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December 16, 1949 

Bon. Waggoner Cam opinion Ro. vcounty Attorney 

Lubbock County Re: Authority o? the-Cou 

Lubbock, Terea ty to use road bond 

proceeds to buy rlghtsor way within a city 

and to pay condemn&Ion 

avnrds against the city 

for rights-o? -way on 

streets formIng oonnecting links on State hlghDear Mr. cnrr: rsys . 

Your request for an opinion Is substentielly 

88 ?0110vs: 

On the 5th dey of November 1945, the 

Lubbock County Commissioners I Court entered ita order agreeing with the Texas Highway 

Department to furnish rights-of-veg for certeIn highways. During 1945 the city of Lubbook voted a city-wide bond eleotioa which 

Included money to be used for scouring the 

city’s pert of the right-of-way vlthln the 

corporate limits. The city has oontlnuously 

secured Its right-of-way within the corporate lImIta to the limit of Its own funds on 

head. In 1946 Lubbock County voted a countpride bond issue for highway purposes end 

thereafter scoured a large ptirtlon of the 

right-of-way requfred for highways deslgnated by the Highway. De artment. The County .~ 

haa approximately $1 B 1,465.18 remaining on 

hand in this bond fund. 

The City o? Lubbock has made and Is 

about to make additional extenaiona In Its 

corporate llmita BO aa to lnolude the lands 

from vhIoh rights-o?+ey are to be secured 

by the County and suoh needed lmnds will be 

shortly vlthln the oorporote llmlts. 

On June 13, 1949, the Commissioners’ 
mu. Waggoner Cnrr, pegs 2 (Q-971) 

Conrt passed Its reaolutlon authorizing the 

obtaining of the neoerssry rights-of-way, 8 

part of vhIoh vi11 be In the City of Lubbook 

after the annexation beoaaes effective. 

Question 1. May the road baud fund8 or 

Lubbock county be used for the purchase or 

rlgm-or-w3y of that pert 0s the hi way 1 

and treffla dispersal system Include P within 

.,: :.the.,oorporate limits of the City o? Lubbook? 

.- .,.,,.I i... ( .‘. i.: Question 2. In the event the City of 

.-,,:.:&ubbook, 18 requl+ed to file oondemnatlon 

.,. :.:iA~,,~~~dlngs on land irlthin the aorporate 

‘, ‘* ..limltr, my the oounty by re.aaon of Its oon- 

, t?aot vlth the State Hlghvsy Department in 

a’oopexwtion with the City of Lubbock use 

suoh funds to pay for the land eotuallg taken end demeges worded by the speolel oommissioners or awarded by judgment on eppesl 

to the county court? 

As 6 generel proposltion of low It Is settled 

that the control end jurisdiction ovep streets of 8 muulcIpellty nrs exclusive In thet city or town. However, 

the courts hove held that the oountg hes the right to 

expend funds in the Improvement of streets within the 

oorporete limits of a olty when sold streets forks 8 pert 

of the county road system, or 8 oonnectlng link In Stete 

In Attorney Geae~el Opinion Bo.O-7465, doted 

Hovember 8, 1946, it van raid: 

0 A aounty any not purohsse loud 

in an &o&orated olty for highrep purposes 

if such purohese ooufllots vlth the jurisdlotion’oi the aunlolprllty; however, It is our 

opinion Lt the oity approves, consents to, 

acquiesces or oooperates in the purchase, then 

the oounty may pmhsse the lend for suoh purpose. This vlev is not inaonslstent vlth the 

;i;Ing thet the county meg not oondemn such 

. The pover of condemnetlon, If present 
. 

Hon. Yaggoner Csrr, page 3 (V-971) 

4n the ooullty, TOUld be them reg~rbless 

o? oouaeut o~..,sp~rovsl of the olty. Swh 

power would oooillot with the-jurlrdlotion 

of the o%ty ‘over itr,stmets~ theroiore, 

nnder .eple authority there Is no such l uth- 

, ority. in the oounty. But thera IS power to 

parahrae with the approval or oonsent or the.. 

01ty.m 

:. ? .’ 

The above opinioa psrt:oularly emphsslsea the 

irat thSt the oounty has the Dower to Durahsse such loud 

only ?oi, oounty or &t&e hi ky purpoies. Also see: 

