Untitled Texas Attorney General Opinion ( 1977 )

L
June 22, 1977
Honorable Henry Wade Opinion No. H-1018
District Attorney
6th Floor, Records Building Re: Whether Dallas County
Dallas, Texas 75202 may maintain city streets.
Dear Mr. Wade:
You have requested our opinion regarding the authority
of Dallas County to construct and maintain city streets
under general law and the Dallas County Road Law, an uncodi-
fied special law, enacted in 1941 and subsequently amended
three times. Acts 1941, 47th Leg., ch. 458 at 729; Acts
1949, 51st Leg., ch. 311 at 579; Acts 1951, 52nd Leg., ch.
328 at 563; Acts 1955, 54th Leg., ch. 43 at 57. In 1951,
the Attorney General ruled that certain of its provisions
were unconstitutional, while other provisions were validly
enacted under article 8, section 9 of the Texas Constitution,
which authorizes local laws for the maintenance of public
highways. Attorney General Opinion No. V-1315 (1951). The
valid portions, "standing alone, form a complete and enforce-
able piece of legislation." -Id. at 11.
YOU first ask whether the Dallas County Road Law requires
that county roads be maintained under one consolidated road
and bridge district. Nothing in the statute appears to require
this result. Section 24, which makes the act "cumulative of
all General Laws of this State on the subject treated of and
embraced in this Act when not in conflict herewith," thereby
incorporates the provisions of article 752c, V.T.C.S., which
permits a county to "establish one or more road districts."
In our opinion, therefore, the Dallas County Road Law does
not require that the roads of Dallas County be maintained
under one consolidated road and bridge district.
YOU next ask whether the Dallas County Road Law limits
your general law authority to work on the streets of a muni-
cipality. Since the special law is cumulative of general
laws on the subject, it does not limit the county's authority
under general law. Sec. 24. Nor do we believe it adds to
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Honorable Henry Wade - page 2 (H-1018)
your general law authority to work on city streets. Section
1 of the special law grants the commissioners court power to
build and maintain the public roads of Dallas County I'so as to
facilitate travel between the communities thereof." --See also
Acts 1951-, 52nd Leg., ch. 328, 5 25a at 563. The Dallas County
Road Law defines "road" and "highways" to include, "bridges,
culverts, roadbeds, ditches, drains, and every part of a road
or highway as such terms are commonly understood. . . ."
Sec. 22. By contrast, the Harris County Road Law includes
in its definition of road "every part of every road, whether
inside or outside of any incorporated city or town in Harris
County. . . .I Acts 1913, 33rd Leg., ch. 17, 8 29 at 70 (Local
and Special Laws). This language authorizes Harris County
to build a road through a general law city, over the city's
objection. City of Piney Point Village v. Harris County,
479 S.W.2d 358 (Tex. Civ. App. -- Houston [lst Dist) 1972)
~JJ& dism'd, 410 U.S. 976 (1973). In the absence of such ex-
press authority to build roads through cities under the special
Road Law, we believe Dallas County may work on only those city
streets that it has general law authority to work on. Adams
v. Rockwall County, 280 S.W. 759 (Tex. Comm'n App. 1926, jdgmt
adopted); Benat v. Dallas County, 266 S.W. 539 (Tex. Civ. App.
-- Dallas 1924, writ ref'd).
We turn to your questions regarding your general law
authority to build or maintain city streets. Article 1016,
V.T.C.S. provides that general law cities shall have "the ex-
clusive control and power over the streets, alleys, and public
highways of the city." --See also V.T.C.S. art. 1146, § 2.
Home rule cities mav also exercise exclusive iurisdiction over
their streets if they adopt appropriate charter provisions.
V.T.C.S. art. 1175, 55 12, 16; see City of Corpus Christi v.
Unitarian Church of Corpus Christi, 436 S.W.2d 923 (Tex. Civ.
APP. -- Corpus Christi 1968, writ ref'd n.r.e.); Miller v.
