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Court of Appeals of Texas,Tyler.

George HANKS, Appellant v. Kenneth SMITH, Appellee

No. 12-01-00097-CV.

Decided: October 24, 2001

Panel consisted of DAVIS, C.J., WORTHEN, J., and GRIFFITH, J. J. Kevin Dutton,Tonahill, Hile, Leister & Jacobellis, Jaspers, for appellee. Robert L. Floumoy, Floumoy & Deaton, Lufkin, for appellant.

The opinion of August 31, 2001 is hereby withdrawn and the following opinion is substituted in its place.

George Hanks (“Hanks”) 1 appeals a take nothing judgment rendered against him following a bench trial.2  In three issues, Hanks challenges the evidentiary sufficiency of certain findings and conclusions made by the trial court pertinent to its judgment.   We affirm.


Hanks owns real property in Sabine County, Texas.   Appellee, Kenneth Smith (“Smith”), owns real property that abuts Hanks's property.   Hanks's property is located to the south of Smith's property.3  A parcel of land owned by Temple Industries (“Temple”) is located to the east of the parcels owned by Hanks and Smith.   Farm Road 2024 is located to the north of all of the aforementioned parcels of land and runs east-west.   Farm Road 1, which intersects with Farm Road 2024, is located to the west of the aforementioned parcels and runs north-south.   Hanks's land does not abut Farm Road 2024 or Farm Road 1. A small road, which is the subject of this lawsuit, juts off Farm Road 2024 south through Smith's property and, at one point, abuts a portion of Hanks's property.   This road is known as Brooms Gin Road. Approximately eight tenths of a mile along Brooms Gin Road from Farm Road 2024, Smith maintains a fence that blocks access to the rest of the road.   The fence has been in place, in one form or another, for approximately fifty-two years.   Smith testified that Brooms Gin Road has always been a private road and that any access has been by permission only.   On the other hand, Hanks testified that the road had, in the past, been regularly traveled by members of the community and, at times, been maintained by the county.

On January 12, 1976, the meeting minutes of the Commissioners' Court of Sabine County reflect that the commissioners' court “reaffirmed that the Brooms Gin Road, which leads off FM 2024 in a southerly direction across the Britton Smith property, is a county road.”   However, on May 10, 1976, when the commissioners' court met for its regular session, the meeting minutes reflect that “the court released all claim Sabine County may have to the Brooms Gin Road, which crosses the Britton Smith property ․” The record reflects that, at no relevant time, was Smith's fence obstructing Brooms Gin Road removed, and that it was in existence at the time of the trial of this matter.

The record further reflects that, on occasion, Smith permitted Hanks to access his (Hanks's) property by way of the fenced portion of Brooms Gin Road, but has generally refused to permit Hanks regular access to the road.   On other occasions, the record reflects that Hanks gained access to his property by crossing the parcel owned by Temple.   Following a request by Hanks, Temple even built and maintained a private timber road which ran near Hanks's property, and agreed to allow Hanks to use the road as access to his property.4


In reviewing a no evidence point, we must consider only the evidence and inferences that tend to support the verdict, disregarding all contrary evidence and inferences.   See Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex.1998).   We may only sustain a “no evidence” point when the record discloses one of the following:  (1) a complete absence of evidence of a vital fact;  (2) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact;  (3) the evidence offered to prove a vital fact is no more than a mere scintilla of evidence;  or (4) the evidence establishes conclusively the opposite of a vital fact.   See Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997).   It is not within our power to second-guess the fact-finder unless only one inference can be drawn from the evidence.   See Havner v. E-Z Mart Stores, Inc., 825 S.W.2d 456, 461 (Tex.1992).   If there is more than a scintilla of evidence to support the finding, the evidence is legally sufficient.   See Browning-Ferris, Inc. v. Reyna, 865 S.W.2d 925, 928 (Tex.1993).

On the other hand, when evaluating a factual sufficiency challenge, we will consider and weigh all of the evidence in the case, both evidence supporting the verdict and evidence which tends to contradict the facts upon which the fact-finder based its verdict. See In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951).   We may not substitute our conclusions for those found by the fact-finder and will reverse only if we conclude that the verdict is so against the great weight and preponderance of the evidence as to be manifestly unjust.  Id.


