Eonoreble Ft. C. Id&lain DistrictAttorney 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 oitywhere 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 rsquest our opinion on the following question?.

"Cw moneys derived from the sale of bonds that may be euthorieedto bs sold under end in conformitywith saidArticle 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 extendingthrough the city?"

The facts underlyingyour problsm ars briefly es followsr An election has been orderedwhereat the proposition of the issunece of $2,OOO,OCOof road bonds is to be suhnittedto the qualified property taxpayingvoters of Commissioners t Prscinct.$2, and that said bonds are to be issued in accordancewith Article 752a.of the Revised Civil Stetutes of 1925, end for the purpose stated therein, namely -- "For the purpose of the construction,maintenance end operation ofmacedamieed, graveled orpeved roads end turnpikes, or in add thereof.' Further,that said Ccnmnis~sioners' Precinct@ includes within its limitsthe.City of Conroe, a municipal corporationduly and prdperly incorporated;that there
are tuu public roads or highways extending through the corporatelimits 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 declared purpose that the proceeds from the sale of suchbonds as may begauthorized at the above cited electionare to be used for paving or hardsul'facing a greatmany streetswithin 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 highTrays are a part of the State design&x? highway system,we ars of the opinion that the county or. districtmuld te preciuded frommakirg sny improvement on either of said two highnays. See Section 3 of House Eil1#%0%, passedby the 46th Legislature,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 appropriationmade by the Legislature out of the State Bighway Fund."

Further, said sectionprovidesr

"Kc further improvementsof said system shall be made with the aid of orwith any conoys furnished by the countiee except the acquisition of rights-of-way which may be furnishedby the counties, their subdivisionsor defined road districts "

.
As e generalproposition of law it is settled that the control end jurisdictionover streets of a municipal corporntion is exclusive in said corporation. Boxever, the courts have construedto the counties the right to expend fends in the improvementof streetswithin **the** corporate limits of e citynhen said streetswere also e oublic road, particularlywhen donewith the consent of the city. See Hughes vso County Commissioners'Court of %rris **county, 35**  **S.?T*** **(24** 818. This same conclusionwas reached by the Supreme Court in the case of the City of Breckenridgevso Stephens County,40 S.li;(2d) **43**,wherein the court said;

"The commissioners'courtmay expend county rbad bond funds for improvement sf city atree,ts

forming pert of the county roads where made with city's~ consent."

Tne general underlyingtheory bein, 7 that such improvementsmust he sonfinsd to streets formingpart of a county road system end also that the co3;ilt.y must have the consent of a municipal corporationwithinwhich said stres~ts

may 3e looatad. The Supreme Court in the Breckenridge case,above ci%ed, distinguishedbetween streets forming a pert of a countyroad system and streetsgenerallywitbin the city. In that case the courtheld 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 'same case held that the.countv couldnot bind itself to aid the City of Breckenridge in improving 'streets." It is obvious that they intended to draw a distinctionbetween streets, speaking generally of the arteries of traffiswithin a municipality, end such streets es form n continuaticn of a count;r road, but in any event a streetwhich had b-seen designated by the countyas 8 pert of its system. Itwill 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 involvingthe expenditureof proceeds from bonds issuedby a read district. However, in our opinion, the law-s ap;?liceble

tp the county are 1iker:ise applicable to the district.
you'are thorefor advised that in our opinion the coun0~ isrrithout au~thority

to pave .thestreets of the City of Conroewhere such streets do not constitute a pert of the county road syctem.
Very truly yours,

ATTCWEY GEDBBAL OF TBXAS By/s/ Clarence E..Crone

Assistant