County Objections

Objection: 

"You are still, if you expend county money to improve the road from the end of the cul-de-sac, which is where the County accepted maintenance was to the end of the cul-de-sac. Both of the County engineers I have worked with while I have been here both agree on that. They have researched their records. The new County engineer went back and looked into that for me again and confirmed it." Bruce Erratt, Brazos County General Counsel

"Best case scenario for them, is we still have a Public Right of Way, not a road, dedicated by the developer that gets you to the center of the creek." Bruce Erratt, Brazos County General Counsel

"It was never accepted by the County." Duane Peters, County Judge

Response:

On March 11, 1985 the Commissioners Court approved the Subdivision Regulations for Brazos County (document here). These regulations were in effect for the Rustic Oaks plat acceptance in 1986 and road acceptance in 1988.

The following statement is made in the regulations:

"Where a dead-end street is designed to be so permanently, a cul-de-sac shall be provided at the closed end having an outside roadway diameter of one hundred (100) feet. Dead-end streets may be platted where the Commissioners' Court and the County Engineer deem desirable and where the land adjoins property not subdivided, in which case, the streets shall be carried to the boundaries thereof."

At the time of Plat and road acceptance, the private section of Greenleaf had not yet been subdivided (Metes and Bound survey was completed in August 1988, see document here). Thus, a compliant subdivision would have to extend the County owned portion of Greenleaf lane to the edge of the subdivision.

The commissioners Court minutes from April 1988 state (document here):

"Having met all of the subdivision regulations and on motion by Commissioner Beard, seconded by Commissioner Wilcox, the Court voted unanimously to accept for maintenance the roads in the Rustic Oaks Subdivision."

In the absence of any other documentation, the roads in Rustic Oaks would be assumed to be in compliance with the subdivision regulations which would mean:

• They would include a cul-de-sac on Greenleaf

• And Greenleaf road would extend to the edge of the subdivision

• Thus both the Cul-de-sac and the extension would be roads within the subdivision that were accepted in April of 1988

In Mattox v. Grimes County Commissioners Court No. 01-14-00535-CV. (Tex. App. Aug 27, 2015)  the following statement is made:

“Generally, the rule is that the opening up of a dedicated street for the greater part of its length by a municipality constitutes an acceptance of the whole of the street as dedicated, in the absence of anything to show a contrary intent.”

In Panola County Commissioners Court v. Bagley, 380 S.W.2d 878 (Tex. Civ. App. 1964) the following statment is made:

"Proof that a road is slightly traveled, McCloskey v. Heinen, Tex.Civ.App., 266 S.W. 193, or that it is a cul-de-sac, Decker v. Menard County, Tex.Civ.App., 25 S.W. 727, does not prove that the road is not public."

Objection: 

"The County has never installed or maintained those culverts. There is no record of that at all." Bruce Erratt, Brazos County General Counsel

Response:

While it is true that the County did not install the culverts, it is also true that the County did not build anything in the subdivision that they accepted in 1988. So the fact that they did not build it does not negate their responsibility to maintain it.

With the county having a policy to purge all maintenance records that are older than 5 years we would ask the County how they are going to prove that they did not ever maintain the culverts when there are multiple neighbors who witnessed it happening?

Objection: 

"Those culverts were put in by the developer. They washed out in the past, the developer put them back in the second time." Bruce Erratt, Brazos County General Counsel

Response:

The first question that would be asked is: where are the records they are basing this statement on?

The second question would be: when did this happen?

If this happened before the County accepted the roads in 1988 then it is irrelevant as the County accepted them in their current condition.

If this happened after the County accepted the roads, then the County should enforce the Brazos County Regulations for construction of Driveways and Easements which states:

 “The area between a private property line and the property line across the road is called the County Right of Way. Because the Right of Way is Brazos County property, a driveway, sidewalk, mailbox or any other structure built or located within that Right of Way is a trespass."

In summary, any changes made before County acceptance have no bearing on the situation. Changes made after acceptance leave the County the option of addressing the developer for trespassing on County land. Regardless, the County is responsible to maintain the dedicated and accepted section of Greenleaf.

Objection: 

"There is a reference to the fact the creek moved a little bit" Bruce Erratt, Brazos County General Counsel

Response:

Why would the County make a statement that the creek moved? We have also heard this comment in another County meeting where a statement was made "maybe the residents moved the culverts."

To address this, let's look at some facts:

• The culverts are surrounded by a concrete bulkhead that is 26.5 feet long, 6 feet tall and 8 inches thick. A 6 foot wide concrete pad extends past the bulkheads on both sides (pictures here). The current structure is not moveable.

• The current structure was in place when residents moved onto the road in 1991.

• A large post oak tree is 18 feet from the iron property boundary stake. The tree has a diameter of 27 inches. Based on a Growth Factor of 3, the tree is approximately 81 years old (calculator here). The base of this tree is 8 feet above the base of the creek.

• The distance from the property stake location to the center of the creek is 38 feet.

So if the iron stake was originally in the center of the creek that would imply:

• The creek moving between when the plat was made in 1986 and when residents arrived in 1991.

• A change of the creek location by 38 feet, thus a calculated move with heavy equipment involved, not a minor trajectory change.

• This 81-year-old tree was originally in the center of the creek and its base was 8 feet lower than it is today.

Based on the above information, the idea that the creek moved is not plausible. So why is it being offered as a reason for non-maintenance by the County? If the County is going to use this as a reason they should provide some documentation to back up the statement.

Objection: 

"But we still have a problem that no matter what we do, once we go past the end of the cul-de-sac where the maintained road ends, once we go past that, it is, whatever we do is to improve the value of the property across the creek. It is not only illegal, it is a crime to use county resources on private property." Bruce Erratt, Brazos County General Counsel

"If a County employee on a maintainer decided on their own out of the goodness of their heart that they were going to push rock, do something, it would have been an illegal act because that was not County maintained property. I can tell you this happened years ago while I was still a commissioner and that employee, when a neighbor said will you fix the entrance into my driveway, it was turned over to the district attorney and that employee was terminated and I believe prosecuted. If someone was doing some maintenance past where we should have been it would be an illegal act for them to do it." County Judge Duane Peters

Response:

Official County maintenance records are only retained for 5 years. However we have the following information based on an open records request made in 2019:

6/16/2015 shows three entries for Greenleaf with the following information:

• 8 Yards of standard base used with a cost of $169.68

• 7 hours of labor at a cost of $188.61

• Use of equipment RB690 and RB933 with an equipment cost of $366.42

11/5/2018 shows eight entries for Greenleaf with the following information:

• 84 yards of standard base used with a cost of $2,005.68

• 35.5 hours of labor at a cost of $972.57

• Use of equipment RB688, RB684, RB699, RB529, RB503 with an equipment cost of $1,119.96

Although these are the only maintenance records that the County has on Greenleaf, neighbors recall the County maintaining the platted section of Greenleaf for 30 years. 

If it is illegal to maintain private roads, and the County says that the section of Greenleaf in question is private, was any action taken against those who authorized and completed maintenance on it in the past?

The fact that no one is being charged would lead to the conclusion that it was lawfully maintained and it is a County road.

Objection: 

"The two pieces of property immediately adjacent conveyed to the center of creek." Bruce Erratt, Brazos County General Counsel

Response:

The warranty deed from November 14, 1991 for 335 Greenleaf, which borders Rustic Oaks states (document here):

"Beginning at the 1/2" iron rod found marking the east corner of the 10.57 acre tract described in the deed from Highland Interests, Inc. to Veterans Land Board, recorded in Volume 1163, Page 626, of the Official Records of Brazos County, Texas, same being the centerline at the end of Greenleaf Lane (60 foot right-of-way), Rustic Oaks Subdivision, according to the plat recorded in Volume 897, Page 639 of the Official Records of Brazos County, Texas:"

The warranty deed from January 12, 1990 for 334 Greenleaf which borders Rustic Oaks states (document here):

"pass the south or southwest corner of Lot 15, Block 2 at the west corner of Greenleaf Lane (60' right of way), as platted in the said Volume 897, Page 639, same being the north corner of a proposed 30 foot access easement, continue on, for a total distance of 106.81 feet to a 1/2" iron rod set at the centerline intersection of said Greenleaf Lane:"

Dr. Stacy Lyle's opinion is (document here):

"it is the intent as described in the said FINAL PLAT of the RUSTIC OAKS SUBDIVISION and described in the said adjoining 10.58 ACRES tract to hold the set and found iron pin monument as a boundary."

"THE iron pin set and found is a boundary to RUSTIC OAKS SUBDIVISION and the 10.58 ACRES tract to the south and concludes the ownership of all the roads and assets of the RUSTIC OAKS SUBDIVISION."

The County argument that the warranty deeds of the adjacent properties conveyed to the center of the creek doesn't match the fact that the documents specifically refer to a physical iron rod located on Greenleaf. Dr. Lyle's analysis of the situation confirms the iron rod is the edge of the platted portion of Greenleaf and the warranty deeds on the other side.

Objection: 

"I know that the people of this community feel like the County has been working hard to keep from helping them, and that is actually wrong. When this first came back in my area that was 2017. Commissioner Catalina called me in to have a meeting with some folks about a drive. I had never heard of Greenleaf before then. He told me at the time that it was already determined by the County that we could not help the folks on Greenleaf, but they were coming in to speak with us. At the end of that meeting, instead of just assuming that Mr. Catalina was right, I and the other attorney that I work with spent a good deal of time trying to figure out a way that we could do something about this road. Unfortunately, even with the information you have heard this morning, everything across the creek is private... Want folks to know we have spent hours and hours to help them. It is a bad situation, we all agree on that." Bruce Erratt, Brazos County General Counsel

Response:

To answer this we will start with what the County has done for us:

• Met with us on a number of occasions and provided reasons similar to those given on this page for why they have no obligations.

