Who owns a county road? THE ANSWER MAY SEEM OBVIOUS, but the truth is that many of Texas’ smaller counties have a precarious grip on their roads. Current state law makes it difficult for these counties to prove ownership of older rural lanes, which can spell trouble if the road’s status is ever questioned in court. Attempts to change the law were unsuccessful last legislative session – but county officials are hoping for better luck with round two next January.

Almost all counties in Texas have obtained some of their roads by way of prescriptive easement, an informal acquisition procedure that requires the county to maintain a road for 10 consecutive years before it can claim ownership. However, the state transportation code was altered in 1981 to forbid this procedure for counties of 50,000 or less. Under normal circumstances, this restriction is not a problem for smaller counties. But when the issue of road ownership enters the legal arena, the county must prove that it maintained the road prior to 1981 – and that’s where the problems start.

“It poses a problem if the status of a county road is challenged,” said Jim Allison, an attorney who has successfully defended many county road cases in Texas. “Typically, there are no written maintenance records available for that period, and the county must rely upon the recollection of commissioners, county road and bridge employees or persons who resided in the area. As time progresses, it will become more difficult and eventually impossible to obtain that evidence.” Edwards County Judge Nick Gallegos said state laws should be stringent enough to prevent challenges to county roads’ status when local procedures fail. Edwards County has been to court three times over road disputes, despite the fact that in 1988 county officials gave the public several chances to voice concerns over the county’s road map.

“There was a minimal amount of people that came in,” Gallegos said.

Allison said unscrupulous landowners may soon become more aware of counties’ weak claims to certain roads and take advantage of the situation.

“They may become more frequent as persons realize that the county cannot establish the road,” Allison said. “Typically, what we’ve found is a person comes from a large metropolitan area and buys ranch land and decides he doesn’t want other persons using that land. He decides to challenge the status of that road, even though it’s been maintained by the county.”

Edwards County’s most recent road dispute, in 1995, was along these very lines. Gallegos said a local landowner with breathing problems disliked the dust that drivers created on the unpaved road near his ranch, and put up speed bumps to deter them. When local officials told him to remove the bumps, the landowner discovered that the county had no formal claim to the road. The suit was settled when the landowner agreed to construct an alternate route around the road in question.

Though Edwards County fared well financially in this case, Gallegos fears that similar lawsuits could be on the horizon. “If they would give the counties more authority – something to back us up – it would prevent any further lawsuits in the future,” Gallegos said.

Eastland County Judge Brad Stephenson, whose county has weathered similar court disputes, said current state laws should be altered to give a clearer definition of what constitutes a county road. “We need some plan for clearly delineating, once and for all, what is a county road,” said Stephenson, who testified before the House’s land and resource management committee last year on the issue. “It’s not an issue of trying to take something from the public, just a clarification and clear delineation of what is a county road.”

Stephenson said such vague definitions could actually cause local officials to inadvertently break the law.

“Statutes in the transportation and local government code tell the commissioners’ courts what they can spend money on and what they can do,” Stephenson said. “Without knowing what is a county road, there is a chance that you’re violating other statutes.”

However, those opposed to changing the current law say that counties already have adequate recourse for staking claims to roads. Jimmy Gaines of the Texas Landowners’ Council said the state’s normal judicial process should be followed if the ownership of a road is disputed.

“Current law requires the counties to send notice to the record owner to assert the claim,” said Gaines, who testified against changes to the law at an interim hearing in Austin on April 30. “If the owner disputes it, (the county must) file suit and get a judge to conclude that the necessary qualifications exist. (If they win), the county can claim it … Any change they propose would displace owners’ Constitutional rights.”

Gaines said he was amazed that many counties do not keep maintenance records to support their claims to a road.

“Records are a vital element of a county’s claim,” Gaines said. “If they’re not required to keep records, heaven help us.”

Despite opposition, the Legislature is expected to address the issue of prescriptive easement when it reconvenes in January 2003. Rep. Jim Keffer, R-Eastland, said he plans to reintroduce a new version of HB 340, which passed the House last year but died in the Senate.

The bill would have allowed counties to stake claims to county roads through the creation of a county road map, as long as proper notification was given to the public before a final version of the map was devised.

Allison said time constraints were the main reason the bill did not pass the Senate.

“It did not pass the House until late in the session,” Allison said. “Senate rules have deadlines for referral of bills from committee and it did not make that deadline. We just didn’t have enough time to move it through the Senate.”

Keffer said he is trying to minimize opposition to the bill this year, by ensuring that the legislation is palatable to both county officials and landowners.

“There are concerns, obviously, out there, and we’re trying to assure those opponents to it and address the concerns they have, but still get a bill out that tries to handle the problem of county roads,” Keffer said. “We’re trying to assure them this is not a land grab or overstep of government, but it is something that needs to be done.” Stephenson said he and other members of the Rural County Judges’ Association, a loose group of judges from smaller Texas counties, would support Keffer’s efforts.

“I know we will be actively lobbying for renewed legislation and trying to get this passed,” Stephenson said. “I believe (Keffer) is going to present the bill again. We have had meetings with opponents to work through some possible solutions to their concerns. I think it’s got a lot better chance.”

Gaines said bad blood caused by the road disputes in Eastland County prompted Keffer’s bill.

“I think it’s a personal grudge kind of deal that’s driving the whole legislation,” Gaines said. “That’s where I think it’s coming from.”

Other steps are being taken by the Subcommittee on Ownership of Rural Roads, which is studying the problems associated with roads acquired through prescriptive easement. The subcommittee met April 30 in Austin and “the consensus among everybody (was) that something needs to be done,” said Rep. Mike Krusee, R-Taylor, who heads the group.

“In the future, counties are going to be unable to provide live bodies,” Krusee said. “They’ll most likely lose in court. If that happens, it’ll end the rights of those interior landowners who use the roads to access their property.”

Krusee blamed the proliferation of challenges to county roads on increased migration from urban to rural areas, which often frustrates longtime country dwellers.

“Everybody wants to have a piece of the country,” Krusee said. “They’ll sell off pieces of it. When you have a road coming through and there’s 10 people on it, there’s a lot of traffic. The traffic used to be limited to two or three landowners, and now you’ll have 50 vehicles a day. The adjoining property owners challenge the status of the road in court and the county has to prove it’s public.”

Krusee’s subcommittee is expected to present a report on ownership of rural roads to the Legislature in October. Krusee declined to reveal the details of the report, but did say that outlawing prescriptive easement only for counties of less than 50,000 was unfair.

“I can say on behalf of myself that I think allowing counties over 50,000 to continue to acquire roads with prescriptive easement shows a preference for urban counties over rural ones,” Krusee said. “Rural counties are the hardest hit with financial problems.”