 In his first issue, Hanks contends that there was insufficient evidence to support the trial court's finding that there is no county road access across the Smith property.   Generally, absent a showing of gross abuse of discretion, fraud or collusion in the commissioners' court's opening of a road, the order of the commissioners' court is binding and conclusive.   See Doughty v. Defee, 152 S.W.2d 404, 409 (Tex.Civ.App.-Amarillo 1941, writ ref'd. w.o.m.), citing West Production Co. v. Penn, 131 S.W.2d 131, 132 (Tex.Civ.App.-San Antonio 1939, writ ref'd.);  Hidalgo County v. Johnstone, 137 S.W.2d 825, 826 (Tex.Civ.App.-Eastland 1940, writ dism.   Judgm't Cor.);   see also Harrison v. Jay, 153 Tex. 460, 271 S.W.2d 388, 390 (1954) (“judgments of commissioners' courts, in all matters over which they are given jurisdiction, are entitled to the same consideration as those of other courts provided for by the Constitution;  ․ such judgments are not subject to collateral attack, and are reviewable only upon appeal or in a direct action for that purpose, in the absence of a showing of gross abuse of discretion, or of fraud or collusion or lack of jurisdiction.”).

 In the case at hand, the meeting minutes reflect that the issue of the status of Brooms Gin Road was voted on by the commissioners' court and that its status was reaffirmed as a county road.5  Although Smith complains that there is no indication that the proper legal procedures were adhered to by the commissioners' court, he has not appealed the commissioners' court's decision, and we may not consider such a collateral attack on the commissioners' court's order.   See Harrison, 271 S.W.2d at 390.   Therefore, the order of the commissioners' court dated January 12, 1976 reaffirming that Brooms Gin Road was a county road was conclusive evidence on the issue of the status of Brooms Gin Road. Thus, since the evidence establishes conclusively the opposite of the trial court's finding, Hanks's first issue is sustained.   See Havner, 953 S.W.2d at 711.

 However, given the conclusive nature of an order of a commissioners' court on such issues, we must now consider the issue of whether Brooms Gin Road was abandoned by the county by subsequent order of the commissioners' court.   It is within the authority of the commissioners' court of a county to order that public roads be abandoned following a unanimous vote of the commissioners.   See TEX. TRANSP.   CODE. ANN. § 251.051(a) and (b) (Vernon 1999).   In the instant case, on May 10, 1976, the minutes of the Sabine County Commissioners' Court indicate that, “by unanimous vote, the court released all claim Sabine County may have to the Brooms Gin Road, which crosses the Britton Smith property ․” (emphasis added).

Hanks argues that the language of this order is not indicative of abandonment, but rather, indicates that Sabine County was simply discontinuing maintenance of the Brooms Gin Road. We disagree with Hanks's interpretation.   The Texas Transportation Code defines the word “abandon” to mean “relinquish the public's right of way in and use of the road.”   Id. at § 251.001(1).   On the other hand, the transportation code defines the word “discontinue” to mean “discontinue the maintenance of the road.”   Id. at § 251.001(2). Based on the plain meaning given the language used by the commissioners' court in its order and considering the legal definitions of certain words used by the court, we do not conclude that such language is indicative of an intent solely to discontinue maintenance as the word “discontinue” is never used, nor is there any other language indicating that the county's release of its claim to the road was strictly limited to its maintenance of the road.   Rather, we believe the language chosen by the commissioners' court to be analogous to the definition of “abandon” as set forth in the Transportation Code.6 The fact that the commissioners' court used such broad, limitless language in its order is clearly indicative of its intention that Brooms Gin Road cease to be a county road.   Therefore, the order of the commissioners' court dated May 10, 1976 releasing all claim that Sabine County may have in Brooms Gin Road was conclusive evidence that Brooms Gin Road was abandoned as of that date.7  See Doughty, 152 S.W.2d at 409.   Thus, we conclude that the evidence was both legally and factually sufficient to support the trial court's finding that the Brooms Gin Road was abandoned.8  Hanks's second issue is overruled.

 We next consider the third issue raised by Hanks that the Brooms Gin Road could not be abandoned because it was reasonably necessary for Hanks to reach his property.   Hanks relies on section 251.057 of the transportation code and Moore v. Commissioners Court of McCulloch County, 239 S.W.2d 119, 121 (Tex.Civ.App.-Austin 1951, writ ref'd.).   We iterate that absent a showing of gross abuse of discretion, fraud or collusion in the commissioners' court's opening of a road, the order of the commissioners' court is binding and conclusive.   See Doughty, 152 S.W.2d at 409;  West Production Co., 131 S.W.2d at 132;  Johnstone, 137 S.W.2d at 826;  Harrison, 271 S.W.2d at 390.   In the instant case, there have been no allegations of fraud or collusion.   By seeking a declaratory judgment that the Brooms Gin Road is a public road in light a ruling by the commissioners' court to the contrary, Hanks seeks to collaterally attack the order of the commissioners' court.   We may not consider such a collateral attack.   See Harrison, 271 S.W.2d at 390.   Hanks's third issue is overruled.

