503 

R-105 

PRICE DtiIEi 

:’ ‘.~. 

AITORNBY GENERM .. Mar;lq,1947~ ’ :, :.:: 

: : ‘, 

Hon. Clayton Bray : ;~ opinio~~d. V-89 .- “‘. 

County Attorney 

suttoli col+y I 

Sonora,.Texas 

.Re: Auth&hy of the Co&y as 

.,’ ‘,, agent’,for the State Highway 

Department to pay for condemnation awards for’city 

.’ 1 property and a related mat- 

.~ .’ ter. 

Dear Mr. Brar ’ ” 

.;. . . .-::. 

.: ,... . ..-.. 

Your request for an opinion of this Department &substantially as follows: 

. . ‘_: _ ,., 

“J%G~‘th&$ate Ijighv&y Department has’deeig-’ ” , 

ndted. a route thio.ugh’an’in+porhtcd .$ity ~of less 

thag ‘5,000, havbg’au aotive,‘cit): government, does 

the Countyas itgeixy for klie c.opde+ctation in behalf 

of the Hfghway Department.,,..h”ve ,$I pay ‘the ‘condem- : 

. . . nation’awaid to the’ciiy property bw’+~s, affected?: : 

: . 

.’ 

TThe city had ~r&ri&siy agreed’izifoimally to 

share the cost of’coridi&iation tithinthe city limits; now, the city pleads lack of funds for such project., 

._ 

‘I am familiar witli .the ‘proposition that’the 

C&&y may, by agreement withthe city, maintain 

a ‘county road within the city’ liniits but my problem is, as stated above, virhether the County can 

be compelled topay for the condemnat#on awards 

*thin the city l&its on a designated State Highway Route, so routed and designated by the State 

Highway Dep,artment. ., j. 

‘Obviously, the damages under condemnation 

in a city ‘would be greater xvher,e lots’and home’s 

are concerned than in the county proper where only 

acreage is involved. 

. ‘. 

“Also. does condemnation contemplate as cornpensable damage the expense of drilling a water 

‘well, moving a house, repairing incidental damage 

. 
c 

Hon. Clayton Bray, Page 2 Opiaion No. V-89 

caused to the house by moving, and extending and 

reconnecting plumbing, and such related items of 

expense? m 

The Supreme Court, in Norwood vs. Gonzales County, 

14 S. W. 1057, held that a Commissioners’ Court had ao authority 

to lay out a highway within the corporate limits of an incorporated 

town. It was there said that “the circumstances under which a 

County Commissioaers’ Court may assume authority over the 

streets of incorporated citieb, and control them as pub&roads, 

.were defined, for the first time by the Act of the Legislature of 

March 14, 1885.. The Act of 1885 referred to now appears as a 

part of the Revised Statutes of 1925, Article 6703, which as to that 

subject reads: 

“Said Court shall assume and have control of 

the streets and alleys in all ‘cities and incorporated 

‘towns in Texas which have ao de facto municipal 

gove-ent.in the active discharge of their official 

.duties.” . 

The above statute, by the clearest implication, denies 

such authority as to incorporatedcities and towno that do have a 

de jure or de facto government. It therefore results that the decision in Norwood v. Gonzales County, supra, is not only affected by 

Article 6703, as it may apply to this case, but that statute shows 

a legislative construction in conformity with the Supreme Court’s 

decision. (City of Breckenrwge v. Steph.eno County, 26 S. W. (2d) 

405.) The Stephens County case was later reversed by the Supreme 

Court (40 S. W. (2d) 43) but.in .so doing, the Court did not overrule 

the Norwood case as is clearly shown from the following quotation: 

-Of course, the town or ‘city governing board 

primarily has paramount jurisdiction of the streets 

and highways thereof, and the Commissioners’ Court 

would have no authority to improve streets or highways within municipalities * conflict with the jurisdiction of the c@y to improve the same.” 

The Stephens County case related to a street constituting 

a State highway and was decided after the transfer of the jurisdiction of Commissioners’ Courts to the Highway Commission, as to 

State highways, under provisions of said Article 6673 and the above 

quoted excerpts certainly lend no support to the proposition that it 

transferred all jurisdiction of city authorities over State highways 

in the corporate limits of a city. 

Article 6673, V.A.C.S., provides in part as follows: 
Hon. Clayton Bray, Page 3 Opinion No. V-89 

” 

. . . The Commission is authorized to take 

over and maintain the various State highways in 

Texas, and the counties through which said highways shall pass shall be free from any costs, expense, or supervision of such highways . . .* 

In the case of Gabbert v. City of Brownwood, 176 S. W. 