smith V. cath~t 226 3.u.15 P (TCU.C~V.A~P.W?O); State 

x.874 (18 7)r Benet v. Dallas Counm26 

~~~~~~v,A~~;l~~,~~~~~~~~iA~~*on v. lieelx 

-9 . . . . -TS!X!, . error 

re.. 

: . . 

‘~ It Ia therefore our opinion that your first 

question should be answered in the sffl~etlve. 

zo.,the ease or Adams v. Roulnrall county, 280 

B.W.759 (!Tex.Collpn.App.l%?b) It wss held that the County 

of Roakwall did not have thi power to ooudemn laud tar 

rood purposes within the corporate limits of the town of 

Royce. The Court mid: 

“There does not nppesr to be an crmblgulty 

in the language employed by the Legislsture to 

expmss its intent as to vhrt agencies should 

exeroise~ conttiox’ ovev the highksjs withln’inoorporsted cities and towns, OF as to the ext 

elusive nature o? that oontrol.” , 

fin the Beast v. Dal188 Co&r Case’, supra, the 

cola& steted: 

%xcept la cases ooming within the scow-’ 

of some general or speolal statute In vhich 

authority Is expressly ooniemwd, oountles 

are without authority to lease out or oontrol 

streets and hlghvays o? the incorporated cltLea end tome, or to have property condemned 

for such purposes.” 

While It has been the long estebllshed opinion 

OS this deportment that a oounty may purohnse, with the 

oousent or a olty, the right-of-wsy for 8 hlghvey through 

an Inoorporated cItyI nevertheless the olty snd county 
C 

c 

c 

c 

I 

Boa. Waggoner Cnrr, page 4 (V-971) 

l FO r ep a r ste rod distinot jurIsdIotions InSorOr es they 

relrte to hlghvry n 8tters, having reporate and dlstluot 

powers and prItllmges; aad the lwlebtedness or one IS 

not the indebtednear of the other. Title to property 

ooodemned by 8 olty or an ersement ts In the nsme OS the 

oity, whereor aQhts-of+rsy purohssed by 6 oounty for 

hlghwey prrrposes sze vested in the State o?~Texss. 

Artiole III, Section 51 o? the Constitution 

0s TOXOS IS in pert 88 r0ii0w8: 

.* 

“The Leglsl8tw ah811 hove no paver to 

arks any grant ox@ ruthorlse the meking of my 

grant o? pub110 monies to any IndIvidu8l, OSaooistlon oS~indIvIdu818, munIoIPe1 or other 

corporations rhetsoever. . . .n’ 

Artlole III, Section 52 of the Constitution OS 

Texes provides In pa&: 

“The L.egIslatum shall have no power to 

euthorlse any county, olty, town, or other 

political oorporatlon or subdIvIsIon of the 

St&e to lend its credit or to grent public 

money or thing of ,valw In aid of, or to any 

IudIvIdual essoaIatlon or oorporstlon whstsoever, ., . .” 

This oousiItutIon%l prohIbItIon. YOU npplied la 

the oesea of San Antonlo Inde ent School DIstrIot v. 

Boerd of Trwtees, 2m 2d 

ref. n.r.e.), ad City oi il 

0 I 1947 

251 (Tex.CIv.A~.l~ 

~:~&,",,~::'108 6%% 

, error ref.). 

In’ the ease of Galveston H.B .S.A.RY.CO. v. 

E;td; ~~?J;~~;~~~I~~U.~~ (Tex.CZv.App.1942, error 

"The CommissIonen~ Court o? a oounty 

has only swh pavers as 8re sxpressly or by 

neoessrry implloetlon given it by the Constltutloa and statutes of this State.” 

Also see: Avt.V, ~0.18, Tex.Const.; Hills 

county v. ~am~ssas county, 90,Tex.603, 40 s.w.~EIT~~?); 

ti.A .Nor&an nnd Bros. v. Ecissouri K.& T.R.Co., 50 Tex.420, 

. . tr(l- . 

Pnsslng to the qwstfon presented, It will be 
Hon. Waggoner Cam, pegs 5 (v-971) wa 

. 

. 

noted thet e oounty may not oondemn property lying vlthin the jurlsdlotion of the City of Lubbock, end being 

without authority to condemn, It neoesserily follows 

thet a county mey not peg the oondemnatlon srerds for 

the City of Lubbock. The title to swh property or the 

easement obtained vould be In the name of the Clty of 

Lubbock; end our State Constitution, es set out ebove 

end es interpzwted by the oases olted, prohibits the officers of the oounty from peylag over proceeds of a bond 

Issue to e munIoIpel corporation. In the ebsenoe of euthority pe$mIttIng the seme to be done, we are of the oplnIon that the County of Lubbook would not be authorized to 

pay the oondemnetlon sv8rds egalnst the City of Lubbock. 

A CommIssIonersl Court 0s s oounty may 

expend oounty road bond funds La the Improvement of city streets forming 8 pert 0s the 

county rood system or (I aonnectlng link In a 

stete highvey with the consent of the city 

end mop purchese lends for rights-of-vey for 

St&e highways within the city If the oity 

couaents~end~ epproves. Bwhes v. County CommIssioners~ Court of Harris County, 35 3 . W . 

d 618 (Tex.CIv.App.1931)’ City of BreokenCounty ‘120 T 318 40 s. 

G.Opinfon O-7%6, d&ed 

Inasmuch as e county may not condemn lend 

vlthtn en Lucorporeted city, a oounty mey not 

pay the oondemnatlou award for 8 city on property obtained by the olty by oondemnetlon for 

rights-of -way purposes. Such payment would be 

In violetion of the Constitution. Tex.Const., 

Art.111, Secs.51 end 52; Benet v. Dellaa Coun- 

~~~~.sl;~~~~l~T~~~~:;l~~~l~~:~~~~e~cfo~~. 

APP -1926) - 

Yours very truly,