Untitled Texas Attorney General Opinion ( 2007 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
October 9,2007
The Honorable Mike Jackson Opinion No. GA-0576
Chair, Committee on Nominations
Texas State Senate Re: Whether under article III, section 52(b) and (c)
Post Office Box 12068 of the Texas Constitution a county may use road
Austin, Texas 78711-2068 bond funds to construct, maintain, or operate a
municipal street that connects on only one end with
a county road or state highway (RQ-0598-GA)
Dear Senator Jackson:
On behalf of Galveston County, you ask whether under article III, section 52(b) and (c) of
the Texas Constitution a county may use road bond funds to construct, maintain, or operate a
municipal street that connects on only one end with a county road or state highway, in light of City
of Breckenridge v. Stephens County and Attorney General Opinion No. JC-0036. 1 See City of
Breckenridge v. Stephens County, 40 S.W.2d 43 (Tex. 1931); Tex. Att'y Gen. Ope No. JC-0036
(1999).
Article III, section 52(b) and (c) authorizes a county's use of bond funds to construct,
maintain, or operate roads:
(b) Under Legislative provision, any county ... , upon a vote
of two-thirds majority of the voting qualified voters of [the county],
may issue bonds or otherwise lend its credit in any amount not to
exceed one-fourth of the assessed valuation of the real property of
[the county], ... and levy and collect taxes to pay the interest thereon
and provide a sinking fund for the redemption thereof, as the
Legislature may authorize, and in such manner as it may authorize the
same, for the following purpose[] ... :
(3) The construction, maintenance and operation of
macadamized, graveled or paved roads and turnpikes, or in aid
thereof.
1See Letter from Honorable Mike Jackson, Chair, Committee on Nominations, Texas State Senate, to Honorable
Greg Abbott, Attorney General of Texas (June 29, 2007) (on file with the Opinion Committee, also available at
http://www.oag.state.tx.us) [hereinafter Request Letter].
The Honorable Mike Jackson - Page 2 (GA-0576)
(c) Notwithstanding the provisions of Subsection (b) ... ,
bonds may be issued by any county in an amount not to exceed one-
fourth ofthe assessed valuation of the real property in the county, for
the construction, maintenance, and operation of macadamized,
graveled, or paved roads and turnpikes, or in aid thereof, upon a vote
ofamajorityofthe voting qualified voters ofthe county, and without
the necessity of further or amendatory legislation. The county may
levy and collect taxes to pay the·interest on the bonds as it becomes
due and to provide a sinking fund for redemption of the bonds.
TEX. CONST. art. III, § 52(b)-(c).
Though article III, section 52(b) and (c) does not expressly limit the use of road bond funds
to county roads, the Texas Supreme Court in 1931 concluded that a county may under article III,
section 52(b) and (c) "expend county road bond funds" to improve municipal streets only "where
such streets form integral parts of county roads or state highways," provided that the municipality
consents to the improvements. City ofBreckenridge, 40 S.W.2d at 43-44. In that case, City of
Breckenridge, the court concluded that Stephens County had the right to improve a municipal street
that "was a connecting link and integral part of a county road and state highway." Id. at 43, 45.
Attorney General Opinion JC-0036 read City ofBreckenridge to state that "proceeds ofbonds issued
or taxes levied pursuant to article III, section 52(b) or (c) may ... be used" only for county roads.
Tex. Att'y Gen. Ope No. JC-0036 (1999) at 10-11. Under JC-0036, only municipal streets that are
integral parts of or connecting links in a county road or state highway are county roads for purposes
of City ofBreckenridge. 2 See id.at 9.
Your question concerns Galveston County, which is contemplating using road bonds issued
under article III, section 52(b) and (c) "to construct improvements on various" streets "located within
the cities of Tiki Island, Bayou Vista, Clear Lake Shores[,] and Jamaica Beach.,,3 By the word
"improvements," we understand you to refer to the construction, maintenance, or operation of the
2Transportation Code section 251.012(a)(4) authorizes a county to spend county money to fmance any
construction, improvement, maintenance, or repair of a municipal street authorized under section 791.032 of the
Government Code "ifthe commissioners court fmds that the county will receive benefits as a result ofthe work." TEX.
