Untitled Texas Attorney General Opinion ( 1947 )

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OFFICX OF
~?EE &!TQlRX3X GENE-
AUSTIN. %‘RXAS
paICEDANIEL
f#wmmY
Oe.mxuL June 23, 1947
Ron. Roy C. 3noQrase, Jr.
County Attorney
Potter County
Attention: Eon. John PMmaon,
Asalatant Oounty Attorney
1
‘.. Opinion No. V-261.
.RO: Authority of the OOlPr
. IlllesloJmre’ oourt of
Potter aouJlty to eIpend
oounty funds in the im-
hvement of oity etr0etB
Dear Mr. anoagrarrsi Pn Amarillo.
Your request for an opinion of this Demrt-
ment la eubetantlallp aa $011~8:
9he Oomml~eionere~ Court of Potter
County.ie dsalroue or epetnding approxlmate-
lp $25,000.00 out of the county road and
bridge ftind for the laprovement of BtrOeta :
In the Olty of Amarillo. It la their plan I
to work with the oitJi offioials on thlrr
program and on eaoh part of the oity street0 .
whloh are improved a peroent ‘of oounty run&r -
will be used, and an equal perosnt of oity
/ funds will be used and a psroent will be
paid by saoh Lndddual land owneradjoinin
the street. The queetloo ha8 ariaen as to
whetheror not the Oommlesionere~ Oourt oan
\.. legally expend oounty road and, bridge iundr
for a and all of the etredr in Amarillo
. that 7t ey dealre to lmprwa, or stated an-
other way the quecrtion 18 ame all oi tti
atreota ln Anmrlllo a part of the ~oounty ’
road ryrtam’?
a. . . .
‘3
. .
.a.
s-~.-w.,
Ll
Bon. Roy CL Snodgrass,‘Jr. - Page 2
.
“In Potter County the majority of
the population is located wIthIn the oity
ll,mIt,s and the majority of the roads are
In the city limits and ‘it Is my opinion
that the Supreme Court did nOti mean to
limit a oounty auoh as ours by allowing
the Commissioners’ Court to Only improve
a road In the city limits when it Only
oonneote a oounty road coming Into the
city on one side and going out on the
other. Another feature or Potter County
is that the oity, although situated most-
1y In Potter County, goes into .Randal,l
County on the South side and a strict eon-
struotion of the Stephens County case would
mean that the Comissionere~ Court cannot
spend any funds on roads ooming into the
oity from the ‘North side a8 It would be
impossible to conneot with the oounty road
I on the South side of Amarillo.w
Generally speaking, It Is a well settled
proposition ot law thlit the.oontrol and juriediotion
over streets of a mnIoIpa1 oorporation Is 6xolueIve
in said oorporation and oountiea have the right to 8x1
pend $unde In the Improvement of streets wltbin the
..oorporate limit8 of a city when. said streets are e
part .of the oounty road system and, when done with !he
oonmnt of. the oity;
In the ease of Bughe8.v:. County Comdaaion-
era* Court of Harrla County, 95 9. W. 2d 81.8, sheCourt
etated .a8 hollows: .:
Vhe oOunty haa,.. by virtue of the ‘,’
provisions of the general laws of this
state,. as well ‘as by the firrls County
looal road’law, the right to emend ita.
funds in the improvement of~a street
within the’ oorporate.’ lImIta of a ,oIty
I whloh Is also a pub110 road or the ooun-
ty, espeoially so when such improvement
ia done with thb oonsent and Invitatloh ‘.,
of the city authorities. . .
,
uln~obedIeiioe to I& mandate of
artiole, & ’seotion 9, of the Constftu-
.’ tion, whlioh we tbInk self-enaotlng, the,
‘.
