TEEATTORNEY GENERAL 

OF I‘EXAS 

January 21, 1970 

Honorable John Lawhon Opinion No. M-561 

County and District Attorney 

Denton County Courthouse Re: Obligation and authority 

Denton, Texas of County Commissioner 

for city streets within 

Dear Mr. Lawhon: Incorporated city In county. 

Recently you have requested an opinion from this office. 

We quote from your request as follows: 

"One of our county commissioners has requested 

that the following questions be submitted to you for 

your opinion. 

"la. Does a county commissioner have the 

obligation to furnish culverts for use on the city 

streets of Ponder, an Incorporated city in his precinct which does not levy city taxes? b. Should 

the Commissioner make a charge for the culverts? 

"2. The city council of the city of Ponder, 

Texas has been authorizing contractors to dig up 

city streets to lay water lines for the community 

water system, while at the same time expecting the 

county commissioner to keep up the city streets. 

Under these circumstances, who has authority 

give such permission to dig up these streets? 

$0 

In regard to roads within a particular county, the Commissioners Court acts pursuant to Section 3 of Article 2351, Vernon's Civil Statutes, or Articles 6762, et seq, Vernon's Civil 

Statutes, or some local road statute applicable to a specific 

county. We were unable to find a specific road law applicable to 

Denton County and therefore this opinion is predicated on the 

proposition that none exists. 

- 

From the above Articles dealing with the general road 

authority of the County, It Is clear that where there are lncorporated cities within a given county the streets within the city 

I ,-2676- 

i 
Honorable John Lawhon, page 2 (M-561) 

are generally subject to city control. The Commissioners Court, 

by virtue of Artlole 6703, Vernon’s Civil Statutes, Is specifically 

authorized to act In certa3n clroumstances. Article 6703 Is 

quoted a6 follows: 

“The commissioners court shall order the 

laying out and opening of public roads when 

necessary, and discontinue or alter any road 

whenever It shall be deemed expedient. No 

public roads shall be altered or changed except to shorten the distance from end to end, 

unless the court upon a full lnvestlgatlon of 

the proposed change finds that the public interest will be better served by making the 

change; and said change shall be by unanimous 

consent OS all the commissioners elected. No 

part OS a public road shall be discontinued 

until a new road is first built connecting the 

parts not discontinued; and no entire first or 

second class road shall be discontinued except 

upon vacation or non-use for a period of three 

ykars. Said court shall assume-and have control 

of the streets and alleys in all .citles and incorporated towns In Texas which have no defacto, 

municipal government In the active discharge of 

their official duties.” (Emphasis added.) 

A de facto government would mean a government In fact 

operating with or without good Salthh but a government which for 

some reason Is not legal or “de jure . Black’s Law Dictionary, 

(Fourth Ed., 1951) page 479. 

For purposes of this opinion we will assume that the 

Clty’of Ponder has at least a de facto government, and therefore 

the underlined language of Article 6703 Is not applicable. 

When faced with the question of whether a county may 

pave or improve, etc. a street within an incorporated city, the 

courts hold that the county may do such work only if the city 

consents to It, and provided the street Involved forms a connecting link In the county road or state highway system. 

In the case of Smith v. Cathey, 226 S.W. 158 (Tex.Civ. 

App, 1920, no writ) the court held the county may pave a road 

within a city if the city does not object. At page 160 the court 

stated : 

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Honorable John Lawhon, page 3 (~-561) 

'From the organization of this state the 

Commlssloners' courts of the different counties 

have been given control and jurisdiction over 

roads and highways, and this has been restricted 

by the law In respect to incorporated cities and 

towns, which Is still respected In those cases. 

In this case the town council makes no objection 

to the county taking this part of the highway 

under Its control. When matters of this kind 

came before the court In a case reported In 18 

Tex. 874, State v. Jones, the question of jurisdiction of the commissioners' court over roads 

and highways is first reported. In deciding 

that case the Supreme Court was content to adopt 

the opinion of the lower court, which says: 

'The county court does, It Is true, possess 

a general jurisdiction, coextensive with the 

limits of the county, to lay out and establish 

public roads and highways, but, as that jurlsdiction Is conferred by a general law which is 

applicable to every county In the state, It Is 

at all times subject to be changed or modified 

by special laws, acting upon the same subject 

In particular counties, or special localities,' 

etc. 'It has been said In argument that, If the 

law Incorporating the town takes away from the 

county court the power to lay out and regulate 

roads within the town limits, the council do not 

choose to exercise the power conferred upon it,to 

lay out streets and highways, then the people of 

the county will be subjected to the Inconvenience 

of having no road for travel or the transportation 

of their commerce through the town tract,' etc. 

'Such a consequence, In my judgment, by no means 

follows. Until the town council acts under the 

authority conferred by its charter, the general 

authority of the county court over the subject 

matter continues to exist, and may be exercised. 

It Is only when both bodies attempt to act In 

opposition to and In conflict with each other 

that the power and authority of one must cease 

and yield to that of the other, and in such a 

state of things I am of the opinion that the 

authority of the county court must yield to that 

of the town council.' 

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. 

Honorable John Lawhon, page 4 (M-561) 

Subsequent to the Smith v. Cathey case, supra, the 

Texas Supreme Court in City of Breckenrldge v. Stephens County, 

120 Tex. 318,. 40 S.W.2d 43, (19311 concluded: (Pages 43-44) 

"After a careful Investigation OS the 

authorities, Including the Constitution and laws 

of this State, we have reached the conclusion that 

the Commissioners' Court does have lawful authority 

to emend county road bond funds for the 1mDrovement 

jurisdiction of the munl$ipallty, or with Its consent or approval. . . . (Emphasis added.) 

In addition to the above cases you are referred to 

Hughes v. County Comm. Court of Harris County, 

lTex.Clv.App. 1931, no writ). 

35 S.W.2d 818 

S.W.W 262 (Tex.Clv.App., $0 

v. City of Marshall, 253 S.W.2 

ref . n.r.e.1; Attorney General 

Based upon an analysis of the above statutes and cases, 

It is our opinion that the Commissioner In question may act In 

improving a city street of Ponder with consent (express or Implied) 

of the city council, provided such street Is a link in the county 

or state road system, City of Breckenrldge v. Stephens County, 

supra. If such consent Is given, then the Commissioner may exerclse the same jurisdiction over such city street as he does 

over any county road, and a county commissioner then has no authority to charge for such work or material furnished, and by 

the same token would have the discretion whether or not to perform such work. 

In regard to your second question, it Is our opinion 

that the city would clearly be authorized to permit a contractor 

to Install the city's water system , and IS necessary dig up the 

city streets without permission from the county commissioner, 

Harrison County v. City of Marshall, supra. 

SUMMARY 

The County Commissioners have the discretionary 

authority to maintain a street, which Is sn Integral 

part of a county or state road system, within an lncorporated city, provided the city ha& expressly or 

lmplledly consented to such work. 

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. . - 

Honorable John Lawhon, page 5(~-561) 

V+' truly yoyrs, 3 

Prepared by James C. McCoy 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Kerns Taylor, Chairman 

Alfred Walker, Co-Chairman 

Malcolm Quick 

Tom Bulllngton 

Jo Betsy Lewallen 

Camm Lary 

MEADE F. GRIFFIN 

Staff Legal Assistant 

NOLA WHITE 

First Assistant 

. 

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