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 Department have the 

authority to enter into and perform contracts with regard to their 

respective obligations concerning 

the construction, maintenance and 

operation of State Highways within 

cities, including controlled access 

highways, or whether all jurisdiction with regard to such highways 

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 

epartment has entered into agreements 

(contracts) with various incorporated cities under the provisions 

of Article 66734, V.C.S., in order to fix the respective liabilities and responsibilities of the City and the State with respect 

to the construction, 

within city limits. 

maintenance and operation of State Highways 

Within certain constitutional limitations, 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.,'the Legislature 

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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Honorable D, CO Greer, Page 2 (C-84) 

The Legfslature has given to the Texas Highway Commizsion 

jurisdiction to 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 State has 

absolute control over its highways and roads, the Legislature may 

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 establishment of public highways being primarily a 

function of government belonging to the State, the right 

to establish them residesprimarily in the Legislature, 

and in the absence of constitutional restrictions, the 

Legislature may 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 it may determine. The exercise of this 

right by a political subdivision of the State, or by 

local officers, is founded upon statutory authority 

therefor. The Legislature may exercise oossession of 

public roads and control over them, bv and through such 

agencies as it mav desipnate. 4: * *w (Emphasis added) 

The police power of the State is likewise exercised by the 

Legislature. This power covers the regulation of highways and 

it may be delegated by the Legislature to local authorities. The 

delegatees of the power to regulate the highways, however, have 

only such powers as have been expressly granted 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 Legislature has explicitly granted to the State Highway 

Commission and incorporated cities, towns and villages the authority and power to contract concerning the many aspects dealing with 

State Highways, pursuant to Article 6673-b, which provides as 

follows: 

"The State Hinhwav Come nfssion is herebv authorized and 

empowered. in its discre tion. to enter into contracts 

o,r agreements with the R -ed overnin 

cities. towns. and villa us whether incorporated under 

the home rule orovisions of the Constitution, Special 

Charter, or under the, General Laws, providinz for the 

locatfon. relocation. construction. reconstruction. 

maintenance, control. supervision, and regulation of 

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Honorable D. C. Greer, Page 3 (C-84) 

designated State highways within or through the coroorate 

limits of, such mcoroorated cities, towns. and villages, 

and determiniw and fixing the respective liabilities or 

resoonsibilities of the parties resultinn~therefrom: and 

such incoroorated cities; towns and,villanes are hereby 

authorized and emoowered. through the governins bodies 

of such cities. towns. and'villajzes to enter into such 

contracts or agreements with,the State HiPhwav Commission." 

‘(Emphasis added). 

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, determines and 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 investment of 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 

including Home Rule Charter Cities, to or from 

which agcess is denied or controlled, in whole or in part, 

from or to abutting land or intersecting streets, roads, 

highways, alleys or other public or private waysO'" 

Article 6674w-5, supra, provides; 

"The powers, authority, jurisdiction and procedures granted 

to the State Highway Department and 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 conferred by 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 orocedures now,existitiqunder the laws ,of .Texas, except that 

restrictions placed upon the powers, authority, jurisdiction 

or procedures of the State Highway Department and State 

Highway Commission by other laws, which are in derogation of, 

or inconsistent with the powers, authority, jurisdiction and 

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

procedures prescribed 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 granted by 

this Act for the proper accomplishment of its purposes, 

shall be deemed to have been superseded by the provisions 

hereof, and, to the extent that any other law is in conflict with or inconsistent with the provisions hereof, 

the provisions of this Act shall take precedence and be 

effective, 

"The powers granted to the State Highway Department and 

State Highway Commission by this Act to perform acts and 

exercise powers within the limits of counties, incorpo; 

rated cities, towns and villages, including Home Rule 

Cities, may be exercised without the consent or agreement of any such~county, city, town or village, including 

Home Rule Cities, after complying with Subsection 1 of 

Section 2 hereof, (public hearing) and whenever the State 

Highway Department or the State Aighway Commission performs 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.the dominion 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 exercises of 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." (Emphasis added 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 Department may 

enter into agreements with incorporated cities, pursuant to Articles 6673-b, 6674~ and 6674w-5, with regard to the respective 

obligations of the contracting parties 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 insofar as 

maintenance of State Highways is concerned and does not support a 

contention that the State, through its agencies, cannot delegate 

any~ of its responsibilities for maintenance, construction and 

operation of the State Highways within the corporate limits of 

cities. 

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Honorable D, C, Greer, Page 5 (c-84) 

790, 

By virtue of the quoted-portion of the contract, viz., 

"maintenance will be assumed by the State over the highway 

routes within said city in strict accordance with the Highway 

Commission policies as stated above , governing the maintenance 

of highways... " the court held: 

Reference is made to Hale v. Citv of Dallas, supra, at page 

where the following language is found: 

"Coming now to the point at issue, above enactments 

empower the State Highway Department without 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 (and Home Rule 

Cities authorized) to contract with regard to the. 

responsibilities of each in 'maintenance, control, 

supervision, and regulation;of designated State highways within or through the corporate limits of such 

incorporated cities * * *or,c Pursuant to such delegation of powers the 1951 contract executed between State 

and city, recited that 'maintenance will be assumed by 

the State over the highway routes within said city in 

strict accordance with the Highway Commission policies 

as stated above, governing the maintenance of highways 

into and through municipalities * * ep.* 'The State 

agrees * * * (2) on streets and highway routes with 

shoulders, to maintain the base and surface and the 

normal shoulders adjacent to the edges of the pavement * * *'; and that the city will do no work 'involving disturbances or replacement of existing street 

improvements, such as cutting pavement for purpose of 

installing * * * utility lines or for other purposes' 

without first securing permission of the Highway 

District Office," 

*'We conclude that the contract in question amounts 

to a reclamation of authority and control by the 

State over designated highways, with effect of 

relieving the city of certain pre-existing duties 

and placing them on the Highway Department; and there 

can be 'no actionable negligence in the absence of 

some duty which has been neglected or violated.'" 

The Court in the &&g case stated, "In 1939 the Legislature 

passed Article 6673-b, for the first time authorizing the state 

and city to contract with 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 responsibilities resulting 

therefromi" 

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Honorable D. C. Greer, Page 6 (c-84) 

SUMMARY 

The Highway Department may enter into contracts with the 

various cities with regard to theirrespective obligations concerning the construction, maintenance and operation of State 

Highways within cities, including controlled access highways 

which delegate those responsibilities to the contracting cities. 

The Highway Department is specifically authorized by statute 

to enter into contracts delegating 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 

Highways within 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. OS 1 orn 

Joseph Bracewell 

Corbin Snow 

Malcolm Quick 

'APPROVED FOR THE ATTORNEY GENERAL 

BY: Stanton Stone" 

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