Untitled Texas Attorney General Opinion

Eonoreble Ft. C. Id&lain District Attorney Conroe, Texas Daer Sir: Opinion Number O-1190 Rer Authority to expend moneys derived fr+s sale of road bonds In paring streets of en incorporated oity where the streets so paved are not a part of the county road system. We ers in receipt of your letter of Dsoember 8, in which you rs- quest our opinion on the following question?. "Cw moneys derived from the sale of bonds that may be euthorieed to bs sold under end in conformity with said Article 752e legally be used for the purpose of paving the streets of ths City of Conroe ~dwrs the streets so pevsd ers not segmentsor parts of roads or highweys extending through the city?" The facts underlying your problsm ars briefly es followsr An election has been ordered whereat the proposition of the issunece of $2,OOO,OCO of road bonds is to be suhnitted to the qualified property taxpaying voters of Commissioners t Prscinct.$2, and that said bonds are to be issued in accordance with Article 752a.of the Revised Civil Stet- utes of 1925, end for the purpose stated therein, namely -- "For the purpose of the construction, maintenance end operation of macedamieed, graveled or peved roads end turnpikes, or in add thereof.' Further, that said Ccnmnis~sioners' Precinct @ includes within its limits the.City of Conroe, a municipal corporation duly and prdperly incorporated; that there are tuu public roads or highways extending through the corporate limits of seid city, to-itit,Highmay $75, which is a pared street through the city, and Eighty =$105,which is not paved. You state also that it is the declar- ed purpose that the proceeds from the sale of such bonds as may begauthorized at the above cited election are to be used for paving or hardsul'facinga great many streets within the city limits of Conroe that are not any pert of the highxys to be improved in the road district. You refer to the fact that Highmy $75 and Highmy $105 traverse the corpomte liTits of the CitiJof Conroe. If said highTraysare a part of the State design&x? highway system, we ars of the opinion that the county or. district muld te preciuded frommakirg sny improvement on either of said two highnays. See Section 3 of House Eil1#%0%, passed by the 46th Legis- lature, Regular Session, 1939. The pertinent part of said section being: Hon. 5. C. GClain, pgs Z (o-1190) "All further imprcvemenw of said State highnay system shall be madeunder the exclusive and direct 3ontrcl of the State Highmay Department, end with appropri- ation made by the Legislature out of the State Bighway Fund." Further, said section providesr "Kc further improvements of said system shall be made with the aid of or with any conoys furnished by the countiee except the acquisition of rights-of-way which may be furnished by the counties, their subdivisions or defined road districts." As e general proposition of law it is settled that the control end jurisdiction over streets of a municipal corporntion is exclusive in said corporation. Boxever, the courts have construed to the counties the right to expend fends in the improvement of streets within the corporate limits of e city nhen said streets were also e oublic road, particularly when done with the consent of the city. See Hughes vso County Commissioners' Court of %rris county, 35 S.?T* (24 818. This same conclusion was reached by the Supreme Court in the case of the City of Breckenridge vso Stephens County, 40 S.li;(2d) 43 , wherein the court said; "The commissioners' court may expend county rbad bond funds for improvement sf city atree,tsforming pert of the county roads where made with city's~ consent." Tne general underlying theory bein, 7 that such improvements must he sonfinsd to streets forming part of a county road system end also that the co3;ilt.y must have the consent of a municipal corporation withinwhich said stres~tsmay 3e looatad. The Supreme Court in the Breckenridge case, above ci%ed, distinguished between streets forming a pert of a county road system and streets generally witbin the city. In that case the court held that the commissioners' court,could bind itself to expend county roadbond funds to aid the city of Breokenridge in improving "streets forming a part of county roads," and in the 'samecase held that the.countv could not bind itself to aid the City of Breckenridge in improving 'streets." It is obvious that they intended to draw a distinction between streets, speaking generally of the arteries of traffis within a municipality, end such streets es form n contin- uaticn of a count;rroad, but in any event a street which had b-seen designated by the county as 8 pert of its system. It will be noted that the cases above cite<, and from whish we quote, have particular reference to the proceeds of road bonds of a counQr. 'P'&find no cases involving the expenditure of pro- ceeds from bonds issued by a read district. However, in our opinion, the law-s ap;?licebletp the county are 1iker:iseapplicable to the district. you'are thorefor advised that in our opinion the coun0~ is rrithout au~thorityto pave .thestreets of the City of Conroe where such streets do not con- stitute a pert of the county road syctem. Very truly yours, ATTCWEY GEDBBAL OF TBXAS By/s/ Clarence E..Crone Assistant