Untitled Texas Attorney General Opinion ( 1965 )

TIEICE ATTOHNEY GENERAL
OF TEXAS
Mr. Henry Wade Opinion No. C- 480
District Attorney
Dallas, Texas Re: Whether land originally acquired
by the County of Dallas by quit-
claim deed and used by said
county as a county road and
later annexed to the City of
Dallas, can be lawfully abandoned
and closed by the City of Dallas
without permission of the county,
Dear Mr. Wade: and related questions.
You have submitted for our consideration the following questions:
1. When a city annexes territory wherein is located a
county road, does the county thereby lose title to such
road:
if the county holds fee title?
If the county holds easement title?
2. Can the city thereafter lawfully abandon and close
such road without permission of the county:
if the county holds fee title?
Iii 1 if the county holds easement title?
3. If the city proceeds to abandon such road, does the
county retain any title In such roadway:
If the county holds fee title?
Ik 1 If the county holds ea,sement title?
In view of the hereinafter mentioned authorities, we deem it
unnecessary to answer the question regarding the estate ac-
quired by the county by virtue of the deed you have submitted
for our consideration. County roads and city streets belong
to the State, and therefore there was never any title in the
County of Dallas that would pass to the City of Dallas after
annexation. Title to city streets is vested in the State.
28 Tex.Jur.2d 162, Highways and Streets Sec. 134; City of
Mission v. Popplewell, 156 Tex. 269, 294 S.W.2d 'j'lpm);
-Texarkana v. Southwestern Tel. & Telegraph Co., 106 S.W. 915,
-2271-
I -. ,
Mr. Henry Wade, page 2 (c-480)
(Tex.Civ.App. 1907).
In regard to title to county roads, in the case of Robbins
v. Limestone County, 114 Tex. 345, 268 S.W. 915 (19r
the Supreme Court held:
“While the title, under the authority of law,
was taken in the name of the county and under
statutory authority, and the county was authorized
and charged with the construction and maintenance
of the public roads within its boundaries, yet it
was for the state and for the benefit of the state
and the people thereof.”
In the same case on page 918, the delegation of some powers
to another political subdivision was stated thus:
“The establishment of public highways being
primarily a function of government belonging .to
the state,
.- . the right
- to_ establish them resides
prlmarlly ln the Legislature, and, ln the absence
of constitutional restrictions, the Legislature
mag exercise that right direct or delegate It to
a political subdivision of the state, or to such
other agency or instrumentality, general or local
in its scope, as It may determine.”
The City of Dallas Is a Home Rule city and is governed by
Articles 1165-1182f, Vermonta Civil Statutes. Dallas Co,
W.C. and I.D. No. 3 v. City of Dallas, 149 Tex. 3b2, 233
. W. 2d 291 (19501.
By Article 1175, Section 18, Vernonts Clvll Statutes, the
Legislature delegates to the cities powers therein contained:
“TO control, regulate and remove all obstructions
or other encroachments or encumbrances on any public
street, alley or ground, and to narrow, alter, widen
or straighten any such streets, alleys, avenues or
boulevards, and to vacate and abandon and close any
such streets, . . . over and upon the streets or
avenues of such city. ” (mnphasls added)
In Feris v. Bassett, 227 S.W.233, (Tex.Civ.App.. 1921), It
Is stated:
An incorporated city or town under
our &&es has the exclusive control of all the
streets and highways within the limits of the
corporation, and, when such corporation in Its
-2272-
Mr. Henry Wade, page 3 (C-480)
creation or by subsequent extension embraces
within its limits a portion of a public county
road, such road becomes thereafter a street of
the city and is no longer subject to the control
of the county, and all the rights of the county
in such highway passes to the city."
Again, in City of San Antonio v. Bexar Metropolitan Water
District, m S W 2d 491 (Tex.Civ.App. 1958, error ref.1,
6-t held:' '
"When the city annexed the road, it succeeded
to all authority over the road that the county
theretofore held."
Accordingly, whatever authority the county had over the road
in question inured to the city upon annexation of the area.
The county thereupon lost all authority over such road. Under
Article 1175, Section 18, supra, the city could abandon and
close such street.
In answer to question No. 1, the county never held any kind
of title to the street in question. In answer to question
No. 2, under and according to the profllslons of Article 1175,
Section 18, permission of the county to close a city street
is not necessary. The answer to question No. 3 is that the
county never owned title to the road or street at any time.
SUMMARY
Title to roadways and streets is in the State
and not in the county or city. The City of Dallas,
after annexing an area including a county road, does
not need the permission of the county to abandon and
close such road or street.
Yours very truly,
WAGGONER CARR
Attorney General
BY
gavavidLongoria 0
Assistant Attorney General
DL:gm
-2273-
Mr. Henry Wade, page 4 (C-480)
APPROVED:
OPINION COMMITTBE
W. V. Geppert, Chairman
Harold Kennedy
Bill Allen
Milton Richardson
Paul Phy
APPROVED FOR THE ATTORNEY GENERAL
BY: T. B. Wright
-2274-