TRANSP. CODE ANN. § 251.012(a)(4) (Vernon Supp. 2006). Section 791.032, Government Code, allows a local
government, including a county, to enter an interlocal contract with a municipality to fmance work on municipal streets
or alleys, "including portions of the municipality's streets or alleys that are not an integral part of or a connecting link
to other roads or highways." TEX. GOV'T CODE ANN. § 791.032 (Vernon 2004); see also ide § 791.003(4)(A) (Vernon
Supp. 2006) (defming the term "local government" to include a county). Although Transportation Code section 251.0 12
and Government Code section 791.032 were added in 1999 in response to certain "attorney general opinions[] citing
supreme court precedents," the statutes cannot overcome the constitutional requirements imposed upon the use ofroad
bond funds under article III, section 52(b) and (c). House Comm. on Urban Affairs, Bill Analysis, Tex. H.B. 508, 76th
Leg., R.S. (1999); see SouthlandLife Ins. Co. v. Barrett, 172 S.W.2d 997, 1000 (Tex. Civ. App.-Fort Worth 1943, writ
refd w.o.m.) (stating that nothing in a certain statute could be relied upon to overcome the constitution).
3Letter from Honorable James D. Yarbrough, Galveston County Judge, to Honorable Mike Jackson, Chair,
Committee on Nominations, Texas State Senate (June 20, 2007) (attached to Request Letter) [hereinafter Yarbrough
Letter].
The Honorable Mike Jackson - Page 3 (GA-0576)
streets. Galveston County is particularly concerned about using road bond funds to construct,
maintain, or operate several roads that are connected to county roads or state highways on one end
only. See Yarbrough Letter, supra note 3, at 1-3. It asks whether City ofBreckenridge and Attorney
General Opinion JC-0036 require that "the street must both begin and end at a county road and/or
a state highway" or that "only one end of the city street must begin at a county road or a state
highway regardless of where it ends." Id. at 3.
Under City ofBreckenridge and JC-0036, a county may use funds from road bonds\issued
under article III, section 52(b) and (c) to construct, maintain, or operate a municipal street that is a
connecting link in or an integral part of a county road or state highway. See City ofBreckenridge,
40 S.W.2d at 43-44; Tex. Att'y Gen. Ope No. JC-0036 (1999) at 9. A street that is not a connecting
link in a county road or state highway may be an integral part of a county road or state highway. A
street is an integral part of a county road or state highway if the street is necessary to complete or
essential to the county road or state highway. See THE NEW OXFORD AMERICAN DICTIONARY 881
(2001); cf Gorman v. Consol. Edison Corp., 488 F.3d 586, 592 (2d Cir. 2007) (defining the term
"integral" for purposes of the Fair Labor Standards Act) (quoting WEBSTER'S THIRD NEW INT'L
DICTIONARY 1173 (unabridged 1986)). If a street is an integral part of a county road or state
highway, it need not be a connecting link; conversely, a connecting link need not be an integral part
of a county road or state highway.
Whether a particular municipal street is a connecting link in or an integral part of a county
road or state highway is a question of fact that must be resolved in the first instance by the county
commissioners court. See TEX. CONST. art. III, § 52(b)-(c); City ofBreckenridge, 40 S.W.2d at
43-44; see also Tex. Att'y Gen. Ope No. GA-0446 (2006) at 18 ("Questions of fact are not
appropriate to the opinion process."); cf Terry v. Edgin, 561 P.2d 60, 66 (Okla. 1977) (concluding
that whether a particular road or street is a connecting link in the county highway system is a
question of fact to be decided on a case-by-case basis). In certain circumstances, a commissioners
court reasonably may find that a street that connects with a county road or state highway on only one
end is an integral part ofa county road or state highway. Under City ofBreckenridge, a county may
use road bond funds to construct, maintain, or operate a municipal street only if the municipality
consents. See City ofBreckenridge, 40 S.W.2d at 43-44.
The Honorable Mike Jackson - Page 4 (GA-0576)
SUMMARY
If a county determines that a particular municipal street is a
connecting link or an integral part of a c.ounty road or state highway,
the county may use the proceeds of road bonds issued under article
III, section 52(b) and (c) of the Texas Constitution to construct,
maintain, or operate the municipal street.
Very truly yours,
KENT C. SULLIVAN
First Assistant Attorney General
NANCY S. FULLER
Chair, Opinion Committee
Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee