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 on the right 

of way of state and county 

roads. 

Dear Mr. Resweber: 

You have inquired about the authority of a county to regulate the 

placement of portable signs on the right of way of state and county roads 

in both incorporated and unincorporated areas. 

Article 2351, V. T. C. S., confers upon the commissioners court 

of a 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 of this State . . . the exclusive 

control and power over the streets . . . of the . . . town, and to abate 

and remove encroachments or obstructions thereon. . . . ” (Emphasis 

added). Section 16 of article 1175, V. T. C. S., declares that home rule 

cities have “exclusive dominion, control and jurisdiction in, over and 

under the public streets, avenues. . . .‘I (Emphasis added). Section 

24 of that same statute grants to a home 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 of way of county roads in all unincorporated areas. This conclusion is implicit in those decisions and 

opinions cited, infra, which discuss the authority of a county over roads 

located in incorporated areas. It also follows from article 6703, V. T. C. S., 

p. 2458 
The Honorable Joe Resweber page 2 (H- 547) 

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 the jurisdiction of the municipality, or with 

its consent or approval, The Court, quoting the early case of State v, Jones, 

18 Tex. 874 (1857), explained that the phrase “without conflicting with the 

jurisdiction of the municipality” referred to a situation in which a city 

has totally failed to exercise its power to lay out and 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. ” If the street forms a connecting link in the 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 

In incorporated areas, then, the county may regulate the placement 

of signs on county roads’ rights of way only with the consent of the particular 

incorporated area. Consent may be express or implied, and the test for 

implied consent is whether the incorporated area has itself acted to regulate 

such signs. Whether either type of consent exists in a particular instance 

requires a factual determination. It is 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, no writ). 

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 of the State Highway Department. See 

- 

V. T. C. S., art. 6701d-11, 4 5 11 and 13. 

p. 2459 
I 

The Honorable Joe Resweber page 3 (H- 547) 

SUMMARY 

A county may regulate the placement of 

portable signs on the right of way of state and 

county roads in unincorporated areas of the 

county; it may regulate the placement of such 

signs in the incorporated areas of the county 

only with the consent, express or implied, of 

the particular incorporated area. 

A county may place portable sigrs on the 

right of way of state roads if this is not in 

conflict with the policy of the State Highway 

Department. 

Very truly yours, 

APPROVED: 

Attorney General of Texas 

DAVID M. KENDALL, First Assistant 

C. ROBERT HEATH, Chairman 

Opinion Committee 

p. 2460