TEEATTORNEY GENERAL
OF I‘EXAS
January 21, 1970
Honorable John Lawhon Opinion No. M-561
County and District Attorney
Denton County Courthouse Re: Obligation and authority
Denton, Texas of County Commissioner
for city streets within
Dear Mr. Lawhon: Incorporated city In county.
Recently you have requested an opinion from this office.
We quote from your request as follows:
"One of our county commissioners has requested
that the following questions be submitted to you for
your opinion.
"la. Does a county commissioner have the
obligation to furnish culverts for use on the city
streets of Ponder, an Incorporated city in his pre-
cinct which does not levy city taxes? b. Should
the Commissioner make a charge for the culverts?
"2. The city council of the city of Ponder,
Texas has been authorizing contractors to dig up
city streets to lay water lines for the community
water system, while at the same time expecting the
county commissioner to keep up the city streets.
Under these circumstances, who has authority $0
give such permission to dig up these streets?
In regard to roads within a particular county, the Com-
missioners Court acts pursuant to Section 3 of Article 2351, Ver-
non's Civil Statutes, or Articles 6762,et seq, Vernon's Civil
Statutes, or some local road statute applicable to a specific
county. We were unable to find a specific road law applicable to
Denton County and therefore this opinion is predicated on the
proposition that none exists.
-
From the above Articles dealing with the general road
authority of the County, It Is clear that where there are lncor-
porated cities within a given county the streets within the city
I ,-2676-
i
Honorable John Lawhon, page 2 (M-561)
are generally subject to city control. The Commissioners Court,
by virtue of Artlole 6703, Vernon’s Civil Statutes, Is specifically
authorized to act In certa3n clroumstances. Article 6703 Is
quoted a6 follows:
“The commissioners court shall order the
laying out and opening of public roads when
necessary, and discontinue or alter any road
whenever It shall be deemed expedient. No
public roads shall be altered or changed ex-
cept to shorten the distance from end to end,
unless the court upon a full lnvestlgatlon of
the proposed change finds that the public in-
terest will be better served by making the
change; and said change shall be by unanimous
consent OS all the commissioners elected. No
part OS a public road shall be discontinued
until a new road is first built connecting the
parts not discontinued; and no entire first or
second class road shall be discontinued except
upon vacation or non-use for a period of three
ykars. Said court shall assume-and have control
of the streets and alleys in all .citles and in-
corporated towns In Texas which have no defacto,
municipal government In the active discharge of
their official duties.” (Emphasis added.)
A de facto government would mean a government In fact
operating with or without good Salthh but a government which for
some reason Is not legal or “de jure . Black’s Law Dictionary,
(Fourth Ed., 1951) page 479.
For purposes of this opinion we will assume that the
Clty’of Ponder has at least a de facto government, and therefore
the underlined language of Article 6703 Is not applicable.
When faced with the question of whether a county may
pave or improve, etc. a street within an incorporated city, the
courts hold that the county may do such work only if the city
consents to It, and provided the street Involved forms a con-
necting link In the county road or state highway system.
In the case of Smith v. Cathey, 226 S.W. 158 (Tex.Civ.
App, 1920, no writ) the court held the county may pave a road
within a city if the city does not object. At page 160 the court
stated :
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Honorable John Lawhon, page 3 (~-561)
'From the organization of this state the
Commlssloners' courts of the different counties
have been given control and jurisdiction over
roads and highways, and this has been restricted
by the law In respect to incorporated cities and
towns, which Is still respected In those cases.
In this case the town council makes no objection
to the county taking this part of the highway
under Its control. When matters of this kind
came before the court In a case reported In 18
Tex. 874, State v. Jones, the question of juris-
diction of the commissioners' court over roads
and highways is first reported. In deciding
that case the Supreme Court was content to adopt
the opinion of the lower court, which says:
'The county court does, It Is true, possess
a general jurisdiction, coextensive with the
limits of the county, to lay out and establish
public roads and highways, but, as that jurls-
diction Is conferred by a general law which is
applicable to every county In the state, It Is
at all times subject to be changed or modified
by special laws, acting upon the same subject
In particular counties, or special localities,'
etc. 'It has been said In argument that, If the
law Incorporating the town takes away from the
county court the power to lay out and regulate
roads within the town limits, the council do not
choose to exercise the power conferred upon it,to
lay out streets and highways, then the people of
the county will be subjected to the Inconvenience
of having no road for travel or the transportation
of their commerce through the town tract,' etc.
'Such a consequence, In my judgment, by no means
follows. Until the town council acts under the
authority conferred by its charter, the general
authority of the county court over the subject
matter continues to exist, and may be exercised.
It Is only when both bodies attempt to act In
opposition to and In conflict with each other
that the power and authority of one must cease
and yield to that of the other, and in such a
state of things I am of the opinion that the
authority of the county court must yield to that
of the town council.'
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.
Honorable John Lawhon, page 4 (M-561)
Subsequent to the Smith v. Cathey case, supra, the
Texas Supreme Court in City of Breckenrldge v. Stephens County,
120 Tex. 318,.40 S.W.2d 43, (19311 concluded: (Pages 43-44)
"After a careful Investigation OS the
authorities, Including the Constitution and laws
of this State, we have reached the conclusion that
the Commissioners' Court does have lawful authority
to emend county road bond funds for the 1mDrovement
jurisdiction of the munl$ipallty, or with Its con-
sent or approval. . . . (Emphasis added.)
In addition to the above cases you are referred to
Hughes v. County Comm. Court of Harris County, 35 S.W.2d 818
lTex.Clv.App. 1931, no writ).
S.W.W 262 (Tex.Clv.App., $0
v. City of Marshall, 253 S.W.2
ref . n.r.e.1; Attorney General
Based upon an analysis of the above statutes and cases,
It is our opinion that the Commissioner In question may act In
improving a city street of Ponder with consent (express or Implied)
of the city council, provided such street Is a link in the county
or state road system, City of Breckenrldge v. Stephens County,
supra. If such consent Is given, then the Commissioner may ex-
erclse the same jurisdiction over such city street as he does
over any county road, and a county commissioner then has no au-
thority to charge for such work or material furnished, and by
the same token would have the discretion whether or not to per-
form such work.
In regard to your second question, it Is our opinion
that the city would clearly be authorized to permit a contractor
to Install the city's water system , and IS necessary dig up the
city streets without permission from the county commissioner,
Harrison County v. City of Marshall, supra.
SUMMARY
The County Commissioners have the discretionary
authority to maintain a street, which Is sn Integral
part of a county or state road system, within an ln-
corporated city, provided the city ha& expressly or
lmplledly consented to such work.
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. . -
Honorable John Lawhon, page 5(~-561)
V+'3 truly yoyrs,
Prepared by James C. McCoy
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
Alfred Walker, Co-Chairman
Malcolm Quick
Tom Bulllngton
Jo Betsy Lewallen
CammLary
MEADEF. GRIFFIN
Staff Legal Assistant
NOLAWHITE
First Assistant
.
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Untitled Texas Attorney General Opinion
Combined Opinion