Untitled Texas Attorney General Opinion ( 1948 )

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