(2d) 344 (writ of error refused) a suit was initiated to recover for 

personal injuries as a result of alleged negligence on the part of 

the City of Brownwood. The case raised the question for decision 

as to whether, under the pleadings and the uncontroverted evidence, 

the City of Brownwood had jurisdiction of this particular section of 

the State Highway within its limits where the accident occurred, or 

whether the transfer of jurisdiction over State highways in a county 

from the County Commissioners* Court of such County to the State 

Highway.~C+nmission effected likewise a transfer of the jurisdiction 

of the cities and towns in such counties over State highways in such 

cities and towns to the State Highway Department. Judge Funderburk, speaking for the Court, said: 

“Viewing the subject matter as jurisdiction, 

there is a clear implication in Article 6673 that 

the jurisdiction which it transferred to the State 

Highway Commission was the ,jurisdiction which 

Commissioners’ Courts theretofore had over such 

parts of state highways as were within the several 

counties. Such implication results from the clause 

reading ‘and the counties through which said highways pass shall be free from any cost, expense or 

supervision of such highways.’ Why express then 

relief of counties from ‘any cost, expense or supervision’ and say nothing of the cost, expense and 

supervision by cities and towns, if the intended 

transfer was to affect both alike? Is not the conclusion inescapable that the only jurisdiction transferred was that theretofore possessed by county 

commissioners* courts? Under familiar principles the Legislature must be presumed to have 

been cognizant of the existing decisions and must 

have known that a transfer of only such jurisdiction as commissioners’ courts had would not imply the transfer of such jurisdiction as cities and 

towns had. Therefore, we think, charter provisions 

or other statutes giving cities and towns jurisdiction over highways therein remained special provisions, while Article 6673, although special in its 

relation to Article 6703, was general as to such 

charter provisions and said other statutes. In this 

view the Legislature, while it could have transferred 
Hon. Clayton Bray, Page 4 4 Opinion No. V-89 

jurisdiction of cities and towns over particular 

highways therein to the State Highway Department, nevertheless, neither expressed nor implied any intention to do s0.v 

Article 6673-b of Vernon’s Annotated Civil Statutes, provides as follows: 

‘The State Highway Commission is hereby 

authorized and empowered, in its discretion, to 

enter into contracts 0,r agreements with the governing bodies of incorporated cities, towns, and 

villages, whether incorporated under the General 

Laws, providing for the location, relocation, construction, reconstruction, maintenance, control, 

supervision, and regulation of designated State 

highways within or through the corporate limits, 

of such incorporated cities, towns, and villages. 

and determining and fixing the respective liabilities or responsibilities of the parties resulting 

therefrom; and such incorporated citie.8, towns, 

and villages are hereby authorized and empowered, 

through the governing bodies of such cities, town, 

and villages to enter into such contracts or agreements with the State Highway Commission.” 

Article-6674n, Vernon’s Annotated Civil Statutes, provides. as follows: 

“Whenever, in the judgment of the State Highway Commission. the use or acquisition of any land 

for road, right of way purposes, timber, earth. 

stone, gravel or other material, necessary or convenient to any road to be constructed, reconstructed, maintained, widened, straightened or lengthened, 

or land not exceeding one hundred (100) feet in width 

for stream bed diversion in connection with the locating, relocating or construction of a designated 

State Highway by the State Highway Commission, the 

same may be acquired by purchase or condemnation 

by the County Commissioners Court. Provided that 

the County in which the State Highway is located 

may pay for same out of the County Road and Bridge 

Fund, or any available county funds. 

“Any Commissioners Court is hereby authorized to secure by purchase or by condemnation on. 

behalf of the State of Texas, any new or wider right 

of way or land not exceeding one hundred (100) feet 

in width for stream bed diversionin connection with 
Hon. Clayton Bray, Page 5 Opinion No. V-89 

the locating; relocating or construction of a designated State Highway,‘or gland or lands for material 

or borrow pits, to be used in the construction, reconstruction or maintenance of State Highways and 

to pay for the same out of the County Road and 

Bridge Fund, or out of any special road funds or 

any available county funds. The State Highway 

Commission shall be charged with the duty of furnishing to the County Commissioners Court the 

plats or field notes of such right of way or land 

and the description of such materials as may be 

required, after which the Commissioners Court 

may, and is hereby authorized to purchase or condemn the same, with title to the State of Texas, in 

accordance with such field notes. Provided that in 

the event of coudemnation by the County the procedure shall be the same as that set out in Title 52, 

Articles 3264 to 3271, inclusive; Revised Civil Statutes of Texas, of 1925. Provided that if the Caunty 

Commissioners Court of any.County in which such 

right of way is, in the judgment of the State Highway Commission, necessary for the construction 

of a part of a designated State Highway shall fail or 

refuse to secure by purchase or by condemnation 

for or on behalf of the State of Texas, such right of 

way or part thereof, immediately and as speedily 

as possible, under said Title 52, Articles 3264 to 

3271, inclusive, Revised Civil Statutes of Texas, of 

1925, after being served with a copy of an order of 

the State Highway Commission identifying .by field 

notes, the part of the Highway necessary for the 

construction of such designated State Highway and 

requesting such County Commissioners Court to 

secure same, then and in such event and within 

ten (10) days after the service of such notice, said 

State Highway Commission shall direct the Attorney General of Texas, to institute condemnation 

proceedings in the name of the State of Texas for 

the purpose of securing such right of way. The 

right of eminent domain to condemn any part of a 

right of way for a State designated. highway, under 

the conditions herein set out is hereby conferred 

on the State Highway Commission and the jurisdiction for the~exercise of such right is hereby conferred on the County Court of Travis County. Such 

condemnation proceedings shall .be instituted .by the 

Attorney General by filing a statement ~for condemnation with the County Judge of Travis County. Texas, and the venue of such proceeding shall be in 

Travis County, Texas, and jurisdiction and authority 
Hon. Clayton Bray, Page 6 Opinion,No. V-89 

to appoint three (3) disinterested freeholders of 

Travis County, Texas, as Commissioners is hereby conferred upon the County Judge of Travis 

County, Texas, and otherwise such condemnation 

shall be according to the provision of said Title 52, 

Articles 3264 to 3271, inclusive, Revised Civil 

Statutes of Texas, of 1925.’ 

