### THEATTORNEYGENERAI. OFTEXAS

Mr. Ed H. McLaran County Attorney Madison County Madisonville,Texas November 

### 18,1960
OpinionNo.

### w-962
Re:

Dear Mr. McLaran: Whether the Commissioners' Court has the authority under Article 

### 6711, Vernon's Civil Statutes, to entertain jurisdictionon the application of two taxpaying citizens for the establishmentof 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 jurisdictionon the application of two of its taxpaying citizens for the establishmentof 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 locatedwithin the incorporated limits of the City of Madisonville. Two fences were built by an adjoining land owner which completely blocked the passageway to their propertiesand they filed a petitionwith the Commissioners1Court 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 

### 6711of Vernon's Civil Statutes states in part as follows:

"Any linesbetween differentpersons 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 personsMr. Ed H. McLaran, Page 2 (w-962)

occupying the land throughwhich such route shallbe declared, that the Commissioners Court may agree on in order to avoid hills, mountains or streams throughany and all enclosures, shallbe 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 connectinghis said landwith the county public road system,may make a sworn application to the CommissionersCourt for an order establishing such road, designating the lines sought to be opened, and the names and residences of the person or persons affectedby suchproposed 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 shallbe paid by the County, and the CommissionersCourt shall not be required to keep such roadworked 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,[31; Acts 1953, 53rd Leg., p. 1054, ch. 438, B 1." The Texas courtshave repeatedlyheld that the Commissioners'Court is a court of limited jurisdictionand has only such powers as are conferred upon it by statutesand Constitution of this State, eitherb expressed terms or by necessary implication. Section 1 5 of ArticleV of the Texas Constitution, Von Rosenberg v, Lovett, 173 S.W. 508; Galveston H.'& S.A. Ry. Co. v. Uvalde County, 

### 167S.W. 2d 

### 084;11 Tex. Jur. 564.
As a general proposition of law, It is settled that the control and jurisdictionover streets of a munlcipalltv are exclusive in that city or town. However, the courtsMr. Ed H. McLaran, page 

### 3 (W-962)

have held that the countyhas the right to expend funds in the improvement of streetswithin 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 OpinionV-971,

The questionnow is whether the Legislaturehas conferred upon the CommissionersICourt 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 streetwithin that municipalityand to expend county money for the building of such a road and fnr its maintenance. Paragraph 1 of Article 

### 6711of 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 connectinghis said land with the countypublic road system,.
. ." (Emphasisadded).

cess ions It is our opinion that personswho do not have an acto their property and seek to comewithin the provisof Article 

### 6711,

must be in a position_to Establish clearly that such road will connect to the "countypublic system"and form a part of the county road system or a connecting link in Statehighways.
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$' ComqissionerslCourt have tine authority and,the power to exercise the right of eminent domainwithin the boundaries of a~municipalitywith the prior consent of the governing. body of such municipality and provides that the county in which the State highway is to be locatedmay 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 municipalitywith prior consent of the governingbody of such municipality is hereby conferredupon 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 cemeterypurposes,where said land, right of way or easement is, in the judgment of the CommissionersCourt 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 ,Ina State Highway. . ..'I It is assumed fromyour letter that the City of Madisonville would give its consent to the Commissioners'Court should they seek it. This officeheld in Attorney General's Opinion

### ~~-872, dated June 29th, 

### 1960, in part as follows: "The quoted sections of Article 

### 6711clearly indicate the intent of,the Legislature in adopting amendments to the statute. The statute as amended is to remedy the situationexisting when land owned by a person or corporation is so surroundedby other land ownedby other persons or corporations that it may not ,bereachedwithout crossingprivate property. This statuteauthorizes the connection of such isolated land with the county road system." (Emphasisadded).
In answering the auestion as to whether Article 

### 6711is mandatory or directory,we held in this same opinion that:

"Itwould be inaccurate to describe the statute, in its entirety,as being either 'mandatory' or 'directory.' The statute lists certain procedureswhich must be followed,and directs some actions of the county commissioners. However, the orderwhich may be issuedby the Commissioners' Court after hearing the evidence is subject to the discretion of the court." It Is our opinion thatyour Commissioners'Court has been given the authority to entertain jurisdictionof this application, if the provisions of the statutehave been compliedwith and if such road will connectwith the countyMr. 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 propertywithin the boundaries of this municipality where prior consent of the governingbody 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 jurisdictionof an appllcation of two landowners for the establishment of a public road over the land of another to the countypublic 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 ,MarthaJoe Stroud Joe B. M&laster
REVIEWED FOR THE ATTORNEY GENERAL BY: Leonard Passmore