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December 16, 1949
Bon. Waggoner Cam opinion Ro. v-
county Attorney
Lubbock County Re: Authority o? the-Cou
Lubbock, Terea ty to use road bond
proceeds to buy rlghts-
or way within a city
and to pay condemn&Ion
avnrds against the city
for rights-o? -way on
streets formIng oonnect-
ing links on State hlgh-
Dear Mr. cnrr: rsys .
Your request for an opinion Is substentielly
88 ?0110vs:
On the 5th dey of November 1945, the
Lubbock County Commissioners I Court enter-
ed ita order agreeing with the Texas Highway
Department to furnish rights-of-veg for cer-
teIn highways. During 1945 the city of Lub-
book voted a city-wide bond eleotioa which
Included money to be used for scouring the
city’s pert of the right-of-way vlthln the
corporate limits. The city has oontlnuously
secured Its right-of-way within the corpor-
ate lImIta to the limit of Its own funds on
head. In 1946 Lubbock County voted a countp-
ride bond issue for highway purposes end
thereafter scoured a large ptirtlon of the
right-of-way requfred for highways deslgnat-
ed by the Highway. De artment. The County .~
haa approximately $1B1,465.18 remaining on
hand in this bond fund.
The City o? Lubbock has made and Is
about to make additional extenaiona In Its
corporate llmita BO aa to lnolude the lands
from vhIoh rights-o?+ey are to be secured
by the County and suoh needed lmnds will be
shortly vlthln the oorporote llmlts.
On June 13, 1949, the Commissioners’
mu. Waggoner Cnrr, pegs 2 (Q-971)
Conrt passed Its reaolutlon authorizing the
obtaining of the neoerssry rights-of-way, 8
part of vhIoh vi11 be In the City of Lubbook
after the annexation beoaaes effective.
Question 1. May the road baud fund8 or
Lubbock county be used for the purchase or
rlgm-or-w3y of that pert 0s the hi way 1
and treffla dispersal system Include P within
.,: :.the.,oorporate limits of the City o? Lubbook?
.- .,.,,.I
i...
( .‘. i.: Question 2. In the event the City of
.-,,:.:&ubbook,18 requl+ed to file oondemnatlon
.,. :.:iA~,,~~~dlngs on land irlthin the aorporate
‘, ‘* ..limltr, my the oounty by re.aaon of Its oon-
, t?aot vlth the State Hlghvsy Department in
a’oopexwtion with the City of Lubbock use
suoh funds to pay for the land eotuallg tak-
en end demeges worded by the speolel oom-
missioners or awarded by judgment on eppesl
to the county court?
As 6 generel proposltion of low It Is settled
that the control end jurisdiction ovep streets of 8 mu-
ulcIpellty nrs exclusive In thet city or town. However,
the courts hove held that the oountg hes the right to
expend funds in the Improvement of streets within the
oorporete limits of a olty when sold streets forks 8 pert
of the county road system, or 8 oonnectlng link In Stete
In Attorney Geae~el Opinion Bo.O-7465, doted
Hovember 8, 1946, it van raid:
0 A aounty any not purohsse loud
in an &o&orated olty for highrep purposes
if such purohese ooufllots vlth the jurisdlo-
tion’oi the aunlolprllty; however, It is our
opinion Lt the oity approves, consents to,
acquiesces or oooperates in the purchase, then
the oounty may pmhsse the lend for suoh pur-
pose. This vlev is not inaonslstent vlth the
;i;Ing thet the county meg not oondemn such
. The pover of condemnetlon, If present
.
Hon. Yaggoner Csrr, page 3 (V-971)
4n the ooullty, TOUld be them reg~rbless
o? oouaeut o~..,sp~rovsl of the olty. Swh
power would oooillot with the-jurlrdlotion
of the o%ty ‘over itr,stmets~ theroiore,
nnder .eple authority there Is no such luth-
, ority. in the oounty. But thera IS power to
parahrae with the approval or oonsent or the..
01ty.m
:. ? .’
The above opinioa psrt:oularly emphsslsea the
irat thSt the oounty has the Dower to Durahsse such loud
only ?oi, oounty or &t&e hi ky purpoies. Also see:
smith V. cath~t 226 3.u.15 P (TCU.C~V.A~P.W?O); State
x.874 (18 7)r Benet v. Dallas Counm26
~~~~~~v,A~~;l~~,~~~~~~~~iA~~*on v. lieelx
-9 . . . . -TS!X!,
. error
re..
: ..
