THEATTORNEYGENERAI. 

OFTEXAS 

Mr. Ed H. McLaran 

County Attorney 

Madison County 

Madisonville, Texas 

November 18, 1960 

Opinion No. w-962 

Re: 

Dear Mr. McLaran: 

Whether the Commissioners' 

Court has the authority under Article 6711, Vernon's 

Civil Statutes, to entertain 

jurisdiction on the application of two taxpaying citizens for the establishment of 

a road over the land of another to the county road system. 

We are in receipt of your request for an opinion from 

this office concerning the following question: 

"Would the commissioners' court of said 

county have authority under Art. 6711, V.C.S. 

of Texas, to entertain jurisdiction on the 

application of two of its taxpaying citizens 

for the establishment of a road or passageway 

over the land of another to the county road 

system?" 

In your letter, you provided us with these additional 

facts. The property In question is two lots located within 

the incorporated limits of the City of Madisonville. Two 

fences were built by an adjoining land owner which completely blocked the passageway to their properties and they filed 

a petition with the Commissioners 1 Court demanding a passageway over the land of the person who built the fences. The 

city acquiesced to the county any authority it had In the subject matter. 

Article 6711 of Vernon's Civil Statutes states in part 

as follows: 

"Any lines between different persons or 

owners of lands, any section line, or any 

practicable route, practicable route as used 

herein, shall mean a route which will not unduly inconvenience the owners or persons 
Mr. Ed H. McLaran, Page 2 (w-962) 

occupying the land through which such route 

shall be declared, that the Commissioners 

Court may agree on in order to avoid hills, 

mountains or streams through any and all enclosures, shall be declared a public highway 

on the following conditions: 

"1 . One or more freeholders, or owners 

of lands, persons, firms or corporations, intO 

whose lands there Is now no public road or 

public means of access, who desires an access 

road connecting his said land with the county 

public road system, may make a sworn application to the Commissioners Court for an order 

establishing such road, designating the lines 

sought to be opened, and the names and residences of the person or persons affected by 

such proposed access road, and stating the 

facts which show a necessity therefor. (Emphasis added) 

" . e s 

"4. The damages to such landowners 

be assessed by a jury of freeholders, as _ _ _ _. 

shall 

for . other public roads, and ail costs attenaing tne 

proceedings In opening said road shall be paid 

by the County, and the Commissioners Court shall 

not be required to keep such road worked by the 

road hands as in the case of other public roads, 

but shall place said roads in the first instance 

in condition for use as access public roads. Acts 

1884, ist C.S., pe 20; G.L. vol. 9, p. 553; Acts 

1930, 4LstLeg., 5th C.S., p. 207, ch. 62, [3 1; 

Acts 1953, 53rd Leg., p. 1054, ch. 438, B 1." 

The Texas courts have repeatedly held that the Commissioners' Court is a court of limited jurisdiction and has 

only such powers as are conferred upon it by statutes and 

Constitution of this State, either b expressed terms or 

by necessary implication. Section 1 5 of Article V of the 

Texas Constitution, Von Rosenberg v, Lovett, 173 S.W. 508; 

Galveston H.'& S.A. Ry. Co. v. Uvalde County, 167 S.W. 2d 

084; 11 Tex. Jur. 564. 

As a general proposition of law, It is settled that 

the control and jurisdiction over streets of a munlcipalltv 

are exclusive in that city or town. However, the courts 
Mr. Ed H. McLaran, page 3 (W-962) 

have held that the county has the right to expend funds 

in the improvement of streets within the corporate limits 

of a city when such streets form a part of the county road 

system, or a connecting ltnk in State highways, when done 

with the consent of the city. City of Breckenridge v. 

Stephens County, 120 Tex, 318, 40 S W 2d 43 (1931). 

v. County Commissioners~ Court of H&&s Count 

2d 818 (Tex. Civ. App. 1931); Attorney GeneralTs Opinion 

v-261, dated June 23, 1947; Attorney General's OpinionO-4256, 

dated December 12, 1941; 

dated December 16, 1949. 