Eon. Roy 9. Snodgrass, Jr. - Page 3
IagIslature In 1911 and 1899 passed
&at Is now artloles 2351 and 2352 of
our Civil Statutes. By article 2351,
the oomaissIoners* oourts were .auth-
orlzed among other things, to lay out
and establish public roads and to ex-
erolse general oontrol over all pub-
lIo roads In their respeotlve ooun-
ties, and by ,artIole 2352 suoh ,oourt
Is authorized to levy and,oolleot
taxes for road purposes and for the
erection of publio buildings, streets,
Bewers, asto. The right to levy and
oolleot taxes for oertaln purposes
oarries with it the right to expend
the funds when so oolleoted to oarry
out the purposes for whIoh it was ool-
leoted. It Is ImaterIal to inquire
whether the dominion and oontrol over
roads’ie given by statutes other than
the artlolea mmd. Artlole 2352
olearly oarrles with It the Inplled
power of the oomaIssIoners~ oourts to.
expend the road funds of their respeo-
tlve oountlee In the Improvement of
streets., espeoially mob streets as
oonstltute a pavt of a pub110 road of
the=county, .beoause by the provisions *
of the Uonstltutlon oountlee are glv-
en the right to levy and oolleot taxer
for the Smprovemnt of both road6 and
otreeta. . .
“The weight of authority seems
to lndloate that under the general law
the. oountlea have the oonetltutional I
and statutory power to expend their
road funde in the Improvement of their
road8 whloh pass through a muniolpal-
ltg, and that they have the right to
lawwe ‘euoh roads though they be
street8 of mob munlol alltles with
the oontient of th8.m ni olpalltlee.
Stat& 0. Jones 18 Tex. 874; Smith v.
Oathey (Ter. Oiv. App.) 225 8. W. 168;
Renat v* Dallarr Oounty her. Olr. 4p.j
266 8. W. 540.”
.
Hon. Roy C. Snodgrass, Jr. - Page 4
The same rule was announced In the ease of
.the City of Breoksnrldge v. Stephene County, 40 8. W.
2d 43, wherein Judge Crltz, speaking for the Supremb
Court; stated as f6llcws:
“After a careful InvestIgatIon
of ‘the authorities, Including the Con-
stitution and laws of this State, we
have reached the oonoluslon that the
oommIssIoners~ court does have lawful
authority to expend county road bond
funds for the Improvement of city
streets where suoh streets form Inte-
gral parts of oounty roads or state
hIghways, whe,n such Improvements are
made tithout conflicting wIth.the jur-
Isalotlon of the munIoIpalIty, or with
Its oonsent or approval. Se&Ion 52,
art. 3, Texas Constitution; State v.
Jones, lb Tex. 874; Smith v. Cathey’
(Tex. Clv. App;) 226 S.W. 158, lb0;
Cannon v. Realty Construction 00.. (Tax.
&lnA~:) e42 S. W. 526, 529 (wrl~ .
Weotlon 52 of artlole 3 ‘of our
State Constitution authorizes dounties
and *polItIoal subdivisions and defined
dietriots thereof to issue bond6 for
the purpose of: ’(0) The oonstruo-
tlon malntenanoe and operation of mao-
adamized, .graveled or paved poads and
turnpikes, or In aid thereof.’
“The oonstItutIonal provl &on, a-
boys referred to expressly~ provides
that road dietriots ‘may or may not in-
oLude towns, villages or munlolpal oor-
poratlons. f Thus by the express terms
of the Constitution a munIolpal oorpor .