‘~ It Ia therefore our opinion that your first
question should be answered in the sffl~etlve.
zo.,the ease or Adams v. Roulnrall county, 280
B.W.759 (!Tex.Collpn.App.l%?b) It wss held that the County
of Roakwall did not have thi power to ooudemn laud tar
rood purposes within the corporate limits of the town of
Royce. The Court mid:
“There does not nppesr to be an crmblgulty
in the language employed by the Legislsture to
expmss its intent as to vhrt agencies should
exeroise~ conttiox’ ovev the highksjs withln’in-
oorporsted cities and towns, OF as to the ext
elusive nature o? that oontrol.” ,
fin the Beast v. Dal188 Co&r Case’, supra, the
cola& steted:
%xcept la cases ooming within the scow-’
of some general or speolal statute In vhich
authority Is expressly ooniemwd, oountles
are without authority to lease out or oontrol
streets and hlghvays o? the incorporated clt-
Lea end tome, or to have property condemned
for such purposes.”
While It has been the long estebllshed opinion
OS this deportment that a oounty may purohnse, with the
oousent or a olty, the right-of-wsy for 8 hlghvey through
an Inoorporated cItyI nevertheless the olty snd county
Boa. Waggoner Cnrr, page 4 (V-971)
lFO r ep a r sterod distinot jurIsdIotions InSorOr es they
relrte to hlghvry n8tters, having reporate and dlstluot
powers and prItllmges; aad the lwlebtedness or one IS
not the indebtednear of the other. Title to property
ooodemned by 8 olty or an ersement ts In the nsme OS the
oity, whereor aQhts-of+rsy purohssed by 6 oounty for
hlghwey prrrposes sze vested in the State o?~Texss.
Artiole III, Section 51 o? the Constitution
0s TOXOS IS in pert 88 r0ii0w8:
.*
“The Leglsl8tw ah811 hove no paver to
arks any grant ox@ruthorlse the meking of my
grant o? pub110 monies to any IndIvidu8l, OS-
aooistlon oS~indIvIdu818, munIoIPe1 or other
corporations rhetsoever. . . .n’
Artlole III, Section 52 of the Constitution OS
Texes provides In pa&:
“The L.egIslatum shall have no power to
euthorlse any county, olty, town, or other
political oorporatlon or subdIvIsIon of the
St&e to lend its credit or to grent public
money or thing of ,valw In aid of, or to any
IudIvIdual essoaIatlon or oorporstlon whstso-
ever, ., . .”
This oousiItutIon%l prohIbItIon. YOU npplied la
the oesea of San Antonlo Inde ent School DIstrIot v.
Boerd of Trwtees, 2m 2d 0 I 1947
ref. n.r.e.), ad City oi il ~:~&,",,~::'108 6%%
251 (Tex.CIv.A~.l~ , error ref.).
In’ the ease of Galveston H.B .S.A.RY.CO. v.
E;td; ~~?J;~~;~~~I~~U.~~ (Tex.CZv.App.1942, error
C
"The CommissIonen~ Court o? a oounty
c has only swh pavers as 8re sxpressly or by
neoessrry implloetlon given it by the Constl-
c tutloa and statutes of this State.”
c Also see: Avt.V, ~0.18, Tex.Const.; Hills
I county v. ~am~ssas county, 90,Tex.603,40 s.w.~EIT~~?);
ti.A .Nor&an nnd Bros. v. Ecissouri K.& T.R.Co., 50 Tex.420,
. . tr(l- .
Pnsslng to the qwstfon presented, It will be
Hon. Waggoner Cam, pegs 5 (v-971)
wa
.
.
noted thet e oounty may not oondemn property lying vlth-
in the jurlsdlotion of the City of Lubbock, end being
without authority to condemn, It neoesserily follows
thet a county mey not peg the oondemnatlon srerds for
the City of Lubbock. The title to swh property or the
easement obtained vould be In the name of the Clty of
Lubbock; end our State Constitution, es set out ebove
end es interpzwted by the oases olted, prohibits the of-
ficers of the oounty from peylag over proceeds of a bond
Issue to e munIoIpel corporation. In the ebsenoe of euth-
ority pe$mIttIng the seme to be done, we are of the opln-
Ion that the County of Lubbook would not be authorized to
pay the oondemnetlon sv8rds egalnst the City of Lubbock.
A CommIssIonersl Court 0s s oounty may
expend oounty road bond funds La the Improve-
ment of city streets forming 8 pert 0s the
county rood system or (I aonnectlng link In a
stete highvey with the consent of the city
end mop purchese lends for rights-of-vey for
St&e highways within the city If the oity
couaents~end~ epproves. Bwhes v. County Com-
mIssioners~ Court of Harris County, 35 3 .W.
d 618 (Tex.CIv.App.1931)’ City of Breoken-
County ‘120 T 318 40 s.
G.Opinfon O-7%6, d&ed
Inasmuch as e county may not condemn lend
vlthtn en Lucorporeted city, a oounty mey not
pay the oondemnatlou award for 8 city on pro-
perty obtained by the olty by oondemnetlon for
rights-of -way purposes. Such payment would be
In violetion of the Constitution. Tex.Const.,
Art.111, Secs.51 end 52; Benet v. Dellaa Coun-
~~~~.sl;~~~~l~T~~~~:;l~~~l~~:~~~~e~cfo~~.
APP-1926) -
Yours very truly,