• Been courteous and professional.

• Indicated that grants were an option but that they cannot assist in the process although they could provide a supporting letter.

• Been cooperative with us on open records requests, and the County Clerk's office has been extremely helpful with research.

• And they have spent time researching the matter internally.

So while they County has helped in a number of ways they are blocking our efforts in two ways:

• Primarily they claim that the culverts are on private land which has the following implications:

  • Our ARP funds request was classified as private and then was dropped by the Commissioners.

  • Our Commissioner has said he has resources to assist with grant writing but cannot use them until ownership is established.

  • If we apply for grants on our own, the County would attempt to block any grants we applied for that were for use on public land.

• Secondarily, they fail to have an impartial discussion on the subject:

  • They have not addressed Dr. Lyle's survey and opinion.

  • The other research we have presented is either not addressed or dismissed as irrelevant.

  • They will not provide documentation for their claims. They have claimed to have researched the matter on their end, but have not provided us with any records to support their position, while we have continued to answer their objections with more and more documentation.

Objection: 

We have heard this argument in various forms over the last few years. The objection refers to the 2018 decision that was made to put the end of maintenance sign on the edge of the subdivision as identified by survey. The claim is that this sign move was made by an un-authorized employee and that the sign was only there for a single day.

Response:

Here are some facts that are related to timing and authorization:

• Texas Transportation Code says that in a County Road Department System, the County Engineer is the CEO of the Road Department and the Commissioners are the policy making body.

• In a meeting with the County Engineer she decided to get a survey done and paid Strong Surveying to complete the survey. The Survey was completed on 11/16/2018 and the maintenance sign was moved to the location identified in the survey the same day.

• An email sent to the County Engineer on 11/19/2018 thanked her for completing the survey and moving the sign and asked if this meant the County was in charge of the culvert crossing. She responded that this was correct.

• On 12/11/2018 the County Engineer informed the residents that they were no longer responsible for the culvert crossing and questions should be take to the legal department. The sign was moved on this day to a location it had never been at in the last 30 years of road history.

So what can be learned from the facts:

• The maintenance sign was there for 24 days. Why is the County saying it was only there for 1?

• The County Engineer was aware of and in agreement with the sign move so she would be assumed to have authorized it.

• Based on previous Commissioners Court road acceptance and location identified by survey, the County Engineer would have the authority to move the maintenance sign to its correct location.

• However the County Engineer is then overruled by a legal department that reports solely to the County Judge. This legal department has offered no documentation to backup a decision to overrule the County Engineer and command the Road Department to move the sign to a location it had never been at previously.

Objection: 

We have heard the County say that this section of Greenleaf was not built to County standards and because of this it was not accepted. To go along with this we hear that the County has never accepted sub standard roads.

Response:

To respond to this, we first examine the condition of the rest of the Rustic Oaks subdivision and whether it was truly up standard. Then we look at a small portion of comparison roads which were not up to standard (they were gravel) and were never officially accepted by the County, but are maintained as County roads today. For more information on these roads, view our County presentation here.

• Rustic Oaks Subdivision

When the County engineer approved the plat for the Rustic Oaks subdivision, he noted a number of deficiencies in the roads. Based on these deficiencies he said that “The County reserve the right to maintain the roads as gravel.” So the rest of the Rustic Oaks subdivision was not up to standard. So to single out a single section of Greenleaf for exclusion would not be appropriate.

Also of note, Greenleaf is not the only culvert crossing in Rustic Oaks. When the culverts on Rustic Oaks drive rusted out the County built a temporary road around them and replaced them.

• Timbercrest Subdivision - Precinct 1

  • Roads: Timbercrest includes Cedar Bend Rd, Smugglers Rd, Stagecoach Rd and Tall Timber Dr.

  • 1974: Timbercrest plat accepted with “the understanding that the County would be under no obligation to

build, construct, or maintain any of the streets or roads.”

• 1989: All Timbercrest roads on County Road List - 1.543 miles.

• 2001: All Timbercrest roads on County Road List as Gravel.

• 2014-2019: County work orders show steady history of County maintenance on each road every year

including mowing, tree removal, dirt and standard base.

• Franklin Estates - Flyway Road - Precinct 4

  • 1973: The plat for Franklin Estates was accepted with “the understanding that the County would in no way

construct or maintain the roads in said subdivision.”

• 1989: Flyway road not in County Road List.

• 2001: Flyway is in the County Road List - 0.488 miles of Gravel road.

• 2014-2019: County work orders show steady history of County work every year including mowing, roundup

and standard base.

• Four Counties - Old Macey Road - Precinct 2

  • 1989: Old Macey not in the County road list.

  • 1996: Four Corner Plat had separate dedications to the public from each property owner on the road.

  • 2001: Old Macey in County road list - 0.394 miles gravel road.

  • 2014-2019: County work orders show steady history of County work every year including mowing and

standard base.