atlon may be an Integral part of a road
distrlot. As a part of the road dIa-
trlot, the property of the olty or town
is subjeot to road dlstrlot taxes just
the same as roperty of the dlstrlot
looated out4 Pde 8uoh munIoIpalIty. If
a olty or towq 1s a part of a road ala-
trlot, th? oommIesloners* oourt has the
Ron. Roy C. Snodgrass, Jr. - Page 5 -
right by the very express prcvisiohs ! ,’
OS the Conetltution’to expend road al*;“,’ :
trlot bond funds on such town or city
streets where suoh streets are parts of
and form connecting links in county Of
state highways.*
It will be observed from the foregoing that
if a lmprwememt18 made, the Samemust be oonfimd~ to
the streets forming a part of the county road system,
and must be done with the consent of the municipal cor-
poration within which said streets are located. In the
5reckenrIdge case above cited, a dIstInotIOn was drawn
between streets forming a part of a county road system
ana streets generally. It was held that the CommIssIon-
ers’ Court could blna Itself to spend county road bond
?uads to ala the oltv In Improving streets forming a
part of the county roaas but oould not bind Itself to
aid the city in IiuDrovInu other streets. It Is obvloue
h t th It aat d dl tI tion between streets,
sp~ahI~yg6~e%.y oi t``wa%er~esn~f traff Ic wlthln a
nunioIpalIty;and suoh streets as form a continuation of _
a county road, but In any event a street whloh has been
designated by a oounty’as a part of It8 system. (Attor- .!
ney~General*s Opinion Ro. o-1190) Inasmoh as h ~county
my, with the oonsqnt of the city, improve the streets
of such olty forming a part of the “oounty road Sy~te@,
it neoessarily follows that a determination must be
made as to what Oonstitutes a county road system. The
Constitution oonuuandsthat the laying out, constructing
and repairing of county roads shall be provided for by
general laws. Aocordlngly general laws have been en-
aoted setting up a State Highway Commlsslon to adminIs-
ter State highways and delegating the oontro&go;e;ty
roads to the County Commissioners’ Courts.
if a public ‘road has been established and used ae a ’ ’
county road, the oounty would be authorized to expend
money on such oounty road If the same traversed a olty,
and any money expended would be authorized on the I,&
prcveImnt of 8treet.s if the same have been established
and used and are an integral part of a oounty road.
(Art. 87*0716, V. C. S.)- By virtue of the Rreohen-
ridge ease, If the street desired to be Improved is a
OonneotIng link in a duly establiehea oounty road the
same rule would be applloable, the “oonneotlng
111W moaning to.unite or link A oonneSt*
link by it6 very name mUSt.be Something that holds two
different Slements toget&?/ (38 Pao:‘(3) 103).
\
r$a Hon. Roy 0. Snodgrass, Jr. - Page 6
. j
, (J 7
In view or the foregoing It .I8 belle&d
that the streets of Amarillo oonneotlng’oounty road8
would be “oonneotlng lInlce* despite the faot that a
ti E
portion of Amsrlllo Is In Randall County. The only
1ImItatIon Imposed by the physical faots would be ,j VR
jurIsdIotIona1; that ls~, the Iaprwement would go All
only to the oounty line. Therefore, It Is the opln-
Ion of this Department that those roads established
as oounty roads and those olty streets of Amarl
formIng an Integral part OS the oounty road system
may be improved by the oounty with the consent of
the olty of Amarillo. Further, those streets form-
ing a oonneotlng link for oounty roads traversing
the olty of Amarillo may be Improved, but only to
the oounty 11~ of Potter and Randall oountles.
‘Your brief SurnIbhed this office has ma-
terIal)y aided In the dlsoueslon of the eubjeot under
’ oonsld~ratlon and 16 appreciated.
t3lmARY‘
County Road and Bridge Funds my be
expended In the improvement of oounty
roads pdsslng through a. olty, though they
be streets of such olty, provided oonsent
la obtained from the olty and.suoh streets
are integral parts of’ the oounty roads;
streets forming a “oonneotlng 1IW on au-
ly eetablIshed county roads may be Improved
by the oounty with the oonsent of the olty.
‘. City of Breokenrldge v. Stephens County, 40
8. V. (2) 43; ,Eughes v. Oounty Comlsslonera*
Court of Harris Oounty, 35 8. W. (2) 8l.8.
Very truly yours,
Bwiajm:libjbrwR By ey3
.
This OHdon nae oonsldered and approved in Confermoe. ..