Untitled Texas Attorney General Opinion ( 1942 )

OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
scnorable 5%. F. Xiisks
:&unty Attorney
.&O C0unt.J
@idd~n6s, 7bxt.m
prsr sir:
33: can the
your letter of r eating an oppinion
d thersin reads ae
treets; 2. (Ian
olty, and also provides the
ok for the oommunlty surround-
outside of the olty limits?
w I my opinion that the City oan not
donate money for the purchaee of a fire truak
axoapt by an agreement to furnish its use to
the entire aounty, 1 BP or the opinion that tha
oounty aan agree with the alty to help In the
maintsnanae 0r streets. I beaa thin latter aon-
tention on Smith va. Calthy 228 S. Y:. 198 and
Eughee v. County Comel~sloner~ Court Of Ha@8
county, 35 a. ?Y. 2nd ala, wherein it la held
a
Honorable ;E. F. Kieke, Fag3 2
that the oounty has authority to help maintain
streets within the oity limits, providing the
oity does not objeot.
“1 should appreaiate an opinion in regard
to the above rrom your department. I believe
that perhaps the opinion reoently given Travis
County tith reference to a donation to some Army
unit may be of help to me and I should like to
have a copy or same.”
It is stated in our Opinion Zo. o-1190:
“As a general proposition 0r law it la set-
tled that the oontrol and jurisdiotlon over
streets of a muniofpal oorporation is exclusive
in said corporation. However, the oourta have
construed to the oountles the right to expend
funds in the Improvement of streets withfn the
oorporate limits of a alty when said streets
were alao a pub110 road, particularly when done
with the consent of the olty. see Hughes VS.
County Commlsel.onere’ Court 0r IIerris County,
35 s. YI. (2d) 818. This same aonalusion was
reaohed by the Supreme Court in the case of
the City of Breokenridge vs. Stephens County,
40 s. w. (2d) 43, ivherein the oourt said:
“*The aommiseioners court may expend coun-
ty road bond funds for improvement of oity
streets rorming part oi aounty roads whhsre made
with city’s oonsent. *
*The general underlying theory being that
such improvements must be confined to streets
forming part of a oounty road system and also
that the aounty must have the oonsent Or a muni-
alpal oorporation within whloh said streets may
be looated. The Supreme Court in the Brecken-
ridge case, above alted, dlstlnguished between
streets forming a part of a oounty road system
and streets generally within the city. In that
oase the oourt held that the ocenulssloners~ court
could bind itself to expend oounty road bond funds
to aid the City of Breokenridge in improving
c ‘streets forming part of oounty roads, f and In
,277
Honorable ?:. F. Xieke, Yage 3
the ssme ease held that the county aould not
bind itself to aid +he City of Zreokenridgo in
improving ‘etreete’ . It Is obvious that they
intended to draw a dietinotion between streets,
speuking generally of the arteries of trafflo
within a munioipalitg, and.suoh streets ae form
a continuation of e oounty road, but In any
event a street whioh had been designated by the
county as a part 0r Its system. . . . n
In this State it is well settled, aa a general
proposition of law, that the oommissioners’ oourt Is a
oourt of lImited power and jurisdiotion, and has no powers
or dutlea exoept those whioh are olearly set forth and de-
fined In the Constitution and statutes, and those powers
that arise by a neaessery implloatlon. The authorities
supporting this general statement are so nu-zerous we do not
deem It neoeaeary to oite any of them.
:.ith reference to your first question you do not
state whether or not the streets mentioned aonetitute a
part of the aounty road syatem. however, in the sbsenos
of any statement showing that said streets are a part of
the (runty road system and in view of Cpinion No. O-1190
and the authorities oi ted therein we respeotfully answer
your rir3t question in the negative.
Ile now ooneider your seoond and third questions.
fiticle .S351a-1, V.n.C.S., reads as follows:
‘*The Commissioners Court in all oountiea
of this State shall bs authorized to furnish
rlre protection and fire fighting equipment to
the oitizanu of such county residing outaide
the city limits of any olty, town, or vllleg4
within the county snd/or adjoining oounties.