The opinion in Gabbert. et al v. City of Brownwood, supra, further states: 

‘The conclusion seems to us to be inescapable 

that the effect of Article 6673 was to confer upon 

the State Highway Department only the. former 

jurisdiction of county commissioners’ courts, which 

although in terms broad enough to include the former jurisdiction of cities and towns, did not do so, 

for the very same reason they were not included in 

the jurisdiction of county commissioners* courts 

which said Article transferred to the Highway Department. 

‘More effective than Article 6673b as indicating legislative construction of Article 6673 is 

Article 6674n authorizing commissioners’ courts 

at county expense, but only as agents of the State 

Highway Department, to condemn lands and materials for ‘construction, reconstruction, or maintenance of State Highways.’ Will it be contended that 

this empower6 county commissioners’ courts to 

condemn lands and materials in the city limits of 

an incorporated city or town for state highway purposes? Why should the power be exercised at county expense rather than city or town expense 7 ” LI 

Article 1016 of Vernon’s Annotated Civil Statutes, provides as follows: 

“Any incorporated city or town containing not 

more than five thousand population in this State 

shall have the exclusive control and power over 

the streets, alleys, and public grounds and highways of the city, and to abate and remove encroachments or obstructions thereon; to open, alter, widen, extend, establish, regulate. grade, clean and 

otherwise improve said streets; to put drains or 

sewers therein, and prevent incumbering thereof 

in any manner, and to protect same from encroachment or injury; and to regulate and alter the grade 
Hon. Clayton Bray, Page 7 Opinion No. V-89 

of premises; to require the filling up and raising 

of same; and ‘such city council shall also have 

power to alter or vacate the Halley in any block of 

ground in the city upon written application of the 

owner of the block, or if there be more than one 

owner of such block, then upon the written,application of all owners thereof uniting in such application, such alley so vacated shall thereupon revert to and become the property of the owner of 

the block of which it was a part, or if more than 

one, then to the owners of the adjoining lotstherein, each extending to the center of the alley so 

vacated. * 

In the case of Adams& al v. Rockwall County (Comm. 

App.) 280 S. W. 759, it was held that the County of Rockwall did 

not have the power to condemn land for road purposes within the 

corporate limits of the town of Royse. In discussing the above 

quoted Article, the Court stated as follows: 

“There does not appear to be an ambiguity in 

the language employed by the Legislature to express its intent as to what agency should exercise 

control over the highways within incorporated 

cities aad towns, or as to the exclusive nature of 

that control.” 

i the case of Benat v. Dallas County, 266 S. W. 539, 

the Court stated: 

“Except in cases coming within the scope of 

some general or special statute in which authority 

is explicitly conferred, counties are without authority to lay out or control streets and highways 

of the incorporated cities and towns, or to have 

property condemned for such purposes.” 

The Court was of the opinion that the Commissioners’ 

Court of Dallas County had no power to take land by eminent domain proceedings within an incorporated city and their filing of 

a petition to condemn land did not confer jurisdiction. If they 

have no power to condemn land within the cities, clearly, they 

could not be compelled to pay for such condemnation awards as 

agents of the State Highway Department. Therefore, it is the 

opinion of this Department that a county as agent for the State 

Highway Department may not be compelled to pay the condemnation award to a city property owner whose property has been 

condemned for State highway purposes. 
. 

i 

. . . . 

Hon. Clayton Bray, Page 8 Opinion No. V-89 

In view of the foregoing answer, a discussion of your 

question of compensable damages relating to the drilling of a water well, moving a house and repairing incidental damage is not 

deemed necessary. 

SUMMARY 

Inasmuch as a county may not condemn land 

within an incorporated city or town, by the same 

token, a county may not be compelled, as agent 

for the State Highway Department, to pay the condemnation award to city property owners whose 

land is condemned. (Articles 6673 and 6703, R.C. 

S. 1925; Gabbert, et al v. City of Brownwood, 176 

S. W. (2d) 344; City of Breckenridge v. Stephens 

County, 26 S. W. (2d) 405; and Benat v. Dallas 

County, 266 S. W. 539.) 

Yours very truly, 

ATTORNEYGENERALOFTEXAS 

Burnell Waldrep 

Assistant 

BW:djm:sl 

APPROVED MAR 20 1947 

z& e.hL&LP 

ATTORNEYGENERALOFTEXAS