Hon. Pat Beene

County Attorney Andrews, Texas

Dear Sir: OpinionNO. 0-6146 Re: Whether the Commissioners Court of Andrews County has the legal authority to spend county funds on street Improvementsof an lncorpoaratedtown 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,

. . .Ipresent'a question,which has reference to the right of the CouxnLsaioners' Court to spendmoney on the streets of an Incorporatedtown, such expendituresto be in the form of paving several blocks of a streetwhich 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. "Theyalso desire to pave all of the streets around the Courthouse (more than their one-half of such street).

"Iam 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 BreckenridgeV. Stephens. They Bo not say so in
somany words, but leave the lmpresslonthat 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

"Asa general proposltion of law, it is settled that the control and jurisdictionover 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 improvementof streetswithin the corporate limits of the city when said strsets
were also a public road, particularlywhen done with the consent of the city. See Hughes vs. County CommissionersCourt ofHarris County, 35
s. w. (2d) 818. This same conclusionwas 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:

'TheCommissionersCourt may expend County road bond funds for improvementof city streets formingpart of county roadswhere made with city's consent.'

"Thegeneral underlying theory being that such improvementmust be confined to streets formingpart of a county road system and also that the countymust have the consent of a municipal corporationwithin 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 streetsgenerallywithin 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 'streetsformingpart 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 distlnctionbetween streets, speakinggenerally of the arteries of trafficwithin a municipality,and such streets
as form a continuation of the county road, but in any event a streetwhich had been designated by thencounty~

aspa part of its system.

. .'

In this State, it iswell settled,as a general propositionof, law,, that the,CommissionersCourtis a court of limitedpower and ,jurisdiction, and has no powers or duties except'

thosewhich~are clearly set forth and defined in the Constitutionand statutes,and those powers that arise by necessary implication. The authorities supportingEon. Pat Beene, page 

### 3 o-6146

this general statementare so numerous,we do not deem it necessary to cite any of them.

In view of the foregoing authorities,you are respectfullyadvisedthat 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 aboutwhere such streetsdo not constitute a part of the county road system.

Article 

### 1082,Verno+s Annotated Civil Statutes, provides Inpart:

"TheCity Council shallbe investedwith full power and authority to grade, gravel, repair, pave or otherwise improveany avenue, street or alley,
or any portion thereof,within the limits~ofsaid 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-thirdand the owners of the property twothirds thereof, except at the Intersectionof street, from lot to lot, across the street eitherway shall be paid for by the city alone......"

With reference to your question regarding the paving of all the streetsaround 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 courthouseproperty,would, under this Article, have authority to defray its proportionatepart 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 courthousewhere such streets constitutea 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 ArdellWllllams
Approved Opinion Committee by s/BWB Chairman Assistant