Honorable Joe Resweber OpinionNo. WW-377

County Attorney Harris County Re: Authority of a county to County Courthouse enter into::,an agreement Houston 2, Texas with an incorporated city for the paymentby the county of awards and judgments in condemnation suits institutedby the city for the acquisitionof rightof-way for public roads; and the authority for the expenditure of county road bond funds for the construction of public roads Dear Mr. Resweber: within said city.

You have recently requested the opinion of this office in answer to the following questions concerning the proposed extension of an existing county road of Harris County into an incorporated city to connectwith another county road running through the city:

"1. May the County enter Into

an agreementwith the City by which condemnation suits to acquire the necessary right-of-wayare brought in the name of the city and the amount of the condemnation award or judgment is to be paid by the County?

"2. Assuming that the County or City has acquired title to the rightof-way necessary for such an extension, may the County expend county road bond funds for the constructionof the road?"

In Attorney General's OpinionV-971 (1949)It was stated:
"While It has been the long

establishedoplnhon of this departmentHonorable Joe Resweber, Page 2 (w-377 1

that a countymay purchase,with the consent of a city, the right-ofway for a highway through an incorporated city, nevertheless the city and county are separateand distinct jurisdictions insofar as they relate to highway matters, having separateand distinct powers and privileges;and the lndebtedness of one is not the indebtedness of the other. Title to property condemned by a city or an easement Is in the name of the city,whereas rights-of-waypurchasedby a county for highwaypurposes are vested in the State of Texas.

"A Commissioners'Court of a countymay expend county road bond funds in the improvementof city streets forming a part of the county road system or a connecting link in a statehighway with the consent of the city and may purchase lands for rights-of-wayif the city consents and approves. Hughesv. County Commissioners'Court of Harris
~C?Z,"~~'~~eZ&~T~,X~ FvSt.$Lns County, 120 Tex. 318, 40 S W 2d 43 (1931); AG Opinion O-7465,dated November 8, 1946.

"Inasmuchas a countymay not condemn landwithin an Incorporated city,
a countymay not pay the condemnation award for a city on property obtainedby the city by condemnation for rlghts-ofway purposes. Such paymentwould be in violation of the Constitution. Tex. Const., Art. III, Sets. 51 and 52; Benat

V. Dallas County, 266 S.W. 540 (Texx. App. 1924 error ref.); Adams v. Rockwell County, 260 S.W. 759 (Tex.Comm. App. 1926)."

House Bill 77, Acts of the 54th Legislature, 1955, Chapter 423, page 1128, codified inVernon's as Article 6674-n, Vernon's Civil Statutes, authorized the county to condemn rights;of-way in the name of the State in an Incorporated city.

In Attorney&eneral's OpinionWW-240 (1957)it was held that a countyhas the authority to expend county road bond funds for thepayment to the city for the acquisition of rights-of-way for the countywithin the corporate limits of an.. .-

Honorable Joe Resweber, Page 3 (w-377)

incorporated citywhere theproperty in question forms integral parts of county roads or State Highwaysunder the facts submittedas follows:
"The Comhissioners Court of Bexar County on July 9, 1952, entered into
an agreementwith the Highway Department whereby the Commissioners'Court of Bexar County agreed to obtain certain rights-ofway for the constructionof a State Highway under theprovisions of Article 6674-n, Revised Civil Statutes of Texas, 1925, as amended. Prior to the acquisitionof the property in question and on September 25, 1952, the City qc;'8SanAntonio annexed the territorywherein the property is located. Thereafter, the County of Bexar and th,eCity of San AntonioapQ&,r.edcd@tti ,:an.!agreemgntL:,; whereby the City of San Antoniowould acquire such property and the Commissioners"Court of Bexar County agreed to compensate the City of San Antonio for its sei?vice,s up to the sum of $35,000.00,which had been set asideby the County for that purpose. The City of San Antonio acquired theproperty in question and has now filed a claimwith the Commissioners' Court for the sum of $33,500.00. The City of San Antonio acquired the propertyby condemnationproceedingsand had to pay in excess of the sum of $33,500.00for its acquisition."

Under the facts submitted in Attorney General's Opinion No.WW-240, the County agreed to reimburse the City for the City's expenses Incurred in the acquisition of certain property and agreed to pay the City not to exceed a sum certain.'Under the facts submitted In this request,however, the Countywill agree to pay the judgment entered In condemnation suits against the City. The Citywill condemn the rights-ofway, and the judgment entered In such suitswill be against the City, rather than the County. It is pointed out in Attorney General's OpinionV-971 that the Indebtednessof a city and
a judgmentagainst the city cannot legallybe paid by the county. Therefore,you are advised that the Countymay not enter into an agreementwith the Cityby which condemnation suits to acquire the necessary rights-of-wayare brought in the name of the City, and the amount of condemnationaward or judgmentbe paid by the County.

Assuming that the title to the right-of-wayhas been acquiredby the County In the name of the State, county road bond funds for the constructionof the road may be used. See Attorney General's OpinionV-971.Honorable Joe Resweber, Page 4 (WW-377)

SUMMARY

A judgment for the amount of the condemnationaward against
a city In condemnation suits brought in the name of the city cannotbe paid by a county, since such a judgmentwould constitute
an indebtedness of the city, and the county Is not liable for the indebtedness of the city. However, assuming that the title to the right-of-wayhas been acquiredby the county in the name of the State, county roadbond funds for the constructionof the road may be used.

Yours very truly,

WILL WILSON Attorney General of Texas

JR:jl:wam

APPROVED:

OPINION COMMITTEE

Geo. P. Blackburn, Chairman Cecil C. Rotsch J. Mark McLaughlin J. Milton Richardson John H. Minton, Jr.

REVIEWED FOR THE ATTORNEY GENERAL

BY: W. V. Geppert