Untitled Texas Attorney General Opinion ( 1962 )


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  • 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
    

Document Info

Docket Number: WW-1401

Judges: Will Wilson

Filed Date: 7/2/1962

Precedential Status: Precedential

Modified Date: 2/18/2017