Honorable Joe Resweber Opinion No. 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 payment by the 

county of awards and judgments in condemnation suits 

instituted by the city for 

the acquisition of 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 connect with another county road running 

through the city: 

"1. May the County enter Into 

an agreement with the City by which condemnation suits to acquire the necessary 

right-of-way are 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 construction of the road?" 

In Attorney General's Opinion V-971 (1949) It was 

stated: 

"While It has been the long 

established oplnhon of this department 
Honorable Joe Resweber, Page 2 (w-377 1 

that a county may purchase, with 

the consent of a city, the right-ofway for a highway through an incorporated city, nevertheless the city and 

county are separate and distinct jurisdictions insofar as they relate to highway matters, having separate and 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-way purchased by a county for highway purposes 

are vested in the State of Texas. 

"A Commissioners' Court of 

a county may expend county road bond 

funds in the improvement of city streets 

forming a part of the county road system 

or a connecting link in a state highway 

with the consent of the city and may 

purchase lands for rights-of-way if the 

city consents and approves. Hughes v. 

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. 

"Inasmuch as a county may not 

condemn land within an Incorporated city, 

a county may not pay the condemnation 

award for a city on property obtained by 

the city by condemnation for rlghts-ofway purposes. Such payment would 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 in Vernon'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 Opinion WW-240 (1957) it was 

held that a county has the authority to expend county road 

bond funds for the payment to the city for the acquisition of 

rights-of-way for the county within the corporate limits of an 
. . .- 

Honorable Joe Resweber, Page 3 (w-377) 

incorporated city where the property in question forms integral parts of county roads or State Highways under the facts 

submitted as follows: 

"The Comhissioners Court of 

Bexar County on July 9, 1952, entered into 

an agreement with the Highway Department 

whereby the Commissioners' Court of Bexar 

County agreed to obtain certain rights-ofway for the construction of a State Highway 

under the provisions of Article 6674-n, 

Revised Civil Statutes of Texas, 1925, as 

amended. Prior to the acquisition of the 

property in question and on September 25, 

1952, the City qc;'8San Antonio annexed the 

territory wherein the property is located. 

Thereafter, the County of Bexar and th,e City 

of San Antonio apQ&,r.edcd@tti ,:an.!agreemgntL:,; 

whereby the City of San Antonio would 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 aside by the 

County for that purpose. The City of San 

Antonio acquired the property in question and 

has now filed a claim with the Commissioners' 

Court for the sum of $33,500.00. The City 

of San Antonio acquired the property by condemnation proceedings and had to pay in excess 

of the sum of $33,500.00 for 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 

County will agree to pay the judgment entered In condemnation 

suits against the City. The City will condemn the rights-ofway, and the judgment entered In such suits will be against 

the City, rather than the County. It is pointed out in Attorney 

General's Opinion V-971 that the Indebtedness of a city and 

a judgment against the city cannot legally be paid by the county. 

Therefore, you are advised that the County may not enter into 

an agreement with the City by which condemnation suits to acquire the necessary rights-of-way are brought in the name of 

the City, and the amount of condemnation award or judgment be 

paid by the County. 

Assuming that the title to the right-of-way has been 

acquired by the County In the name of the State, county road 

bond funds for the construction of the road may be used. See 

Attorney General's Opinion V-971. 
Honorable Joe Resweber, Page 4 (WW-377) 

SUMMARY 

A judgment for the amount of 

the condemnation award against 

a city In condemnation suits 

brought in the name of the city 

cannot be paid by a county, since 

such a judgment would 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-way has been acquired by the county in the name 

of the State, county road bond 

funds for the construction of 

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