County properly initiated clarification of interest in public road; statute of repose can be raised in plea to the jurisdiction

John Herbert Matthews v. Colorado County, 01-16-00092-CV (Tex. App—Houston [1st Dist.] July 26,2016)

This is a road abandonment case where the First District Court of Appeals affirmed the granting of the County’s plea to the jurisdiction.

In 1951, the Colorado County Commissioners Court commissioned the creation of a road map of all existing county roads of Colorado County. In 1953, the Commissioners Court ordered the discontinuation of a portion of County Road 79.  However, the County approved the road map it commenced in 1951 without any discontinuation of C.R. 79. In 2003, the Legislature adopted Chapter 258 of the Transportation Code which allows a Texas county to adopt a county road map in order to “clarify the existence of a public interest in a road.” The County initiated steps under the statute to clarify a public interest in all of 79 with no abandoned sections. On November 5, 2014, Matthews and seven other property owners filed an application for confirmation of discontinuance of abandoned public road. When the County denied the request, they filed suit. However, the trial court granted the County’s plea to the jurisdiction and they appealed.

Section 258.007 states that Chapter 258 “applies only to a county that initiates or completes compliance with the provisions of this chapter before September 1, 2011.”  Matthews argues the County failed to properly initiate the procedures under Chapter 258, so it therefore cannot take advantage of its application. However, the court examined the word “initiates” under a plain and ordinary meaning standard and held the County did initiate the process prior to the deadline. Specifically, the County hired legal counsel, conducted preliminary review of county maintained roads and identified those in which the county intended to claim a public interest, and created an index of roads in the ad valorem tax statements. The commissioner’s order specifically noted that it was uncertain whether the County would be able to complete the entire process prior to September 1, 2011, and that the order’s express purpose was “to document the facts set forth above, and to demonstrate that Colorado County has initiated steps reasonably designed and intended to comply in full with the requirements of Chapter 258, Texas Transportation Code.” The court agreed such acts qualify as “initiating” the process prior to the September 1, 2011 deadline. Next, §258.004 qualifies as a statute of repose, which begins to run from a specific date without regard to the accrual of a cause of action. A statute of repose creates a substantive right to be free of liability after a legislatively-determined period. Adopting the DeMagaloni line of cases, the court held a statute of repose is a jurisdictional defect in relation to a governmental entity so could be raised in a plea.  Matthews filed outside the statute so is time barred.

If you would like to read this opinion click here. The panel Includes Chief Justice Radack, Justice Jennings, and Justice Lloyd. Justice Lloyd delivered the opinion of the court.  The attorneys listed for Appellant are Steven C. Haley and Christopher Hardy. The attorney listed for the County is Robert Thrane Bass.