Holman v. Mayor, 34 Tex. 668 (1870); Ex parte Testard, 101 Tex. 250, 106 S.W. 319 (1908); Ex parte Travis, 123 Tex. 480, 73 S.W.2d 487 (1934); Ex parte Sanders, 169 Tex.Crim. R., 332 S.W.2d 332 (1960); Ex parte Conger, 163 Tex. 505, 357 S.W.2d 740 (1962); Ex parte Buford, 163 Tex. 505, 357 S.W.2d 740 (1962). Habeas corpus lies only to review jurisdictional defects or denials of fundamental or constitutional rights.
"To constitute 'public use' all persons must have an equal right in respect to the property and it must be in common and on the same terms no matter that only a few in number may avail themselves of it." Ex parte Conger, 357 S.W.2d 740, 742 (Tex. 1962). Roads to which the general public is denied access cannot, therefore, constitute a public use.
Appellees also contend that the depositions of Commissioners Holmes, Waits, and Rich show that they did work for churches which appellees contend was illegal. It was held by the Supreme Court of Texas in Ex Parte Conger, Tex., 357 S.W.2d 740, that it was improper for a county commissioner to allow the use of county owned equipment for the purpose of performing work on privately owned church property to furnish parking facilities for the use of members in attending services at their church. However in the case at bar the evidence with respect to church work is rather general and is not fully developed as to under what circumstances it was done, and it all appears to be completed acts in the past.
There are other Texas cases dealing with 'active concert or participation', but they all contain some evidence of involvement with the named enjoined party or involvement in the original injunctive proceeding. Ex Parte La Rocca, 154 Tex. 618, 282 S.W.2d 700 (1955); Ex Parte Conger, 163 Tex. 505, 357 S.W.2d 740 (1962). The United States Supreme Court in interpreting Rule 65(d) F.R.C.P., from which Texas Rule 683 is taken, said in Regal Knitwear Co. v. Board, 324 U.S. 9, 14, 65 S.Ct. 478, 481, 89 L.Ed. 661 (1944), that the inclusion of those in 'active concert or participation with them' is so that 'defendants may not nullify a decree by carrying out prohibited acts through aiders and abettors, although they were not parties to the original proceeding.' If a non-party does an act prohibited by the injunction he must be in active concert or participation with the named party in order to be in contempt for violation of the injunction.
Because individual members of the commissioners' court have no authority to bind the county by their separate actions, these statements do not constitute conclusive proof that the spur road is a public road. See Ex parte Conger, 163 Tex. 505, 357 S.W.2d 740, 743 (1962); Canales v. Laughlin, 147 Tex. 169, 214 S.W.2d 451, 455 (1948). The 1998 order similarly does not constitute conclusive proof that the spur road was public because, as earlier discussed, the order was made without prior notice to the Reids.
Because individual members of the commissioners' court have no authority to bind the county by their separate actions, these statements do not constitute conclusive proof that the spur road is a public road. See Ex parte Conger, 163 Tex. 505, 357 S.W.2d 740, 743 (1962); Canales v. Laughlin, 147 Tex. 169, 214 S.W.2d 451, 455 (1948). The 1998 order similarly does not constitute conclusive proof that the spur road was public because, as earlier discussed, the order was made without prior notice to the Reids.
Moreover, individual members of the commissioners court have no authority to bind the county by their separate actions. See Exporte Conger, 357 S.W.2d 740, 743 (Tex. 1962), Canales v. Laughlin, 214 S.W.2d 451, 455 (Tex. 1948). We conclude that a county commissioner's maintenance of private roads in Hill Country Estates does not impose on Hood County any obligation to maintain those roads.
The remedy is not to ignore a court's legitimate exercise of its authority to rule on evidentiary matters. Counsel also asserts he did not intentionally violate the court's ruling. While lack of intentional disrespect may be considered, it is a matter for the trial court's determination. Ex parte Conger, 163 Tex. 505, 357 S.W.2d 740, 743 (1962). At the sanctions hearing, the court considered counsel's argument that any violation of its ruling was inadvertent.
These limitations apply to the use of county labor, materials, and equipment. SeeGodley v. Duval County, 361 S.W.2d 629, 630 (Tex.Civ.App.-San Antonio 1962, no writ) (a commissioners court is "not authorized to permit the use of county labor, materials or equipment for other than public use") (citing Ex parte Conger, 357 S.W.2d 741 (Tex. 1962); Rowan v. Pickett, 237 S.W.2d 734 (Tex.Civ.App.-San Antonio 1951, no writ)). For example, in 1975 this office considered the constitutionality of proposed legislation that would have authorized counties to use county employees and equipment to construct and maintain private roads and "for private earthmoving work" for a fee, and concluded that the bill was unconstitutional because those activities are not "county business" within the meaning of article V, section 18.
But, as this office noted in Attorney General Opinion JC-0172, "Aside from the narrow authority granted by article III, section 52f . . ., counties are not constitutionally or statutorily authorized to construct or maintain private roads." Tex. Att'y Gen. Op. No. JC-0172 (2000) at 2 (citing Exparte Conger, 357 S.W.2d 740 (Tex. 1962); Tex. Att'y Gen. Op. Nos.JC-0016 (1999) at 3, DM-13 (1991) at 3-4, JM-0334 (1985) at 2, JM-0200 (1984) at 2). Under section 251.002 of the Transportation Code, a public road is defined as follows: "A public road or highway that has been laid out and established according to law and that has not been discontinued is a public road."