Honorable D. C. Greer

State Highway Engineer Texas Highway Department Austin 14, Texas Opinion No. 

## c-84

Re: Whether the various cities and the Texas Highway Departmenthave the authority to enter into and perform contractswith regard to their respective obligations concerning the construction,maintenance and operation of State Highways within cities, including controlledaccess highways, or whether all jurisdiction with regard to suchhighways lies with the Highway Commission and is nondelegable.

Dear Mr. Greer:

In a recent opinion re uest for a number of years your ;f of this office,you state that epartmenthas entered into agreements (contracts)with various incorporated citiesunder the provisions of Article 66734, V.C.S., in order to fix the respective liabilities and responsibilitiesof the City and the State with respect to the construction, within city limits. maintenance and operation of State Highways

Within certain constitutionallimitations, the Legislature has exclusive control over the public roads and highways of the State. State v. Hale, 136 Tex. 29, 146 S.W.2d 731 (1941).

In 1917 by enactment of Article 6663, V.C.S.,'theLegislature provided for a uniform system of State Highways, vesting control thereof in the State Highway Commission.
Article 6673# V.C.S., provides that:

"The Commission is authorized to take over and maintain the various State Highways in Texas, * * *I'

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The Legfslaturehas given to the Texas Highway Commizsion jurisdictionto take over and maintain the various State Highways in Texas,without limitation.

The highways of the State belong to the State, and the State has full control and authority over them, While the Statehas absolute control over its highways and roads, the Legislaturemay delegate to local authorities a part or all of that control. West V. Citv of Waco,,116 Tex, 472, 294 S.W. 832 (1927);Robbins
v. Limestone County, 114 Tex. 345, 268 S.W. 915 (1925),

In this,connection, in the case of Robbins v. Limestone County, supra, our Supreme Court said;

"The establishmentof public highwaysbeing primarily a function of governmentbelonging to the State, the right to establish them residesprimarily in the Legislature, and in the absence of constitutionalrestrictions,the Legislaturemay exercise that right direct or delegate it to a political subdivision of the State, or to such other agency or instrumentality,general or local in its scope, as itmay determine. The exercise of this right by a political subdivisionof the State, or by local officers, is founded upon statutory authority therefor. The Legislaturemay exercise oossessionof public roads and control over them, bv and through such agencies as itmav desipnate. 4:* *w (Emphasis added)

The police power of the State is likewise exercisedby the Legislature. This power covers the regulation of highways and it may be delegatedby the Legislature to local authorities.The delegatees of the power to regulate the highways, however, have only such powers as have been expresslygranted to them, Box v. Newsom, 43 S.W.2d 981 (Tex. Civ. App. 1931, error ref, n.rr New Way Lumber Co. ve Smith, 128 Tax. 173, 96 S.W,2d 282 (19363.

The Legislaturehas explicitlygranted to the State Highway Commission and incorporated cities, towns and villages the authority and power to contract concerningthe many aspects dealing with State Highways, pursuant to Article 6673-b, which provides as follows:

"The State Hinhwav Come nfssionis herebv authorized and empowered. in its discretion. to enter into contracts o,r agreementswith the R-ed overnin cities. towns. and villa us whether incorporatedunder the home rule orovisions of the Constitution,Special Charter, or under the,GeneralLaws, providinz for the locatfon. relocation. construction.reconstruction. maintenance, control. supervision,and regulation of

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designated State highways within or through the coroorate limits of,such mcoroorated cities, towns. and villages, and determiniw and fixing the respective liabilities or resoonsibilitiesof the parties resultinn~therefrom:and such incoroorated cities; towns and,villanes are hereby authorized and emoowered. through the governinsbodies of such cities. towns. and'villajzes to enter into such contracts or agreementswith,the State HiPhwav Commission." ‘(Emphasisadded).
Therefore, as was reasoned in Robbins v. Limestone County, supra, the provisions of Article 6673-h do not contravene the Constitution of Texas.
This same proposition appeared subsequently in Articles 6674w and 6674w-5, V.C.S.
Article 6674~ provides:
"Purposes. The Legislature finds, determinesand declares that the purpose of this Act is to delegate certain additional authority to the State Highway Commission to promote the Public'Safety,to facilitate the movement of traffic, to preserve the financial investmentof the public in its highways and to promote the National Defense.
'Definitions. Wherever used in this Act, 'Controlled Access Highway'means any designated State Highway within or without the limits of any incorporated city, town ;;a;;iage, whether under the General Laws or by special

includingHome Rule Charter Cities, to or from which agcess is denied or controlled, in whole or in part, from or to abutting land or intersectingstreets, roads, highways, alleys or other public or private waysO'"
Article 6674w-5, supra,provides;

"The powers,authority, jurisdictionand procedures granted to the State Highway Departmentand State Highway Commission in the foregoing Sections of this Act shall be deemed to provide additional powers. authority. jurisdiction.and procedures to those now existing, and conferredby the laws of the State of Texas upon the State Highway Department and State Highway Commission and shall not be reparded as in derogation of anv powers. authoritv. jurisdiction.or oroceduresnow,existitiqunderthe laws ,of.Texas,except that restrictionsplaced upon the powers, authority, jurisdiction
or procedures of the State Highway Department and State Highway Commissionby other laws, which are in derogation of,
or inconsistentwith the powers, authority, jurisdictionand

