No. JM-1241 (1990).

Case DateNovember 08, 1990
CourtTexas
Texas Attorney General Opinions 1990. No. JM-1241 (1990). November 8, 1990Opinion No. JM-1241Mattox Opinion No. JM-1241Office of the Attorney General State of TexasHonorable Mike DriscollHarris County Attorney1001 Preston, Suite 634Houston, Texas 77002Opinion No. JM-1241Re: Authority of a county to trim, remove, or sell trees from county road rights-of-way (RQ-1970) Dear Mr. Driscoll: You ask three questions regarding Harris County's authority with respect to trees and shrubs growing within the rights-of-way of county roads. Your first question is: To what extent can the county trim, remove, sell or otherwise dispose of trees or shrubs from the right-of-way of county roads or prevent the planting of such trees and shrubs without being required to compensate owners of the fee upon which the right-of-way exists? Counties under their authority to open and lay out roads may acquire the rights-of-way for such roads by dedication, purchase, condemnation, or prescriptive easement. See V.T.C.S. art. 6702-1, subch. A (the County Road and Bridge Act); 36 D. Brooks, County and Special District Law, ss 40.7, 40.25 (Texas Practice 1989). Your question and brief indicate that you are concerned about the situation where the property interest the county has acquired in the right-of-way is in the nature of an easement, the fee interest being retained by the owner of the property abutting the right-of-way. See 43 Tex.Jur.3d Highways s 116 (1985). We caution at the outset that resolution of the issues presented in your first question might ultimately depend on the facts of the particular case-- e.g., the provisions of the conveyance, condemnation proceeding judgment, or dedication under which the county acquired the particular right-of-way in question. We cannot anticipate every factual situation that might arise. The following discussion of pertinent legal authority is offered for your guidance. We think it is clear that the Harris County Commissioners Court in exercising a right-of-way easement generally has authority to prevent the planting of trees and shrubs within the right-of-way and to remove or cause to be removed trees or shrubs growing there, when the court makes a reasonable finding that the trees or shrubs would interfere with the right-of-way purposes for which the easement was obtained. See Harris County Road Law, ss 1, 16, Special Laws, Acts 1913, 33d Leg., ch. 17, at 64 (Harris County Commissioners Court to have control of all roads laid out or constructed by the county and of all matters in connection with the construction or maintenance of such roads); id. s 12 (condemnation authority); id. s 33 (Harris County Road Law cumulative of other laws); V.T.C.S. art. 6702-1, s 2.002(b)(1) (under the County Road and Bridge Act, commissioners court may make and enforce all reasonable and necessary rules for the construction and maintenance of county roads except as prohibited by law); id. s 2.004 (condemnation authority). We note, too, that where the trees or shrubs are determined to impair visibility for motorists using the county road in question, Harris County as one with a population of 950,000 or more has authority under subchapter F of article 6702-1, through its commissioners court, to define sight distances at intersections and to prohibit and provide for the removal of trees and shrubs obstructing such sight distances (presumably both within and without the area of the right-of-way). In the absence of a showing of fraud or gross abuse of discretion, the commissioners court's determinations as to the need for removal of trees and shrubs in the right-of-way for right-of-way purposes would be conclusive. See, e.g., West Prod. Co. v. Penn, 131 S.W.2d 131 (Tex.Civ.App.--San Antonio 1939, writ ref'd). As to whether the owner of the underlying fee in the right-of-way is entitled to compensation for removal of trees or shrubs from the right-of-way, though we note some possible inconsistencies among the Texas cases, we think that the cases dealing most directly with this question indicate that the fee owner generally has no right to compensation. [fn1] In a decision approved by the supreme court, the Commission of Appeals in City of Fort Worth v. Gilliland, 169 S.W.2d 149 (Tex.Comm'n App.1943, opinion adopted), ruled that fee owners could not enjoin the city's destruction of curbs, sidewalks, trees, or shrubs in the street right-of-way, even where those improvements had been installed by the fee owners in compliance with a...

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