Untitled Texas Attorney General Opinion

Tmx A-rroxa~~Y GENERAL OF TEXAS Au- il.- January 24, 1948 Hon. Roy C. Snodgrass 0p1Ill0n no. v-484 County Attorney potter county Re: Authority of Commisslon- Amarillo, Texas ers Court of Potter County to expend money fromtheRoad&Brldge Fund to improve city etreeta. Attention: Hon. Johu Peterson Asst. County Attorney ' Deer Mr. Snodgrass: .Your request for an opinion of this department &leting to .the,expendlture of fun&s from the Road enil Bridge Fund oft Potter County in the improvement 'of cer- tain streets in the City of Amarillo is sulmtsntial&y a8 fol~lows: "The Conmiissloiers Court.desirea to know whether or hot they aan legally expend moxiey froa~.the road and briiie fund~on ~cdrtaln streets within the City of eil&o and I am aending you under aeparatti ccver a map which inoludea the greater portion of Potter County, Texas, and shows all. county roads and olty streets and which map has marked on 1% the road8 desired tb be improved. . "The roads to be iinproved are: "At the Qlemiood School, 24th Street from Cleveland to Miwor, Mirror Street from24th to 25th, I 25th Stre~et Srom .Slirror to Cleveland. 'At ha Senb&n School 8th Street from Ho&d to Mirror, Mirror Street from 7th to 8t@, :. Roberta Street rrom 6tbto 8th, 7th Sttieet from Roberts to Wlllia@., Wllll~s Street from 7th to 8th, Hon. Roy C. Snodgrass, page 2 (v-484) 8th Street from Williams to Ross. “At the Dwight Morrow School, 16th Avenue from Arthur to Houston. “The tentetive,agreement Is as follows: The City of Amarillo will pay for the excavat- ing atid grading of the roads. The school dis- tricts will pay for the topping of the roads. The property owners will pay for the curb and gutter work and the County will pey for the calliche and for putting it on the ground. “We would like to point out some addi- . tlonel facts: “(1) Thst all of this work Is to be done in Precinct #l and be,tter than gC$ of the road and bridge fund Is made up from automobile license fees paid by residents of Precinct #L “(2) Thet better.tban gC$ of the peo- ple of Potter County reside in Precinct #l. “(3.) That.the road improvements to be -,done are eround,and fitiai,thr.ee achools~and that’ students of these schools in some 3n- sjx.ncix come from other preolncts~-and during the winter months, the roads not beinghisrd~ tkrfaced creates an -bearable sltuati6n.~ "(4) Numerous people in the City of ~. Imarillo have polnted out to the ~Comm.lssioIi- era Court the inequity~ in their ~ml.r&~of not being~~able to spend oounty road end bridge funds ror street& in the City of Amarillo in Precinct,#l where,over. gC$ of the money in making up the fund comes from, except on. main a.rteries through the city whlch~ oonnect with Foads Coming into'the city limits and which roads are slpeady Improved ade&ately.. .- “In view of the above *set. out ?a$& the Coomlasloners Court aubml$s to you the ques- tion .of whether or not the county road and bridge fund can be spent oti th6 Greet& enum- erated and set out above and designated on the map furnished you and under ‘the rrc+adi-tiotls reflected in the faot aitu+q,n set out above.n 0 inion No. V-261, addressed to you, dated June 23, 19&7, held that County Road and Bridge Funds Hon. Roy C. Snodgrass, page j (V-484) , may be expended in the Improvement of city streets with the consent of said city, provided auoh streets ace an integral part of the county road system, citing City of Breckenrldge v. Stephens County, 40 S. W. (24) 43, and Hughes v. County Commissioners Court of Harris County, 35 s. w. (26) 818. The question now presented is wheth- er the ConrPiasloners Court of Potter County has the authority to improve streets in the City of Ama~lllo which a0 not form an integral part or the.county road system of said county. It is assumed from your factual sltuatlon, aa well as the map attached thereto, that the streets in question are not city streets forrping a part of the aounty road system of Potter County. In the ca8e of Uilliams v. Carrolf, 182 S; W. 29, the court held that a stre6t geperelly-metis si pasa- ageway within the bocuids of 8 municipal corporation, while a road means a county highway forming a emoa- tion between the alty limits of one oity or town and the city limits of another city or town: and tmile a ~street is a himay iti LS not +eoesaarlJy true~.that a hlghway.+s a street. As to th&qnesiXon of.eiclusive jplrlbdlctlon over atriets, tti court In Oabbept v. City of Bro~ood, ~.176 s. Wi (26) +4, sga~ea68 follows:. "'In i8gl this~.same ~questionwas~.8gain presented :in B mf00avi..@onsaleS County, 79 Tex. 218,.1 & s..