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Honorable D. C. Greer, Page 4 (C-84)

proceduresprescribed in the foregoing Sections of this Act or which would tend to hamper or limit the State Highway Department and State Highway Commission in the lawful execution of the powers and authority grantedby this Act for the proper accomplishmentof its purposes, shallbe deemed to have been supersededby the provisions hereof, and, to the extent that any other law is in conflict with or inconsistentwith the provisionshereof, the provisions of this Act shall take precedence and be effective,

"The powers granted to the State Highway Departmentand State Highway Commissionby this Act to perform acts and exercisepowerswithin the limits of counties, incorpo; rated cities, towns and villages, includingHome Rule Cities,may be exercisedwithout the consent or agreement of any such~county, city, town or village, including Home Rule Cities, after complyingwith Subsection 1 of Section 2 hereof, (publichearing) and whenever the State Highway Department or the StateAighway Commissionperforms any act or exercises any power within the limits of any county, incorporated city, town or village, including Home Rule Cities, as authorized in this Act, such act or exercise of power shall qualify and render inexclusive.thedominion of such counties, cities, towns or villages, including Home Rule Cities,with respect to the specific streets, alleys, and other public ways affected by such act or exercisesof power, but only to the specific extent to which such act or the exercise of such power affects such streets,alle s and other public ways and their use." (Emphasisadded 7
Suffice it to say Article 6673-b, supra, is not in derogation of Articles 6674~ and 6674w-5, and it is a necessary conclusion that all must be construed together. Therefore,upon authorization of the State Highway Commission,the Texas Highway Departmentmay enter into agreementswith incorporated cities,pursuant to Articles 6673-b, 6674~ and 6674w-5, with regard to the respective obligations of the contractingparties regarding the construction, maintenance and operation of State Highways, including controlled
access highways within the contracting cities.

The case of Hale v. Citv of Dallas, 335 S.W.2d 785 (Tex.Civ, App. 1960, error ref., n.r.e.) sustains this conclusion insofaras maintenance of State Highways is concerned and does not supporta contention that the State, through its agencies, cannot delegate any~of its responsibilitiesfor maintenance, constructionand operation of the State Highwayswithin the corporate limits of cities.

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790,

By virtue of the quoted-portionof the contract,viz., "maintenancewill be assumed by the State over the highway routes within said city in strict accordancewith the Highway Commissionpolicies as stated above, governing the maintenance of highways..." the courtheld: Reference ismade to Hale v. Citv of Dallas, supra, at page where the following language is found: "Comingnow to the point at issue, above enactments empower the State Highway Departmentwithout consent of a Home Rule!City to exercise full authority, relative to control of State Highways, the Commission likewise under Art. 6673-b being empowered (andHome Rule Cities authorized) to contractwith regard to the. responsibilitiesof each in 'maintenance,control, supervision,and regulation;ofdesignated Statehighways within or through the corporatelimits of such incorporated cities * * *or,cPursuant to such delegation of powers the 1951 contractexecutedbetween State and city, recited that 'maintenancewill be assumed by the State over the highway routes within said city in strict accordancewith the Highway Commissionpolicies
as stated above, governing the maintenance of highways into and throughmunicipalities * * ep.* 'The State agrees * * * (2) on streets and highway routes with shoulders, to maintain the base and surfaceand the normal shouldersadjacent to the edges of the pavement * * *'; and that the city will do no work 'involving disturbances or replacement of existing street improvements, such as cuttingpavement for purpose of installing * * * utility lines or for other purposes' without first securing permissionof the Highway District Office,"

*'Weconclude that the contract in question amounts to a reclamation of authority and controlby the State over designatedhighways,with effect of relieving the city of certainpre-existingduties and placing them on the Highway Department; and there
can be 'no actionablenegligence in the absence of
some duty which has been neglected or violated.'"

The Court in the &&g case stated, "In 1939 the Legislature passedArticle 6673-b, for the first time authorizing the state and city to contractwith one another, fixing the control and responsibilities of each,viz: OOe"O The court then quoted the ,;;;';sions

of Article 6673-b. and emphasized the following phrase

. . ng the resoective liabilities or responsibilitiesresulting therefromi"

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SUMMARY

The Highway Departmentmay enter into contractswith the various cities with regard to theirrespective obligations concerning the construction,maintenance and operation of State Highwayswithin cities, including controlledaccesshighways which delegate those responsibilitiesto the contracting cities.

The Highway Department is specificallyauthorizedby statute to enter into contractsdelegating jurisdiction "to the governing bodies of incorporated cities, towns, and villages * * * providing for the-location,relocation, construction,reconstruction,maintenance, control, supervision and regulation of designated State Highwayswithin orthrough the corporate limits" of such cities, towns and villages, and such cities are likewise authorized to enter into such contracts.

Yours very truly,

WAGGONER CARR Attorney General of Texas

DAVID 

### s M ANGUS Assistait &torney General

DSM:dd

APPROVED: OPINION COMMITTEE

W. V. Gap ert, Chairman Wm. E. 1

OS orn Joseph Bracewell Corbin Snow Malcolm Quick

'APPROVEDFOR THE ATTORNEY GENERAL BY: Stanton Stone"

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