Accordingly, the judgment of the trial court is affirmed.


1.   After the trial of this matter was conducted, but before the court rendered final judgment, Hanks died.   Although the style of the case remained unchanged, this appeal is brought by the Estate of George Hanks.

2.   The evidence at trial was heard by the Honorable John W. Mitchell.   However, Judge Mitchell died prior to rendering a judgment. Subsequently, a hearing was held by Judge Mitchell's successor, the Honorable Joe Bob Golden.   At this hearing, the parties agreed that there was no need to try to put on other evidence.   Thus, we will not address the issue as to whether judgment was improperly rendered pursuant to Texas Rule of Civil Procedure 18.   See W.C. Banks, Inc. v. Team, Inc., 783 S.W.2d 783, 786 (Tex.App.-Houston [1st Dist.] 1990, no writ) (holding that while Rule 18 “specifically allows the successor judge to rule on motions pending, it does not allow rendition of judgment by a judge who has heard no evidence”).

3.   There is some indication in the record that Defendant's Exhibit 9, which is a survey of the land in question, is not drawn so that the top of the drawing would be to the north.   There is conflicting evidence in the record as to the directional relationship among the various parcels, highways and the like.   In the interest of clarity, the description utilized in this opinion is based on Defendant's Exhibit 9, and assumes that the top-center of the drawing is due north.

4.   There is evidence that Hanks rejected a written agreement providing him access to Temple's road.   There is further evidence that the access to the Hanks property provided by Temple was not without limitations.   Hanks testified that he was required to be alone when he used the road and was not permitted to stop on the road for any purpose.   Moreover, there is evidence that a hunting club, which leased the land from Temple, installed locks on cable barricades and had, at times, refused Hanks access.   However, Raymond Meleton, Jr. (“Meleton”), a forester for Temple, testified that the hunting club was instructed to allow Hanks access along the road. Meleton further testified that Hanks still had permission to use Temple's road, although Meleton also conceded on cross examination that if Hanks were to build a house on the property, and needed to access the property regularly, even when Temple was conducting logging operations, Temple would prefer that Hanks secure alternate access to his property so as to avoid the necessity of inconveniencing Hanks.   However, the record also reflects that there is no house on the property, nor does it reflect that there was any testimony regarding any plans to build a house on the property.

5.   Meeting minutes reflecting that the commissioners' court voted on the issue at hand constitutes a valid order.   See, e.g., Rankin v. Noel, 185 S.W. 883, 885 (Tex.Civ.App.-San Antonio 1916, no writ).

6.   In addition to the definition supplied by the transportation code, other definitions of “abandon” support our interpretation.   See, e.g., BLACK'S LAW DICTIONARY 2 (6th ed.1990) (abandon means “to relinquish all connection with or concern in”);  THE AMERICAN HERITAGE DICTIONARY 66 (2nd College ed.1982) (abandon means “to surrender one's claim or right to”).   Moreover, the word “release,” as used by the commissioners' court is a synonym of the word “relinquish,” as used by the Transportation Code. See THE MERRIAM-WEBSTER THESAURUS 461 (1989).   Thus, the statement “release all claim to” is reasonably interpreted to encompass the relinquishment of any right the county may claim of the public's right of way in and use of the road since the determination of the public status of a road is a part of the authority granted a commissioners' court.

7.   There is no evidence of record that the commissioners' court ever reaffirmed Brooms Gin Road's status as a county road subsequent to May 10, 1976.

8.   On this issue, the trial court made a conclusion of law that “Any County Road that existed was abandoned in 1969.”   While we do not disagree that there is at least some evidence to support such a conclusion, we note that the commissioners' court reaffirmed the public status of the Brooms Gin Road on January 12, 1976 making its abandonment, if any, as of 1969, moot.   See TEX. TRANSP.   CODE ANN. § 251.057(a) (Vernon 1999).

GRIFFITH, Justice.

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