~Y.,lO57; 1058, 'wherein the Su~eme~CoUrt d@olaxe$ that the.adm+. miasiotieral.oourt was without juriatictlon tq opehup a road. through ~lana iitbin th8 .. .oorporate lhltp of the olty of aoliaa. mat the wora.juri.saicti~ wag used :aa- I v$aedly Sa shown by t$~'holalnga that.*.,; prooeedings~~were without effect and in: oapable of ra$.~floation, even aiter the exclusion of the psrtioular aeotion of-, :. the road from the olty ,liri$s,~ there-~ placing it withLn.the juri8aiatbn or'the ~aomisslone~ta oourt. Thlb reeult&.l.oi~ oourfse, from the familiar prlnolple that whatiever La, voWas ~diatinguishea froth ', ~. -.. merely voidable, oamot Abe valldate&bg ratification. -.The.declsion in Borw+v,. Oonzalea County, aupra, has~so far as we. know, x&eve? been:overruled and has been followed in the following oases: Benat Hon. Roy C. Snodgrass, page 4 (v-484) v. Dall.as County, Tex. Clv. App., 266 S. W. 539, writ refused, Rueter v. State, 43 Tex. Cr. R. 572, 67 S. W. 505; Blultt v. State, 56 Tex. Cr. R. 525, 121 S. W. 168, dissenting 0 lnlon; cowana v. State, 83 Tex.~Cr. R. 29f; , 202 s. W. 961; City of Breckenrldge v. Stephens County, Tex. Clv. App., 26 S. W. 24 405. It la true that the last mentldned case (by this court) was reversed by the Supreme Court, but that in so doing that cburt ala not overrule the Noruooa caSe is clearly shown by the following quotation from the opinion: 'Of course, the town or city governing board primarily has para- mount jurlsalctlon of the streets and highways thereof, and the commlssloners~ court would have no authority to improve streets or highwaya wlthin'munlcipalitles In conflict. with the jurisdiction of the. city to improve the SBBIB.~" Article 6703, Vernon's Clvll Statutes, pro- vides with reference to Comndssioners~Court that: 1, said court shall assume and have c&&l 0s the streets aad alleys In all cities and Incorporated towns in Texas which have no defacto municipal government in the active discharge 0s their 0rritai duties.'! The aeclalons of the Texas courts have repeeit- ealy held that the Commlssloners~ Court is a court of limited jurlsdi&+lon and has only such powers aa are con- ferred upon it by the statute! and Conatltutlon of this State, either by expressed terms or by neoessary lmpll- cation. Section 18 of ArtiOle V, of the Texas Constltu- tion, Article 2351, V. C. S.; Vbn Rosenberg v. Lovett, 173 S. W. 508; Galveston H. 6s S. A. Ry. Co. v. Uvalde County, 167 S. W. (26) 1084; 11 Tex.,Jur. 564. By virtue of the fact that the jurisdiction of city streets 1s vestea~ exclusive1 in the City Qovern- ment and in the absence of author 1 ty granting to Commle- aloners' Courts authority over st.reets in Said cities, 1t.i.s the opinion of this Department that those streets in Amsrlllo whloh a0 not form an integral part 0s the county road system or connecting llhks ln oounty rqaas, Hon. Roy C Snodgrais, page 5 (v-484) may not be improved or repaired by expenditures from the road ana bridge runa of said oounty. In your opinion request you state that it is inequitable not to be able to spend the county road and bridge fund for streets in the City of Amarillo in Pre- cinct #l since at least 90$ of the money oomes from said precinct. This Department is not ii~ a position to give an opinion as to the dlvlslon of funds inasmuch as the same Is left to the sound discretion of the Commlsslon- era' Court. Suffice it to say that as long as the Com- missioners' Court exercises its beat judgment and do&a not act arbitrarily in regard thereto, its findings wiJ.1 not be disturbed. In this connection we are enoloalng copies of Attorney General's Opinions Ros. O-1091 and v-347., while we are in accord that your factual sit- utation reflects a hardship, nevertheless, an examlna- tlon and review of all the statutes. relating thereto do not infer the existence of authority.to Improve city streets not a part 0s the county road system but indi- cates the contrary. .If, in the future, your factual situation is such that roads are oonstpucted by the county and leaa,to the streets in question in such a manner that they necessarily become a part of the coun- ty mad system sufficient authority may exist for im-. proving the streets as a part of the system. However, the duty of supplying such authority for the improve- ment of the streets in ydur factual situation is vest- ed wholly with the Legislature. ( SUMMARY A CommlsslonersS Court may not legally expend funds from the road and bridge fund of a county in the improvement 0s city streets wlthln a city which do not'form a part of the caunty road system or conneotlng links in a county road. Yours very truly APPROVRD: ATTORREP OBlt?XUL OF TEXAS F&T ASSISTANT A- WRERAL Burnell Waldrep BW:mv-encl. Assietant