C.S. arts. 6702-l. 53.102(e)(2) (bond required lov bidders on improvement 68121 contracts); vith over two (contracts for improvamenta ,of highways in counties million inhabitants). Finally, ve do not agree that maintenance bonds may be exacted as prerequiaitsa to recording on the road log or as a prerequisite to plat approv.nl. In your brief you contend that recording on the road log is equivalent to acceptance for county a subdivision maintenance. The mare filjng plst. however, is imufficient acceptance a road county constitute: maintenance. Attorney Gener,k.l Opinion m-200 (1984). Similarly. we believe that mere recordation on the road log la losufficient justify a maintenance bond, :?artlcularly since the county has at this stage undertaken no obligatitc. to maintain the roads in question.
The liarrla Comty Comiaaionera Court may require a bond from subdividers proper road6 subdivisions in an amount not to exceed the estimated coat of constructing such roads. The county may not require subdividers to post maintenance bond for such roada.
JIM HATTOX Attorney General of Texas *6 Honorable Mike Driacoll - P#~g;e 6 (JM-262)
TC+lCBEgN
First Aaaiatant Attorney Genc!ral
DAVID R. RICHAFDS
Executive Aaaiatant Attorney General
RICR GILPIN
Chairman. Opinion Committee
Prepared by Rick Cilpin
Amiatent Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin. Chalrman
Colin Carl
Susan Garrison
Tooy Guillory
Jim Moellinger
Jenoifer Riggs
Nancy Sutton