Honorable D. C. Greer
State Highway Engineer
Texas Highway Department
Austin 14, Texas
Opinion No. c-84
Re: Whether the various cities and the
Texas Highway Department have the
authority to enter into and per-
form contracts with regard to their
respective obligations concerning
the construction, maintenance and
operation of State Highways within
cities, including controlled access
highways, or whether all juris-
diction with regard to such highways
lies with the Highway Commission and
is nondelegable.
Dear Mr. Greer:
In a recent opinion re uest of this office, you state that
for a number of years your ;f
epartment has entered into agreements
(contracts) with various incorporated cities under the provisions
of Article 66734, V.C.S., in order to fix the respective liabili-
ties and responsibilities of the City and the State with respect
to the construction, maintenance and operation of State Highways
within city limits.
Within certain constitutional limitations, the Legislature
has exclusive control over the public roads and highways of the
State. State v. Hale, 136 Tex. 29, 146 S.W.2d 731 (1941).
In 1917 by enactment of Article 6663, V.C.S.,'the Legislature
provided for a uniform system of State Highways, vesting control
thereof in the State Highway Commission.
Article 6673# V.C.S., provides that:
"The Commission is authorized to take over and maintain
the various State Highways in Texas, * * *I'
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Honorable D, CO Greer, Page 2 (C-84)
The Legfslature has given to the Texas Highway Commizsion
jurisdiction to take over and maintain the various State High-
ways in Texas, without limitation.
The highways of the State belong to the State, and the State
has full control and authority over them, While the State has
absolute control over its highways and roads, the Legislature may
delegate to local authorities a part or all of that control.
West V. Citv of Waco,,116 Tex, 472, 294 S.W. 832 (1927); Robbins
v. Limestone County, 114 Tex. 345, 268 S.W. 915 (1925),
In this,connection, in the case of Robbins v. Limestone County,
supra, our Supreme Court said;
"The establishment of public highways being primarily a
function of government belonging to the State, the right
to establish them residesprimarily in the Legislature,
and in the absence of constitutional restrictions, the
Legislature may exercise that right direct or delegate
it to a political subdivision of the State, or to such
other agency or instrumentality, general or local in
its scope, as it may determine. The exercise of this
right by a political subdivision of the State, or by
local officers, is founded upon statutory authority
therefor. The Legislature may exercise oossession of
public roads and control over them, bv and through such
agencies as it mav desipnate. 4:* *w (Emphasis added)
The police power of the State is likewise exercised by the
Legislature. This power covers the regulation of highways and
it may be delegated by the Legislature to local authorities. The
delegatees of the power to regulate the highways, however, have
only such powers as have been expressly granted to them, Box v.
Newsom, 43 S.W.2d 981 (Tex. Civ. App. 1931, error ref, n.rr
New Way Lumber Co. ve Smith, 128 Tax. 173, 96 S.W,2d 282 (19363.
The Legislature has explicitly granted to the State Highway
Commission and incorporated cities, towns and villages the author-
ity and power to contract concerning the many aspects dealing with
State Highways, pursuant to Article 6673-b, which provides as
follows:
"The State Hinhwav Comenfssion is herebv authorized and
empowered. in its discretion. to enter into contracts
o,ragreements with the R-ed
overnin
cities. towns. and villaus whether incorporated under
the home rule orovisions of the Constitution, Special
Charter, or under the,General Laws, providinz for the
locatfon. relocation. construction. reconstruction.
maintenance, control. supervision, and regulation of
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Honorable D. C. Greer, Page 3 (C-84)
designated State highways within or through the coroorate
limits of,such mcoroorated cities, towns. and villages,
and determiniw and fixing the respective liabilities or
resoonsibilities of the parties resultinn~therefrom: and
such incoroorated cities; towns and,villanes are hereby
authorized and emoowered. through the governins bodies
of such cities. towns. and'villajzesto enter into such
contracts or agreements with,the State HiPhwav Commission."
‘(Emphasisadded).
Therefore, as was reasoned in Robbins v. Limestone County,
supra, the provisions of Article 6673-h do not contravene the
Constitution of Texas.
This same proposition appeared subsequently in Articles 6674w
and 6674w-5, V.C.S.
Article 6674~ provides:
"Purposes. The Legislature finds, determines and declares
that the purpose of this Act is to delegate certain addi-
tional authority to the State Highway Commission to pro-
mote the Public'Safety, to facilitate the movement of
traffic, to preserve the financial investment of the public
in its highways and to promote the National Defense.
'Definitions. Wherever used in this Act, 'Controlled
Access Highway' means any designated State Highway with-
in or without the limits of any incorporated city, town
;;a;;iage, whether under the General Laws or by special
including Home Rule Charter Cities, to or from
which agcess is denied or controlled, in whole or in part,
from or to abutting land or intersecting streets, roads,
highways, alleys or other public or private waysO'"
Article 6674w-5, supra, provides;
"The powers, authority, jurisdiction and procedures granted
to the State Highway Department and State Highway Commis-
sion in the foregoing Sections of this Act shall be deemed
to provide additional powers. authority. jurisdiction. and
procedures to those now existing,and conferred by the laws
of the State of Texas upon the State Highway Department and
State Highway Commission and shall not be reparded as in
derogation of anv powers. authoritv. jurisdiction. or oro-
cedures now,existitiqunder the laws ,of.Texas, except that
restrictions placed upon the powers, authority, jurisdiction
or procedures of the State Highway Department and State
Highway Commission by other laws, which are in derogation of,
or inconsistent with the powers, authority, jurisdiction and
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, .
Honorable D. C. Greer, Page 4 (C-84)
procedures prescribed in the foregoing Sections of this
Act or which would tend to hamper or limit the State
Highway Department and State Highway Commission in the
lawful execution of the powers and authority granted by
this Act for the proper accomplishment of its purposes,
shall be deemed to have been superseded by the provisions
hereof, and, to the extent that any other law is in con-
flict with or inconsistent with the provisions hereof,
the provisions of this Act shall take precedence and be
effective,
"The powers granted to the State Highway Department and
State Highway Commission by this Act to perform acts and
exercise powers within the limits of counties, incorpo;
rated cities, towns and villages, including Home Rule
Cities, may be exercised without the consent or agree-
ment of any such~county, city, town or village, including
Home Rule Cities, after complying with Subsection 1 of
Section 2 hereof, (public hearing) and whenever the State
Highway Department or the State Aighway Commission per-
forms any act or exercises any power within the limits
of any county, incorporated city, town or village, in-
cluding Home Rule Cities, as authorized in this Act,
such act or exercise of power shall qualify and render
inexclusive.the dominion of such counties, cities, towns
or villages, including Home Rule Cities, with respect to
the specific streets, alleys, and other public ways
affected by such act or exercises of power, but only to
the specific extent to which such act or the exercise of
such power affects such streets, alle s and other public
ways and their use." (Emphasis added7
Suffice it to say Article 6673-b, supra, is not in derogation
of Articles 6674~ and 6674w-5, and it is a necessary conclusion
that all must be construed together. Therefore, upon authorization
of the State Highway Commission, the Texas Highway Department may
enter into agreements with incorporated cities, pursuant to Arti-
cles 6673-b, 6674~ and 6674w-5, with regard to the respective
obligations of the contracting parties regarding the construction,
maintenance and operation of State Highways, including controlled
access highways within the contracting cities.
The case of Hale v. Citv of Dallas, 335 S.W.2d 785 (Tex. Civ,
App. 1960, error ref.,n.r.e.) sustains this conclusion insofar as
maintenance of State Highways is concerned and does not support a
contention that the State, through its agencies, cannot delegate
any~of its responsibilities for maintenance, construction and
operation of the State Highways within the corporate limits of
cities.
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Honorable D, C, Greer, Page 5 (c-84)
Reference is made to Hale v. Citv of Dallas, supra, at page
790, where the following language is found:
"Coming now to the point at issue, above enactments
empower the State Highway Department without consent
of a Home Rule!City to exercise full authority, rela-
tive to control of State Highways, the Commission like-
wise under Art. 6673-b being empowered (and Home Rule
Cities authorized) to contract with regard to the.
responsibilities of each in 'maintenance, control,
supervision, and regulation;of designated State high-
ways within or through the corporate limits of such
incorporated cities * * *or,cPursuant to such delega-
tion of powers the 1951 contract executed between State
and city, recited that 'maintenance will be assumed by
the State over the highway routes within said city in
strict accordance with the Highway Commission policies
as stated above, governing the maintenance of highways
into and through municipalities * * ep.* 'The State
agrees * * * (2) on streets and highway routes with
shoulders, to maintain the base and surface and the
normal shoulders adjacent to the edges of the pave-
ment * * *'; and that the city will do no work 'in-
volving disturbances or replacement of existing street
improvements, such as cutting pavement for purpose of
installing * * * utility lines or for other purposes'
without first securing permission of the Highway
District Office,"
By virtue of the quoted-portion of the contract, viz.,
"maintenance will be assumed by the State over the highway
routes within said city in strict accordance with the Highway
Commission policies as stated above , governing the maintenance
of highways..." the court held:
*'Weconclude that the contract in question amounts
to a reclamation of authority and control by the
State over designated highways, with effect of
relieving the city of certain pre-existing duties
and placing them on the Highway Department; and there
can be 'no actionable negligence in the absence of
some duty which has been neglected or violated.'"
The Court in the &&g case stated, "In 1939 the Legislature
passed Article 6673-b, for the first time authorizing the state
and city to contract with one another, fixing the control and
responsibilities of each, viz: OOe"O The court then quoted the
,;;;';sions
. . of Article 6673-b. and emphasized the following phrase
ng the resoective liabilities or responsibilities resulting
therefromi"
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Honorable D. C. Greer, Page 6 (c-84)
SUMMARY
The Highway Department may enter into contracts with the
various cities with regard to theirrespective obligations con-
cerning the construction, maintenance and operation of State
Highways within cities, including controlled access highways
which delegate those responsibilities to the contracting cities.
The Highway Department is specifically authorized by statute
to enter into contracts delegating jurisdiction "to the governing
bodies of incorporated cities, towns, and villages * * * providing
for the-location, relocation, construction, reconstruction, main-
tenance, control, supervision and regulation of designated State
Highways within orthrough the corporate limits" of such cities,
towns and villages, and such cities are likewise authorized to
enter into such contracts.
Yours very truly,
WAGGONER CARR
Attorney General of Texas
DAVID s M ANGUS
Assistait &torney General
DSM:dd
APPROVED:
OPINION COMMITTEE
W. V. Gap ert, Chairman
Wm. E. OS1 orn
Joseph Bracewell
Corbin Snow
Malcolm Quick
'APPROVED FOR THE ATTORNEY GENERAL
BY: Stanton Stone"
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