Uvalde Co., 20 S.W.2d 403 (Tex. Civ. App. -- San Antonio 1929,
writ dism'd). It is well established that this authority pre-
vails over the right conferred upon the commissioners court
by article 2351, V.T.C.S., to "[llay out and establish, change
and discontinue public roads and highways," and to "[elxercise
general control over" them. The incorporation of a city gene-
rally removes the power of the commissioners court to lay out
and regulate roads within that city's boundaries. Harrison
County V. City of Marshall, 253 S.W.2d 67, 69 (Tex. Civ. App.
-- Fort Worth 1952, writ ref'd). This rule has been modified
by judicial decisions and Attorney General Opinions which
have upheld a limited authority of the commissioners court over
city streets, provided the city consents and provided further
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Honorable Henry Wade - page 3 (H-1818)
that such streets form an "integral part" of the county road
system or a "connecting link" therewith. City of Breckenridga
v. Stephens County, 40 S.W.Zd 43, 44 (Tex. 1931); Hughes v.
County Commissioners Court of Harris County, 35 S.W.2d 818
(Tex. Civ. App. -- Galveston 1931, no writ); Attorney General
Opinion~WW-1410 (1962). The commissioners court may spend
county funds to improve city streets as long as certain cir-
cumstances exist. Several of your questions are directed at
determining when the requisite circumstances exist.
You ask how to determine whether a city street forms "an
integral part of the county road system" or a 'connecting link"
so that the county may spend funds to improve it. In ordi-
nary usage, "integral" means a part necessary or essential to
complete the whole. Matczak v. Secretary of Health, Education
and Welfare, 299 F. Supp. 409, 413 (E.D.N.Y. 1969). In Attor-
ney General Opinion V-261 (1947) we indicated that such streets
form a continuation of a county road and have been designated
by the county as part of its road system. See dlS0 Attorney
General Opinion O-1190 (1939). Thus, we beEve the county
may extend an existinq countv road throush a citv or complete
any gaps within city limits, -providing, of course, the city
consents. See Hughes v. Commissioners Court of Harris County,
;sEi;t;t 82rTex. Att'y. Gen. Op. (To Honorable Marshall
, Feb. 2, i915), 1914-1916 Tex. Att'y Gen. Bien. Bep.
728.
"Connecting link" has been defined in another jurisdic-
tion as the city streets that actually connect two county
highways without the need to travel over any other highway
except the city street in question. Cit y of Independence v.
Board of County Commissioners of Montgomery County, 38 P.2d
105 (Kan. 1934). A Texas court relied on this definition to
construe article 6674n-2, V.T.C.S., which authorizes counties
to condemn land within municipdlities when needed for a road
that forms a "connecting link" in the county road system.
City of Piney Poillt Village v. Harris County, su ra at 367.
in our opinron, the same definition applies to--E--
t e term
"connectins iink" in the context of the cc.untv's general law
powers to kork on city streets. See Hughes v: County Commis-
sioners of Harris Count y,,~ at819: Attorney.General
Opinion V-261 (i947). I a county may maintain streets
within a city that provide a route for traveiing from one
county highway to another.
The terms "integral part" and "connecting link" have
sometimes been used interchangeably. See City of Brecken-
Tidge v. Stephens County, supra. in ouropinron, this usage
indicates that a connecting iink becomes part of the county
road system. See City of Piney Point Village v. Harris County,
supra. The usrf the term "connecting link" as well as
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Honorable Henry Wade - page 4 (H-1018)
"integral part" in the opinions emphasizes that the county
may build a road through a city in order to link two completed
roads, as well as to extend or complete a single road, Of
course, the county lacks authority under general law to
spend county funds for improvement of city streets which do
not for-man integral part of the county road system or
connecting links in it. Attorney General Opinion No. V484
(1948).
Youinquire whether Dallas County may maintain an existing
city street that forms a connecting link with two county roads.
In Attorney General Opinion WW-1401 (1962) this office said
that the county could pave or maintain city streets that form
a connecting link with the county road system, provided, of
course, that the city consents. You also ask whether Dallas
County may construct a new county road within the city limits.
