Untitled Texas Attorney General Opinion ( 1962 )

Honiwablc W. C. Lindsey Opinion No. WW-1401
Criminal District Attorney
Beaumont, Texas Re: Whether a county may
pave and malntaln.rrtreets '
located within a munlcl-
pality and related ques-
Dear Mr. Lindsey:' tlone. _.
In your recent'letter, the opinion of this office
waa requested on the following questions:
1. With regard to main~thoroughfaresthat are a part of and
connect with the County road ayatem--
(4 May the County pave or maintain such a
road without.obtalnlngthe consent of
the munlclpallt$r?
,
0’) May the County pave or maintain such a
road with the~conaent of the mtZniclpallty?
‘(CLMay the County'enter into an agreemint'or .-
contract.wlththe munlblpal.lty for reimbureeT
tientof the total cost or any part thereof?
: (d). May thn County submit a bid ~$6~themu?iicipallY
ty In competftlon with p9iv&te,.qotitraOtore?
tel. Muat the mu~lclpallty eollolt competitive
bids if It wishee to pay the County for the
coat of the constructfon?
(f) May the Precinct Commissionermake an agree-
ment with the municipality, or doea It require
action by the Commlaaloncr@Court to enter
into such an agreement?
2. Vould your answers to the aerlea of questions enumerated
also apply.to main thoroughfaresof a municipality that
parallel or intersect the roads described In question 1
above? (' . :
. .
Hon. VI. C. Lindsey; page 2, (MS-1401)
2. ~foulcl your answers to the series of questions alto apply
to all streets and roads within a munlclpalltyO
4. i%iythe County undertake the paving of parking areas and
driveway8 of.churches,labor unions and other non-profit
organizationswith or without an agreement for relmburse-
ment of costs?
Article 6703, Vernon's Civil Statutes, provides that
the commissionerscourt shall assume and have control of
the streets and alleys In all cities and Incorporatedtown8
In Texas which have no de facto municipal government In the
discharge of Its offlcliir~s. Due to the nature of
your questions we assume that your inquiry relates ,tomunicl-
palities having at least a de
- facto government.
Questions 1 (a), 1 (b), 2 and 3 relate to the authority
of the County to pave and malntaln certain streets located
within the corporate llmlts of a municipality and, for this
reason, will be considered together.
~:As
a.genoral.proposltlon,the law Is settled that the
control and juriadlctlonover &recta of a munlclpalltyare
exclusive In the munliiipality.However, the coWe have,held
that ~thecounty has the right to expend funda f0.rthe Improve-
ncnt of streets within the corporate limits of's munlcipalltg
when,the atreets form a.part of the ,countyroad system dr a'
connoctlnn link with the county road system or St&e hlnhwava.
~onaZ?nta. Ske Attorney Qene&lrfi-
.
I This authority ia‘llmited to,the class of‘atreeta dea-
crlbcd. Unless the particular at,reetInvolved forma a part
of the county road system or a connecting link with the county
road.systemor a State highway, the commIssIoneracourt is.
without authority to expend funds to maintain the s-e.
Question number 1 (b) la answered in the afflrmativ&
qucttlonsnumber&l'(a),'2 and 3 are answered In the negative.
Question number 1 (o)'a&umes that the County may pave
or maintain a street within the corporate limits of a munlcl-
pallty and asks whether the County can contraot with the muni-
clpallty to pay,part or all of the costs Involved. We are
or tho opinion that this quostlon should bc answered in the
f Brockenridgcv.
':s:wR*
contracts
HO;. M.-C. Llrdacy, TJdiJC 3 &f-1401)
;dllchprovided for the county to pay part of the cost8 for
malntalnlng an extension of a county.road situatod.wlthln
the corporat+elimits of a munlclpallty. Thla opinion Is
consistentwith Attorney General's Opinions V-971 (1949),
V-261 (1947) and 0-4256 (1941).
There Is no apparent reason why the commlsslonerscourt's
authority to contract for part payment does not also Include
the authority to contract for payment of the entire cost, should
that be the commissionerscourt's judgment.
Question number 1 (d) asks If the County can submit a
bid to the munlclpallty, In competition with private contrac-
tors, for the Job of paving or maintaining such a street. We
are of the opinion that this question should be answered in
the negative.
As has often been held, the commissionerscourt Is a
court of limited jurisdiction and hae only such powers as
are conferred upon It by the expreae terms of or by necessary
implicationfrom the Constitution and statutes of Texas.
