The Honorable Joe Resweber

County Attorney Opinion No. H- 547 Harris County Courthouse Houston, Texas 77002 Re: Whether a county may **regulate** the placement of portable signs onthe right ofway of state and county roads. Dear Mr. Resweber:

You have inquired about the authority ofa county to regulate the placement ofportable signs on the right ofway ofstate and county roads in both incorporated and unincorporated areas.

Article 2351, V. T. C.S., confers uponthe commissioners court ofa county general authority over that county’s roads. But other statutes limit this power. Article 1016, V. T. C. S., grants to “[a]ny city or town incorporated under the general laws ofthis State
. . . the exclusive control and power over the streets . . . ofthe
. . . town, and toabate and remove encroachments or obstructions thereon.
. . .” (Emphasis added). Section 16ofarticle 1175, V. T. C.S., declares that home rule cities have “exclusive dominion, control andjurisdiction in, over and under the public streets, avenues. . . .‘I (Emphasis added). Section 24 ofthat same statute grants toahome rule city the authority “[t]o license, **regulate,** control or prohibit the erection of signs or bill boards as may be provided by charter or ordinance.”

We believe it is clear that the commissioners court may regulate the placement of signs on the right ofway of county roads in all unincorporated areas. This conclusion is implicit in those decisions and opinions cited, infra, which discuss the authority ofa county over roads located in incorporated areas. Italso follows from article 6703, V. T. C.S.,

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which authorizes the commissioners court to control streets and alleys in cities and towns which have no “de facto” municipal governments.

But such blanket authority to regulate must necessarily be limited to unincorporated areas, In City of Breckenridge v. Stephens County, 40 S.W. 2d 43 (Tex. Sup. 1931), the Supreme Court held that the county commissioners court may improve city streets where such streets form integral parts of county roads or state highways and where such improvements are made without conflicting with thejurisdiction ofthe municipality, or with its consent or approval, The Court, quoting the early case of State v, Jones, 18Tex. 874 (1857), explained that the phrase “without conflicting with the jurisdiction ofthe municipality” referred toa situation inwhich a city has totally failed to exercise its power to lay outand regulate roads. Where the city has acted, the county must yield.

A previous Attorney General Opinion, M-561 (1970), reached the same basic result in slightly different **terms.** “Where there are incorporated areas within a given county, the streets within the city are generally subject to city control. ” Ifthe street forms a connecting link inthe county road or state highway system, however, the county commissioners court may maintain it, provided the city has expressly or impliedly consented to such work. We interpret this “implied consent” to be functionally equivalent to the “no conflicting jurisdiction” test approved in Breckenridge, sz

Inincorporated areas, then, the county may regulate the placement of signs on county roads’ rights ofway only with the consent ofthe particular incorporated area. Consent may be express or implied, and the test for implied consent is whether theincorporated area has itself acted to regulate such signs. Whether either type of consent exists in a particular instance requires afactual determination. Itis sufficient here to say that consent is a prerequisite to county regulation.

The State has authority to control the State highways. V. T. C.S., art. 6663, et seq. ;Nairn v. Bean, 48 S.W. 2d 584 (Tex. Sup. 1932); Britton v. Smith, 82 S.W. 2d 1065 (Tex. Civ. App. --Waco 1935, nowrit). The county may perform certain functions in regard to control of State highways including the placement of signs, to the extent that their activities are not in conflict with the policy ofthe State Highway Department. See - V. T. C.S., art. 6701d-11, 4511and 13.
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SUMMARY A county may regulate the placement of portable signs onthe right ofway ofstate and county roads in unincorporated areas ofthe county; it **may** regulate the placement of such signs in the incorporated areas ofthe county only with the consent, express or implied, of the particular incorporated area. A county may place portable sigrsonthe right ofway of state roads if this is not in conflict with the policy ofthe State Highway Department. Very truly yours,

APPROVED: Attorney General of Texas

DAVID M. KENDALL, First Assistant

C. ROBERT HEATH, Chairman Opinion Committee

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