Untitled Texas Attorney General Opinion ( 1960 )

THEATTORNEYGENERAI.
OFTEXAS
November 18, 1960
Mr. Ed H. McLaran Opinion No. w-962
County Attorney
Madison County Re: Whether the Commissioners'
Madisonville, Texas Court has the authority un-
der Article 6711,Vernon's
Civil Statutes, to entertain
jurisdiction on the appli-
cation of two taxpaying citi-
zens for the establishment of
a road over the land of an-
other to the county road sys-
Dear Mr. McLaran: tem.
We are in receipt of your request for an opinion from
this office concerning the following question:
"Would the commissioners' court of said
county have authority under Art. 6711,V.C.S.
of Texas, to entertain jurisdiction on the
application of two of its taxpaying citizens
for the establishment of a road or passageway
over the land of another to the county road
system?"
In your letter, you provided us with these additional
facts. The property In question is two lots located within
the incorporated limits of the City of Madisonville. Two
fences were built by an adjoining land owner which complete-
ly blocked the passageway to their properties and they filed
a petition with the Commissioners1 Court demanding a passage-
way over the land of the person who built the fences. The
city acquiesced to the county any authority it had In the sub-
ject matter.
Article 6711of Vernon's Civil Statutes states in part
as follows:
"Any lines between different persons or
owners of lands, any section line, or any
practicable route, practicable route as used
herein, shall mean a route which will not un-
duly inconvenience the owners or persons
Mr. Ed H. McLaran, Page 2 (w-962)
occupying the land through which such route
shall be declared, that the Commissioners
Court may agree on in order to avoid hills,
mountains or streams through any and all en-
closures, shall be declared a public highway
on the following conditions:
"1. One or more freeholders, or owners
of lands, persons, firms or corporations, intO
whose lands there Is now no public road or
public means of access, who desires an access
road connecting his said land with the county
public road system, may make a sworn applica-
tion to the Commissioners Court for an order
establishing such road, designating the lines
sought to be opened, and the names and resi-
dences of the person or persons affected by
such proposed access road, and stating the
facts which show a necessity therefor. (Em-
phasis added)
". e s
"4. The damages to such landowners shall
be assessed by a jury of
_ freeholders,
__ as_.for .
other public roads, and ail costs attenaing tne
proceedings In opening said road shall be paid
by the County, and the Commissioners Court shall
not be required to keep such road worked by the
road hands as in the case of other public roads,
but shall place said roads in the first instance
in condition for use as access public roads. Acts
1884,ist C.S., pe 20; G.L. vol. 9, p. 553;Acts
1930, 4LstLeg., 5th C.S., p. 207,ch. 62, [31;
Acts 1953, 53rd Leg., p. 1054, ch. 438, B 1."
The Texas courts have repeatedly held that the Commis-
sioners' Court is a court of limited jurisdiction and has
only such powers as are conferred upon it by statutes and
Constitution of this State, either b expressed terms or
by necessary implication. Section 15 of Article V of the
Texas Constitution, Von Rosenberg v, Lovett, 173 S.W. 508;
Galveston H.'& S.A. Ry. Co. v. Uvalde County, 167 S.W. 2d
084;11 Tex. Jur. 564.
As a general proposition of law, It is settled that
the control and jurisdiction over streets of a munlcipalltv
are exclusive in that city or town. However, the courts
Mr. Ed H. McLaran, page 3 (W-962)
have held that the county has the right to expend funds
in the improvement of streets within the corporate limits
of a city when such streets form a part of the county road
system, or a connecting ltnk in State highways, when done
with the consent of the city. City of Breckenridge v.
Stephens County, 120 Tex, 318,40 S W 2d 43 (1931).
v. County Commissioners~ Court of H&&s Count
2d 818 (Tex. Civ. App. 1931); Attorney GeneralTs Opinion
v-261,dated June 23, 1947; Attorney General's OpinionO-4256,
dated December 12, 1941; Attorney General's Opinion V-971,
dated December 16, 1949.