The countv has authoritv to enaaae in new construction within
city limits, Edwards v.*Dallas&County 232 S.W.Zd 262 (Tex.
Civ. App. -- Dallas 1950, no writ), a;d to pave unpaved
streets; Smith v. Cathey, 226 S.W. 158 (Tex; Civ. App. --
Dallas 1920, no writ): Attorney General Opinions M-561 (1970);
WW-1401 (1962), provided the newly constructed road will form
an integral part of the county road system, or a connecting
link. Whether a new road wholly within the limits of an in-
corporated city would bear the appropriate relationship to
existing county roads depends upon the surrounding facts.
You ask whether the county may build or maintain a city
street that connects with two county roads on a right-of-way
owned by the municipality. We find no requirement in the
cases or opinions that the county own the right of way of a
city street as a condition to paving or maintaining it. See
City of Breckenridge v. Stephens County, supra; Attorney -
General Opinions H-345 (1974); M-561 (1970); WW-1401 (1962);
V-261 (1947).
You ask whether Dallas County may, pursuant to articles
2356, 2357 and 6794, build a new bridge within a city, on a
street that has never been a county road. You also ask
whether the county may maintain existing bridges located
within a city that were not built by the county and are not
located on a county road. Article 2356, enacted in 1895,
provides in part:
Said [commissioners) court may erect
bridges within the corporate limits Of
any city or town to the same extent and
under the same conditions now prescribed
by law for the construction of bridges
outside the limits of any city or town.
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Honorable Henry Wade - page 5 (H-1018)
Acts 1895, 24th Leg., ch. 107 at 164. It also provides for
co-operation between the commissioners court and the city to
build a bridge within the city limits. Another statute on
the same subject was passed at the same legislative session,
and must be harmonized with article 2356. Martin v. Sheppard,
201 S.W;Zd 810 (Tex. 1947). Article 1146 also enacted in 1895,
provides as follows:
The board of aldermen shall:
. . . .
2. Have and exercise exclusive control
over the streets, alleys and other public
places within the corporate limits: pro-
vided, that, with the consent of the board
of aldermen, where streets are continua-
tions of public roads, the commissioners
court shall have power to construct bridges
and other improvements thereon which faci-
litate the practicability of travel on
said streets.
Acts 1895, 24th Leg., ch. 63 at 89. Since these two statutes
were passed at the same session of the Legislature and cover
the same subiect matter, they should be construed tosether.
Board of School Trustees of Young County v. Bullock Common
School Dist. No. 12, 55 S.W.2d 538 (Tex. Comm'n. App. 1932,
jdqmt afTa). We believe that the county's bridge building
authority under article 2356 is limited by the requirements
in article 1146 that it build bridges within corporate limits
only as continuations of public roads, and only with the
city's consent. Thus, article 2356 does not authorize the
commissioners court to build bridges on city streets unless
they form part of the county road system. See Reports of the
Attorney General 1914, 1916 at 728 (distingzhing "roads"
from "streets") . Although the limitations of article 1146
apply only in the case of general law cities, see Leach v.
Coleman, 188 S.W.2d 220, 229 (Tex. Civ. App. --Austin 1945,
writ ref'd w.o.m.1, we do not believe that the county has
greater power under article 2356 to build bridges in home
rule cities than it does in general law cities. Home rule
cities may exercise exclusive dominion over their streets and
may reject county proposals with respect to the development
of streets. V.T.C.S. art. 1175, 59 12, 16; Harrison County
v. City of Marshall, supra.
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Honorable Henry Wade - page 6 (H-1018)
Article 2357 requires the commissioners court to main-
tain any bridges it owns that are located within city limits.
See City of Llano v. Wilbern, 152 S.W. 474 (Tex. Civ. App. --
Austin 1912, writ ref'd). The statute does not require that
the county have built the bridge or that it be located on a
county road. However, we express no opinion as to the county's
authority to acquire a bridge which it did not build and which
is not located on a county road. Article 6794, which gives
the commissioners court general authority to build and repair
bridges, does not specifically address its power to do so
within city limits, and in our opinion, adds nothing to the
statutes already discussed.
