Hon. Pat Beene 

County Attorney 

Andrews, Texas 

Dear Sir: Opinion NO. 0-6146 

Re: Whether the Commissioners 

Court of Andrews County 

has the legal authority 

to spend county funds on 

street Improvements of an 

lncorpoarated town under 

the facts stated. 

Your letter of recent date requesting the opinion 

of this department on the questions stated thereln, is, in 

part, as follows : 

f, . . .I present'a question, which has reference to the right of the CouxnLsaioners' Court to 

spend money on the streets of an Incorporated town, 

such expenditures to be in the form of paving several blocks of a street which Is not an integral 

part of a road system or highway system, and without the help of, but with the approval of the city 

counsel, and such city has a populatlon of 800 to 

1200, it has grown some lately, and it is lmposslble to make an accurate estFmate. 

"They also desire to pave all of the streets 

around the Courthouse (more than their one-half of 

such street). 

"I am of the opinion that they are without 

authority to spend county funds for, such Fmprovements. I quote 40 S. W. (26) page 43, City of 

Breckenridge V. Stephens. They Bo not say so in 

so many words, but leave the lmpresslon that unless 

such street forms part of the road system of the 

county then they are without authority. The case 

of Gabbert vs. City of Brownwoood found in 176 S.W. 

(26) P. 347, also says as much. 

It Is stated in our opinion No. O-1190: 
Hon. Pat Beene, page 2 o-6146 

"As a general proposltion of law, it is 

settled that the control and jurisdiction over 

streets of a municipal corporation is exClusive 

' in said corporation. However, the courts have 

construed to the counties the right to expend 

funds in the improvement of streets within the 

corporate limits of the city when said strsets 

were also a public road, particularly when done 

with the consent of the city. See Hughes vs. 

County Commissioners Court of Harris County, 35 

s. w. (2d) 818. This same conclusion was reached 

by the Supreme Court in the case of the City of 

Breckenridge vs. Stephens County, 40 S. W. (26) 

43, wherein the court said: 

'The Commissioners Court may expend County 

road bond funds for improvement of city streets 

forming part of county roads where made with 

city's consent.' 

"The general underlying theory being that 

such improvement must be confined to streets 

forming part of a county road system and also 

that the county must have the consent of a 

municipal corporation within which said streets 

may be located. The Supreme Court in the 

Breckenrldge case, above cited, distinguished 

between streets forming a part of a county road 

system and streets generally within the city. 

In that case the Court held that the Commissioners Court could bind itself to expend county 

road bond funds to aid the City of Breckenridge 

in improving 'streets forming part of county 

roads', and in the case held that the county 

could not bind itself to ald the City of Breckenridge in improving streets. It is obvious that 

they intended to draw a distlnction between 

streets, speaking generally of the arteries of 

traffic within a municipality, and such streets 

as form a continuation of the county road, but 

in any event a street which had been designated 

by then county~ asp a part of its system. . .' 

In this State, it is well settled, as a general 

propositionof, law,, that the,Commissioners Courtis a court 

of limited power and ,jurisdiction, and has no powers or 

duties except' those which~are clearly set forth and defined 

in the Constitutionand statutes, and those powers that 

arise by necessary implication. The authorities supporting 
Eon. Pat Beene, page 3 o-6146 

this general statement are so numerous, we do not deem it 

necessary to cite any of them. 

In view of the foregoing authorities, you are 

respectfully advisedthat it is our oplnlon that the Commissloners Court has no legal authority to expend county 

funds to pave the streets of the town or city lnquired 

about where such streets do not constitute a part of the 

county road system. 

Article 1082, Verno+s Annotated Civil Statutes, 

provides In part: 

"The City Council shall be invested with full 

power and authority to grade, gravel, repair, pave 

or otherwise improve any avenue, street or alley, 

or any portion thereof, within the limits ~of said 

city, whenever, by a vote of two-thirds of the 

aldermen present, they may deem such improvements 

for the public interest; provided, the city council 

pay one-third and the owners of the property twothirds thereof, except at the Intersection of street, 

from lot to lot, across the street either way shall 

be paid for by the city alone......" 

With reference to your question regarding the paving 

of all the streets around the courthouse and the payment for 

such Improvement, you are advised that It is our opinion that 

in virtue of Article 1082, the County being the owner of the 

courthouse property, would, under this Article, have authority to defray its proportionate part of cost of street improvements. It is our further opinion that the Commissioners 

Court has the legal authority to pave and pay for any portion 

of the streets around the courthouse where such streets 

constitute a part of the county road system, whether such 

streets are a part of the COUrthOUSe property or are owned by 

others than the County. 

Yours very truly 

AW:rt:wc ATTORNEYGENERAL OF TEXAS 

APPROVED NOV. 13, 1944. 

s/Grover Sellers 

ATTORNEYGENERAL OF TEXAS 

By 8A Ardell WilllamS 

Ardell Wllllams 

Approved Opinion Committee 

by s/BWB Chairman 

Assistant