Untitled Texas Attorney General Opinion

• Court: Texas Attorney General Reports
• Decided: July 2, 1953
• Docket: S-88
• Status: Published

Opinion

Mr~. Austin Anderson Opinion No. S-88 Criminal District Attorney Bexar County Re: Necessity to condemn right San Antonio, Texas of access to a future f*ee- way, as distinguished from right of access to the exiat- i,ng highways which the free- Dear Mr. Anderson: way will replace.

Jn your recent opinion request concerning freeways, Article 10850, Vernon’s Civil Statutes, you make the following statements and ask the follewing questions.

“Section 1 of the Article is the part with which we are concerned. That section reads as follows:

‘The State Highway Commission or the governing body of any incorporated city or town, within their respective jurisdictions nxy do any and all things necessary to lay out, acquire, co&- struct, maintain and operate any section or any portion of any Stprte Highway or C,ity street as a freeway, and to make any highway or street wit& in their respective jurisdictions a freeway, ox- oept that no existing State Highway or City street shall be converted into a freeway except with toe consent of the owners of abutting lands, OT Isy the purchase or condemnation of their right ef access thereto, providing, however, nothing herein shall be construed as requiring the consent of the own- ers of abutting lands where a State Highway, or City street is constructed, established, or located for the first time as a new way for the use of ve- hicular and pedestrian traffic. ‘*

“We think that Bexar County is bound by this sb&ub for the reason that under Article. 6674n, the State Highway Comrnbsionacka throug,h the COIXNniSSiOndi8 CWart.

“The question we would like 8nAwared is %b:

‘ls it legally sufficient to conde~mn the right of actes,s in and to the existing highway, or - --

e Mr. Austin Anderson, page 2 (S-88)

is it necessary to condemn the right of access in and to the “freeway?“’

“You will notice that Section 1 reads in part that:

‘No existing State Highway or City street shall be converted into a freeway except with the consent of the owners of abutting lands or by the the purchase or condemnation of their right of access thereto, 0 a D ’

“The antecedent to ‘theretoP seems to be the hey to the proper interpretation. The question resolves itself into this: To what does ‘thereto’ have reference, existing high- way or freeway? n

In 1951, the Texas Legislature passed the present Freeway Act, and defined ‘“freeway” in Section 3 thereof. This definition is as fol- lows:

“Section 3. ‘Freeway’ means a state highway or city street in respect to which the right or easement of access to or from their abutting lands has been acquired in whole or in part from the owners thereof by the State Highway Commis- sion or the governing body of an incorporated city or town as herein above provided.” Article 1085a, V. C. S.

Such a definition of freeway clearly presupposes the existence of access and egress rights to exist in abutting property owners to thefree- way.

Section 1 of Article 1085a merely authorizes the State High- way Commission or the governing body of any incorporated city or town . to construct a freeway. Hence, that portion of Section 1 which reads “ex- cept that no existing stats highway or city street shall be converted into a freeway except with the consent of the owners of abutting lands, or by the purchase or condemnation of the right of access tlurreto,“clearly au- thorizes the Highway Commission to do no more than build a freeway, as defined by Section 3.

It is our opinion that in Section 1 of Article 1085a, V. C. S.., “thereto” refers to freeway. Therefore, it will be necessary for you t+ condemn the right of access in and to the freeway. Mr. Austin Anderson, page 3 (S-88)

SUMMARY

Under Section 1 of Article J085a, V. C. S.. it is necessary to condemn right of access to a future free- way, as distinguished from right of access to the exist- ing highway which the freeway will replace.

APPROVED: Yours very tr~uly,

Rudy G. Rice JOHN BEN SHEPPERD State Affairs Divis~ion Attorney General

C. K. Richards Reviewer

Robert S. Trotti ’ Milton Richardson First Assistant Assistant