Chlldresa Count v. State 127 Tex. 34 J 92 S.W.2d 1011 (1936);
Van Rosenberg v.
hm$ 73 S.W. 289 &v.App. 1915, error
re . ; V. Sterrett, 252 s.w.2d.7 Civ.App. 1952, error
280 S.Wi Q
ref., n.r.e.); Roper v. .Iis.ll; 2 9 (Clv.App. 1925).
We know$f no provision of law which authorizes a county
to bid upon the public construction of a munlclpality., In.
our vlew,'thlsproposal cannot be said to be within the perfonn-
ancc of a governmental function necessary to county business.
To the contrary, the propoeal suggests engaging in the road
constr?lctlonbusMess In a proprietary capacity, which Is not
authorxzedby law. See Bennett v, Brown County W.C.I.D. No. 1,
153 Tex. 599, 272 S.W.2dm (1954) d rllllerv. El Paso
County, 136 Tex. 370, $50 S.W.26``100?(1&lj which fiGmat
a,county can perform only governmental~functions: .To the same "
effect see Attorney Ckneral's Opinions WW-19? (1957), S-55
(1953)and V-763 (1949).
Quo&ion 1 (e) asks whcthor the munlclpalltjr mtiataollc-
it bids if Ii wants the County to do the job. We know of nd
reason why the municipality cannot contract to pay the county,
just.as may the county contraot to pay the munlclpalltp,for
all or part of the cost of paving or maintaining a atreet wlth-
q? the class of streets that a county is authorized to maintain.
Bowcver,this q~estlon must be decided by the governing body
of thc.:aunlcipallLyconcerned based upon the particular laws
controllingthat municipality.
Questlcn 1 (f) asks whether the Precinct ConniSsloner
aan make an agreement with the munlclpallty for the County to
pave or malntaln a street. We are of the oplnkon that this
question should be answered in the negative beaause, in the
absence of special circumstancesnot evident here,,only the corn--
nisstoners court has charge of the business affairs of the
county, and It alone has authority to make contracts binding
upon the county. Canales v. Laughlin, 147 Tex. 169, 214 S.W.
2d 451 (1948);
193 S.W. 440 (C
184 S.W. 1063 (
S.?!.475 (Clv.
Question 4 asks whether the County can undertake the
paving of parking areas and driveways of churches, labor unlonrr
and other non-profit organizationswith or without reimburse-
ment of costs. We are of the opinion that this question should
be answered in the negative.
This office held in Attorney Ceneral’a Opinions V-1348
(1951) and 0-6670 (1945) that the commlaslonere’courtha6 no
authoritv. whether with or without comvensatlon.-touse or
~ermlt Go-be used county owned ~oq&meiH? ~uponprivately owned
proporty; The only~exceptlonwe find is Article 2372c, Vernon’s
Civil Statutes, which authorlzoa the use ofcounty road equip-
mcnt for soil oonservatlonimprovement of private property and
Cor which the aounty shall receive compensation.
._ SUM.MA RY
With the*conaent of the munlcSpallty’
Involved, Jefferson County is authorized to
expend funds to pave.or maintain atreeta,whlch
~form a part of the County road system or a
connecting link with a County road or a State
highway and which are located within the aor-
porate llmlts of the munlalpallty. The County
is authorized to contra& with a munlalpallty
to pay all or part of the cost to pave or
maintain ouch a street. However, only the
CommioolonersCourt can make.the oontraot
binding upon tha County. 910 County Itself
can do the paving or maintenance work, but
It cannot submit a bid and porfon euoh.work
for the munlclpallty. !lheCounty has no au-
thority, whether with or without oompersation,
'IIk: w. c. 1.&lrlocy,
irag 5 (.WW-1401)
to use Cczmty owned equipment upon..private-
fy owned,properly,with the exoeptlon or
certain soil conservationimprovements
defined In Article 2372~ of Vernonjs Civil
Statutes.
Very truly youra,
MILL WILSON
Attorney General of Texae
F. R. Booth
Asslatant
FRB:ms
APPRGV$
OPINION COMMI!L'lXF,
W. V. Geppert, Chainnan
Mitchell Steven8
Put Bailey
Jack Goodman
Elmer,McVey
RRVIlE!!FOR TkE ATTORNEYGENERAL
By: Leonard R388lliOZ’e