?he Commissioners Court shall hsve the author-
ity to purchase fire trucks and other fire fight-
ing equi;.%ent by first advortisinC end reoeir-
ing bids thereon, as provided by law. The Con-
missioners Court of any county of this State
shall also have the authority to enter bUi0 Oon-
tracts with any oity, town, or village within..
the county and/or adjoining oonnties, upon such
terms and conditions as shall be agreed upon
Ronorable ?X. F. Kleke, Page 4
between the.- Commissioners Court and the govern-
ing body of such city, town, or village, ror
the use of the fire trucks and other fire fight-
ing equipPGent or the oity, town, or village.
It fe apeoliicaUg provided that the acts of
MJ person or persons while fl.$ting fires,
traveling to or rr0n fires, or in any manner
turnluhing rim proteotlon to the oitizens or
a aounty outside the oity limits of any olty,
town, or village, shall be oonsldered as the
acts of agents of the oounty In all respeots,
- notwithstanding ouoh person or Persons may be
regular employeea or firemen or a olty, town,
or villa&e. No city, town, or village within
a county and/or adjoining oountles shall be
held liable for the aots of any of its employees
while engaged in righting fires outside the city
limits pursuant to any contract theretofore en-
tared into between the Commissioners Court of
the oounty and the governing body of the oity,
town, or vlllsge. Provided however, that any
tire equipment purohosed by any County shail be
done only by a majority vote of property own-
ing taxparers and qualified voters of suoh ooun-
ty at a oounty-wide eleotion oslled tor such
PurPose. "
The above quoted statute do& not authorize a
oounty to donate any money to a oity within or without the
county to purohase a rlre truok. 3s have been unable to
find any other authority authorizing a oounty to donate
money to a city for suoh purpose.
Artlola 2351a-1, suprs, apaoirloauy authorize8
tbe oommIssIoners* 00w 0r any 00unty 0r this state to
enter Into contraots with any city, town, or village within
the county and/or ad oining aounties upon auoh terms and
oondltione as shall e a reed upon between the oommisslonars'
court and the governing i %;
ody of suoh dlty, town or village
ror the use or rlre trucks and other fire fighting eqtiPlr,ent
of a c lty, town, or village. Lt will be noted that the above
mentloned statute speclf loally provldea, "provided however,
that any fire equipment purchased by MY county shall be done
only by a majority vote or the property Owning taXPaYerS
and qualified voters or suah county at a county-wide else-
tlon called ror auoh PUrPOse." Therefore, in reply to your
third question, as stated nbove, YOU sre advlsed that lt is
Ronorabla Z. 2’. Kleke, Taga 4
our opinion that e oouuty cannot !;ioe or donate to a olty
or town within the county any amount of money for the ain-
tenanoe of ,streete in said olty or to-n. Dut a county oan
legally make expenditures for the improvement and malntan-
snco of streets in e atty or to%% within the oounty ahan
rald 8tmots form or oonstitute a portion of the oounty road
aystam,when the oonsent or the city or town is had. However,
ss above indioated, the oommlssloners* court or any county
is euthoricad to enter into contraots with any oity, eto.,
within the oounty and/or adjoining counties, upon suoh tewm
end conditions 88 shall be agreed upon between the oommlsalonars*
court and the governing body or such aity, etc., for the use
or fire truoks end other rlre righting equipment oi the olty,
tmn, or village, in oompllance with irtlole ZMla-1, supra.
.You have requested a oopy of our opinion to Travis
County with refemnoe to a donation or appropriation to pur-
ohasa reading room equipment for Camp Mwla. ‘Phls opinion la
80. O-3963 and we anolose a oopy or the aema ror your inror-
nation and alao a oopy of our Opinion Ho. 04190 above m+n-
tloned.
Truetlw that the roregolng fully answers your ln-
wiry, we are
Yours very truly
ATi’ORIiEYGEXERALOF TE=
irdell Williama
asslatant