The question now is whether the Legislature has confer-
red upon the Commissioners I Court the authority to estab-
lish a county road within a municipality so as to provide
a road for property owners who have been cut off access to a
street within that municipality and to expend county money
for the building of such a road and fnr its maintenance.
Paragraph 1 of Article 6711of Vernon's Civil Statutes
provides in part that:
"One or more freeholders, or owners of lands,
. . e into whose lands there is now no public road
or public means or access, who desires an access
road connecting his said land with the county pub-
lic road system,. . ." (Emphasis added).
It is our opinion that persons who do not have an ac-
cess to their property and seek to come within the provis-
ions of Article 6711,must be in a position_to Establish
clearly that such road will connect to the "county public
system" and form a part of the county road system or a con-
necting link in State highways.
House Bill 77 of the 54th Legislature; which wascodi-
fied by Vernon's Cl.vi!.
Stati>.ces
as Article >6674n, provides
that the State Highway Commission as well asthe Coun$'
Comqissionersl Court have tineauthority and,the power to
exercise the right of eminent domain within the boundaries
of a~municipality with the prior consent of the governing.
body of such municipality and provides that the county in
which the State highway is to be located may pay for same
out of the County Road and Bridge Fund, or any available
county fund.
House Bill 670 of the 56th Legislature, which was codi-
fied by Vernon's Civil Statutes as Article 6674n-2, provides
in part as follows:
Mr. Ed H. McLaran, page 4 (w-962)
'Section 1. The right of eminent domain
within the boundaries of a municipality with
prior consent of the governing body of such
municipality is hereby conferred upon counties
of the State of Texas for the purpose of con-
demning and acquiring land, right of way or
easement in land, private or public, except
property used for cemetery purposes, where said
land, right of way or easement is, in the judg-
ment of the Commissioners Court of such county,
necessary or convenient to any road which forms
or will form a connecting link in the county
road system or a.connecting link ,In a State High-
way. . ..'I
It is assumed from your letter that the City of Madison-
ville would give its consent to the Commissioners' Court
should they seek it.
This office held in Attorney General's Opinion ``-872,
dated June 29th, 1960,in part as follows:
"The quoted sections of Article 6711 clear-
ly indicate the intent of,the Legislature in
adopting amendments to the statute. The statute
as amended is to remedy the situation existing
when land owned by a person or corporation is so
surrounded by other land owned by other persons or
corporations that it may not ,be reached without
crossing private property. This statute author-
izes the connection of such isolated land with
the county road system." (Emphasis added).
In answering the auestion as to whether Article 6711is
mandatory or directory, we held in this same opinion that:
"It would be inaccurate to describe the
statute, in its entirety, as being either 'man-
datory' or 'directory.' The statute lists cer-
tain procedures which must be followed, and
directs some actions of the county commissioners.
However, the order which may be issued by the Com-
missioners' Court after hearing the evidence is
subject to the discretion of the court."
It Is our opinion that your Commissioners' Court has
been given the authority to entertain jurisdiction of this
application, if the provisions of the statute have been
complied with and if such road will connect with the county
Mr. Ed.H. McLaran, page 5 (W-962)
public road system. Further, it is our opinion that the
Commlssloners~ Court has the right of eminent domain to
acquire this property within the boundaries of this munici-
pality where prior consent of the governing body of such
municipality Is so conferred on the county.
SUMMARY
The Commissioners'.Court has the
authority under.Article 6711 and Artl-
cle 6674n-2, Vernon's Civil Statutes,
to entertain jurisdiction of an appll-
cation of two landowners for the estab-
lishment of a public road over the land
of another to the county public road
system.
Yours’ very truly,
WILL WILSON
on F. Pesek
LFP:mm:ms
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
W. Ray Scruggs
Llnward 'Shivers
,Martha Joe Stroud
Joe B. M&laster
REVIEWED FOR THE ATTORNEY GENERAL
BY: Leonard Passmore