You inquire whether any of our foregoing answers would
differ if the county used bond issue proceeds instead of
road and bridge tax revenues to make the various improvements
described. The county may expend road bond funds to improve
city streets once all conditions are met, City of Breckenridge
v. Stephens County, supra, and may also spend road and bridge
tax funds for that purpose. Attornev General Opinion V-261
(1947). Funds from-both sources may-be used to-build bridges.
Tex. Const. art. 8, S 9; Aransas County v. Coleman-Fulton
Pasture Co., 191 S.W. 553 (Tex. 1917).
You finally ask whether the Interlocal Cooperation Act,
article 4413(32c) confers on Dallas County any power to main-
tain city streets that is not otherwise conferred by law. The
Act permits local governments, including cities and counties,
to contract to perform governmental services. The parties
may agree to perform any governmental services "which all
parties to the contract are legally authorized to perform. .. . ."
Sec. 4(b). The Act sets out other requirements for interlocal
contracts. In our opinion, Dallas County may contract under
the Act to maintain city streets which it is not authorized
to maintain under other law. The county has legal authority
to perform governmental services relative to street and
road maintenance. V.T.C.S. art. 2351. Cities also have such
authority, either under general law, V.T.C.S. art. 1016, or,
in the case of home rule cities, under their charters. V.T.C.S.
art. 1175, 66 16-18. We do not believe that both parties must
have authority under other law to maintain a particular street
before they may contract with respect to that street under
the Interlocal Cooperation Act. The Act expressly autho-
rises contracting for services such as fire protection, tax
assessment, and the provision of water, which, as a practical
matter, would seldom be performed in a place subject to the
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Honorable Henry Wade - page 7 (H-1018)
jurisdiction of both contracting local governments. In
Attorney General Opinion H-28 (1973) we decided that a con-
servation and reclamation district could contract with a home
rule city or other local government to receive certain fire
protection services. The home rule city could thus contract
under the Interlocal Cooperation Act to provide fire protec-
tion services outside of its own territory.
Although we stated in Attorney General Opinion H-345
(1974) that the Interlocal Cooperation Act merely codified
existing general law with respect to the improvement of city
streets by the county, that statement must be limited to its
context. Attorney General Opinion H-345 concerned an agree-
ment by which the county would maintain city streets forming
an integral part of the county or state road system. Since
the county had adequate legal authority to undertake such a
project aside from the Interlocal Cooperation Act, that Act
added nothing to its legal authority in the particular case.
The county may, however, contract to maintain city streets
which are not part of the county road system, as long as it
follows the provisions of the Interlocal Cooperation Act.
Any services performed must be for an adequate consideration,
to avoid violating constitutional provisions against making
a gift of public funds. Tex. Const., art. 3, 9s 51, 52; At-
torney General Opinions No. H-520 (1975); S-46 (1953).
SUMMARY
The Dallas County Road Law does not re-
quire county roads to be maintained under
one consolidated road and bridge district,
nor does it limit the county's general
law powers to work on the streets of an
incorporated municipality.
Dallas County has authority under general
law to build or maintain city streets which
form an "integral part" of a county road
system or a "connecting link" therein if
the city consents. The county need not own
the right of way in order to work on the
street. The county may not build bridges
on a city street unless it forms part of
the county road system. The county must
maintain bridges it owns within city
limits. Where a county has legal autho-
rity to work on city streets, it may
spend either road bond proceeds or road and
bridge tax revenues for that purpose.
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: .
Honorable Henry Wade - page 0 (H-1018)
.
Under the Interlocal Coooeration Act,
Dallas County may contract-to work on city
streets which do not form an integral part
or connecting links in the county road sys-
tern.
r.
fiery truly yours,
Attorney General of Texas
APPROVED:
DAVID M. KENDALL, First Assistant
Opinion Committee
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