Attorney General's Opinion V-971, 

The question now is whether the Legislature has conferred upon the Commissioners I Court the authority to establish a county road within a municipality so as to provide 

a road for property owners who have been cut off access to a 

street within that municipality and to expend county money 

for the building of such a road and fnr its maintenance. 

Paragraph 1 of Article 6711 of Vernon's Civil Statutes 

provides in part that: 

"One or more freeholders, or owners of lands, 

. . e into whose lands there is now no public road 

or public means or access, who desires an access 

road connecting his said land with the county public road system,. . ." (Emphasis added). 

cess 

ions 

It is our opinion that persons who do not have an acto their property and seek to come within the provisof Article 6711, must be in a position_to Establish 

clearly that such road will connect to the "county public 

system" and form a part of the county road system or a connecting link in State highways. 

House Bill 77 of the 54th Legislature; which wascodified by Vernon's Cl.vi!. Stati>.ces as Article >6674n, provides 

that the State Highway Commission as well asthe Coun$' 

Comqissionersl Court have tine authority and, the power to 

exercise the right of eminent domain within the boundaries 

of a~municipality with the prior consent of the governing. 

body of such municipality and provides that the county in 

which the State highway is to be located may pay for same 

out of the County Road and Bridge Fund, or any available 

county fund. 

House Bill 670 of the 56th Legislature, which was codified by Vernon's Civil Statutes as Article 6674n-2, provides 

in part as follows: 
Mr. Ed H. McLaran, page 4 (w-962) 

'Section 1. The right of eminent domain 

within the boundaries of a municipality with 

prior consent of the governing body of such 

municipality is hereby conferred upon counties 

of the State of Texas for the purpose of condemning and acquiring land, right of way or 

easement in land, private or public, except 

property used for cemetery purposes, where said 

land, right of way or easement is, in the judgment of the Commissioners Court of such county, 

necessary or convenient to any road which forms 

or will form a connecting link in the county 

road system or a.connecting link ,In a State Highway. . ..'I 

It is assumed from your letter that the City of Madisonville would give its consent to the Commissioners' Court 

should they seek it. 

This office held in Attorney General's Opinion ~~-872, 

dated June 29th, 1960, in part as follows: 

"The quoted sections of Article 6711 clearly indicate the intent of,the Legislature in 

adopting amendments to the statute. The statute 

as amended is to remedy the situation existing 

when land owned by a person or corporation is so 

surrounded by other land owned by other persons or 

corporations that it may not ,be reached without 

crossing private property. This statute authorizes the connection of such isolated land with 

the county road system." (Emphasis added). 

In answering the auestion as to whether Article 6711 is 

mandatory or directory, we held in this same opinion that: 

"It would be inaccurate to describe the 

statute, in its entirety, as being either 'mandatory' or 'directory.' The statute lists certain procedures which must be followed, and 

directs some actions of the county commissioners. 

However, the order which may be issued by the Commissioners' Court after hearing the evidence is 

subject to the discretion of the court." 

It Is our opinion that your Commissioners' Court has 

been given the authority to entertain jurisdiction of this 

application, if the provisions of the statute have been 

complied with and if such road will connect with the county 
Mr. Ed.H. McLaran, page 5 (W-962) 

public road system. Further, it is our opinion that the 

Commlssloners~ Court has the right of eminent domain to 

acquire this property within the boundaries of this municipality where prior consent of the governing body of such 

municipality Is so conferred on the county. 

SUMMARY 

The Commissioners'. Court has the 

authority under. Article 6711 and Artlcle 6674n-2, Vernon's Civil Statutes, 

to entertain jurisdiction of an appllcation of two landowners for the establishment of a public road over the land 

of another to the county public road 

system. 

Yours’ very truly, 

WILL WILSON 

on F. Pesek 

LFP:mm:ms 

APPROVED: 

OPINION COMMITTEE 

W. V. Geppert, Chairman 

W. Ray Scruggs 

Llnward 'Shivers 

,Martha Joe Stroud 

Joe B. M&laster 

REVIEWED FOR THE ATTORNEY GENERAL 

BY: Leonard Passmore