### TEEATTORNEY GENERAL OF I‘EXAS

January 21, 1970

Honorable John Lawhon Opinion No. M-561 County andDistrict Attorney Denton County Courthouse Re: Obligation andauthority 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. Wequote from your request as follows:

"Oneof 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 makea charge for the culverts? "2. Thecity 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 sametime expecting the county commissioner to keep upthe city streets. Underthese circumstances, whohas authority give such permission to dig upthese streets? $0

In regard to roads within a particular county, the Commissioners Court acts pursuant to Section 

### 3of Article 2351, Vernon's Civil Statutes, or Articles 

### 6762, et seq, Vernon's Civil Statutes, or somelocal road statute applicable to a specific county. Wewere unable to find a specific road lawapplicable to Denton County and therefore this opinion is predicated on the proposition that none exists. -

Fromthe above Articles dealing with the general road authority of the County, It Is clear that where there are lncorporated cities within agiven county the streets within the city

I ,-2676-

iHonorable John Lawhon, page 2 (M-561)

are generally subject to city control. TheCommissioners Court, by virtue of Artlole 6703, Vernon’s Civil Statutes, Is specifically authorized to act In certa3n clroumstances. Article 6703 Is quoted a6follows:

“The commissioners court shall order the laying out and opening of public roads when necessary, anddiscontinue or alter anyroad whenever It shall be deemedexpedient. No public roads shall be altered or changed except to shorten the distance from endto end, unless the court upon a full lnvestlgatlon of the proposed change finds that the public interest will be better served bymakingthe change; andsaid change shall be byunanimous consent OSall the commissioners elected. No part OSa public road shall be discontinued until a newroad is first built connecting the parts not discontinued; andnoentire 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 andalleys in all .citles and incorporated towns In Texas which have nodefacto, municipal government In the active discharge of their official duties.” (Emphasis added.)
A de facto government would meanagovernment In fact operating with or without good Salthh but a government which for somereason Is not legal or “de jure

. Black’s LawDictionary, (Fourth Ed., 1951) page 479.

For purposes of this opinion wewill assume that the Clty’of Ponder has at least ade facto government, andtherefore the underlined language of Article 6703 Is not applicable.

Whenfaced with the question of whether acounty may pave or improve, etc. a street within anincorporated city, the courts hold that the county maydo such work only if the city consents to It, andprovided 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, nowrit) the court held the county maypave aroad within a city if the city does not object. At page 160 the court stated :

-2677-Honorable John Lawhon, page 3 (~-561)

'From the organization of this state the Commlssloners' courts of the different counties have been given control andjurisdiction over roads andhighways, andthis has been restricted by the law In respect to incorporated cities and towns, which Is still respected In those cases. In this case the towncouncil makes noobjection to the county taking this part of the highway under Its control. Whenmatters of this kind camebefore the court In a case reported In 18 Tex. 874, State v. Jones, the question of jurisdiction of the commissioners' court over roads andhighways is first reported. In deciding that case the SupremeCourt was content to adopt the opinion of the lower court, which says: 'The county court does, It Is true, possess ageneral jurisdiction, coextensive with the limits of the county, to lay out andestablish public roads andhighways, but, as that jurlsdiction Is conferred byageneral lawwhich 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 samesubject In particular counties, or special localities,' etc. 'It has been said In argument that, If the law Incorporating the towntakes awayfrom the county court the power to lay out andregulate roads within the town limits, the council do not choose to exercise the power conferred upon it,to lay out streets andhighways, then the people of the county will be subjected to the Inconvenience of having noroad for travel or the transportation of their commerce through the town tract,' etc. 'Such a consequence, In myjudgment, by nomeans follows. Until the town council acts under the authority conferred byits charter, the general authority of the county court over the subject matter continues to exist, andmaybe exercised. It Is only whenboth bodies attempt to act In opposition to andIn conflict with each other that the power andauthority of one must cease andyield to that of the other, and in such a state of things I amof the opinion that the authority of the county court mustyield to that of the town council.'

-2678-.

Honorable John Lawhon, page 4 (M-561)
Subsequent to the Smith v. Cathey case, supra, the Texas SupremeCourt in City of Breckenrldge v. Stephens County, 120Tex. 

### 318,.

40S.W.2d 43, (19311 concluded: (Pages 43-44) "After a careful Investigation OSthe authorities, Including the Constitution and laws of this State, wehave 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 Hughesv. County Comm.Court of Harris County, lTex.Clv.App. 1931, nowrit). 35S.W.2d 818 S.W.W 

### 262(Tex.Clv.App., $0 v. City of Marshall, 253S.W.2 ref

. n.r.e.1; Attorney General

Based upon ananalysis of the above statutes and cases, It is our opinion that the Commissioner In question mayact 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 mayexerclse the samejurisdiction over such city street as hedoes over any county road, anda county commissioner then has noauthority to charge for such work or material furnished, andby the sametoken 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, andIS necessary dig upthe city streets without permission from the county commissioner, Harrison County v. City of Marshall, supra. SUMMARY TheCounty 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.

-2679-.. -

Honorable John Lawhon, page 5(~-561)

V+' truly yoyrs, 3

Prepared byJamesC. McCoy Assistant Attorney General APPROVED: OPINIONCOMMITTEE Kerns Taylor, Chairman Alfred Walker, Co-Chairman Malcolm Quick TomBulllngton JoBetsy Lewallen Camm Lary MEADE F. GRIFFIN Staff Legal Assistant NOLA WHITE First Assistant

.

-2680-