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### THEAYTOWNEYGENERAL OFTEXAS "

Dsc’smber 10, 1948 l&n. Weldon B. Dsvls Opinion NO.

### v-730 County Attorney Austin County Re: Thaauthority of the Dellvills i Texas Commiraiaaere~ Court of Austin County to .2ssumecontrol over streets and alleys in anunincorporated town.
., Dear Sir: Your opinion request presents the following question:

“Does Austin Cokity, ,throiigh its governmental agonof, to-wit, the,Commissioners’ Court of Austin County, have,the right to assume control over the roads, streets and alleys in an unincorporated townand to open, veoate, maintain, etc., the streets, alleys end roads in such unincorporated town?” Article 

### 2351,V. C. S. is in part as follows: Vsch Commissionera’ Court shall:. . .
“3. Lay out andestablish, change and discontinue public roads andhighways. . . 

### "6. Xxercise general control over all roads, highways, ferries andbridges in their county.n Article 

### 6703,V. C. S. provides:

J “The commlssionars court shall order the

laying out and opening of public roads when necessary, anddiscontinue or alter any road whenever it shall be deemedexpedient. No public roads shall be altered or changed except to shorten the distance from end to end, unless the court upon a full investigation. -

Hon. WeldonB, Davis, Page 2 

### (V-730) of the proposed change finds that the public interest will be better,.served bymaking the change; end said change shall be by unanimous consent of all the commissioners elect

### ed. Nopart of a public road shall be discontinued until e newroad is first built connecting the parts not discontinued; and noentire first or second olass road shall be discontinued except upon vacation or nonuse for a period of three years, Said court shall assume andhave control of the streets andalleys in all oities end incorporated towns in Texas whioh have no de facto municipal government in the active discharge of their official duties.” S.W. In the case of Blair v. Archer Counte, 192 2d 

### 573,the Court stated as follows:

R

. . . v(l)’ This suit is one brought solely for the purpose of preventing the defendant from obstructing the dedicated streets involved andfrom interfering with the use thereof by the public. *It was the duty of the plaintiff, acting through its CountyAttorney, to bring such a suit, "e . . . “If the town of Dundeewere incorporated, it would have been its duty, through its proper officers, to bring suit to.prevent the obstruction of its streets andalleys, by a suit for injunction, . R

. . .
“Since the townis not incorporated, it seems to us that the next municipel corporation, having an interest in keeping open these streets and alleys within its borders --namely, the County of Archer--was the proper party. to bring the injunction suit.”c
Hon..,Wrldon B. Davis, Page 3 (V-730) Theabove case wea reversed in Blair v. Archer County (Sup. Ct.) 195 S. W. (26) 348, solely onjurisdictional grounda, but the opinion did not otherwise disturb the opinion of the Court of Civil Appeals. Byvirtue of the foregoing authorities, It is the opinion of this office that all roads, streets, andalleys which are a part of the County RoadSystem lying within en unincorporated townmaybe controlled andmaintained by the Commissioners* Court of Austin county. Therefore, your question should be answered in the affirmative.

Austin County, throua its Commissioners1 Court, has authority to aasum oontrol of and maintain roads, streets, and alleys of an unincorporated town which are e part of the County RoadSystem. Le. Ydurs very truly, ATTOEEIEY

GENERAL

OFTEXAS

BW:m:bh Burnell Waldrep Assiatant APPROVED: