# 503 R-105

PRICE DtiIEi :’ ‘.~. AITORNBYGENERM .. Mar;lq,1947~ ’ :, :.:: : : ‘,
Hon. Clayton Bray : ;~ opinio~~d. V-89 .- “‘

. CountyAttorney 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 anda 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,$Ipay ‘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 ‘countyroad withinthe 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 ‘wouldbe greater xvher,elots’and home’s are concerned than in the county proper whereonly acreage is involved.

. ‘

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

‘well, moving a house, repairing incidental damage .c

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

caused to the house by moving, andextending and reconnecting plumbing, and such related items of expense? m The Supreme Court, in Norwood vs. Gonzales County, 14S. W. 1057, held that a Commissioners’ Court had ao authority to lay out ahighway 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 andhave control of the streets andalleys in all ‘cities andincorporated

‘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 andtownothat do have a dejure 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 withthe Supreme Court’s decision. (City ofBreckenrwge v. Steph.enoCounty, 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 andhighways thereof, andthe Commissioners’ Court would have no authority to improve streets or highways within municipalities * conflict withthejurisdiction of the c@y to improve the same.” The Stephens County case related to a street constituting a State highway andwas decided after the transfer of thejurisdiction of Commissioners’ Courts to the Highway Commission, as to State highways, under provisions of said Article 6673 andthe above quoted excerpts certainly lend no support to the proposition that it transferred alljurisdiction 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, andthe 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 ofBrownwood, 176 S. W. (2d) 344 (writ of error refused) a suit was initiated to recover for personal injuries as a result of alleged negligence onthe 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 ofBrownwood hadjurisdiction ofthis particular section of the State Highway within its limits where the accident occurred, or whether the transfer ofjurisdiction 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 thejurisdiction of the cities andtowns in such counties **over** State highways in such cities andtowns to the State Highway Department. Judge Funderburk, speaking for the Court, said:

“Viewing the subject matter asjurisdiction, there is a clear implication inArticle 6673 that thejurisdiction 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 andtowns, if the intended transfer was to affect both alike? Is not the conclusion inescapable that the onlyjurisdiction 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 knownthat a transfer of only suchjurisdiction as commissioners’ courts had would not imply the transfer of suchjurisdiction as cities and towns had. Therefore, we think, charter provisions or other statutes giving cities andtownsjurisdiction over highways therein remained special provisions, while Article 6673, although special in its relation toArticle 6703, was general as to such charter provisions and said other statutes. Inthis view the Legislature, while it could have transferredHon. Clayton Bray, Page 4 4 Opinion No. V-89

jurisdiction of cities andtowns 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** throughthe corporate limits, of such incorporated cities, towns, andvillages. and determining andfixing the respective liabilities or responsibilities ofthe parties resulting therefrom; and such incorporated citie.8, towns, and villages are hereby authorized andempowered, through the governing bodies of such cities, town, and villages to enter into such contracts or agreements with the StateHighway Commission.” Article-6674n, Vernon’s Annotated Civil Statutes, provides. as follows:

“Whenever, in thejudgment of the State Highway Commission. the use or acquisition of any land for road, right ofway 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 StateHighway 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 outofthe CountyRoad andBridge 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 beddiversionin connection withHon. Clayton Bray, Page 5 Opinion No. V-89

the locating; relocating or construction of a designated State Highway,‘or glandor lands for material or borrow pits, tobe used inthe construction, reconstruction or maintenance of State Highways and to pay for the same out of the CountyRoad 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 ofway or land andthe description of such materials as may be required, after which the Commissioners Court may, and is hereby authorized to purchase or condemn the same, withtitle to the State of Texas, in accordance with such field notes. Provided that in the event of coudemnation by the Countythe 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, inthejudgment 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 ofthe State of Texas, such right of way or part thereof, immediately andas 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 .byfield notes, the part ofthe Highway necessary for the construction of such designated State Highway and requesting such County Commissioners Court to secure same, then and in such event andwithin 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 ofway. The right of eminent domain to condemn anypart of a right ofway for a State designated. highway, under the conditions herein set out is hereby conferred onthe State Highway Commission andthejurisdiction for the~exercise of such right is hereby conferred on the County Court of Travis County. Such condemnation proceedings shall .be instituted .bythe Attorney General by filing a statement ~forcondemnation with the CountyJudge of Travis County. Texas, andthe venue of such proceeding shall be in Travis County, Texas, andjurisdiction andauthorityHon. Clayton Bray, Page 6 Opinion,No. V-89

to appoint three (3) disinterested freeholders of Travis County, Texas, as Commissioners is hereby conferred uponthe CountyJudgeof 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 ofBrownwood, supra, further states:

‘The conclusion seems to us to be inescapable that the effect ofArticle 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 thejurisdiction of county commissioners* courts which said Article transferred to the Highway Department.

‘More effective thanArticle 6673b as indicating legislative construction ofArticle 6673 is Article 6674n authorizing commissioners’ courts at county expense, but only as agents of the State Highway Department, to condemn lands andmaterials for ‘construction, reconstruction, or maintenance of State Highways.’ Will it be contended that this empower6 county commissioners’ courts to condemn lands andmaterials 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 1016of Vernon’s Annotated Civil Statutes, provides as follows:

“Any incorporated city **or** town containing not more thanfive thousand population in this State shall have the exclusive control andpower over the streets, alleys, andpublic grounds andhighways of the city, andto 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, andprevent incumbering thereof in any manner, andto protect same from encroachment or injury; andto regulate andalter the gradeHon. Clayton Bray, Page 7 Opinion No. V-89

ofpremises; to require the filling up and raising of same; and‘such city council shall also have power to alter or vacate the Halleyin any block of ground in the city uponwritten application ofthe owner of the block, or if there be more than one owner of such block, then uponthe written,application of all owners thereof uniting in such application, such alley so vacated shall thereupon revert to andbecome the property of the owner of the block of which it was a part, or if more than one, thento the owners of the adjoining lotstherein, each extending to the center of the alley so vacated. *
Inthe case ofAdams& al v. Rockwall County (Comm. App.) 280 S. W. 759, it was held that the County ofRockwall did not have the power to condemn land for road purposes within the corporate limits of the town of Royse. In discussing the above quotedArticle, 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 andhighways ofthe incorporated cities and towns, or to have property condemned for such purposes.”
The Court was of the opinion that the Commissioners’ Court ofDallas Countyhad no power to take land by eminent domain proceedings within an incorporated city andtheir filing of a petition to condemn land did not confer jurisdiction. If they have nopower to condemn land within the cities, clearly, they could notbe 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

Inview of the foregoing answer, a discussion ofyour question of compensable damages relating to the drilling of awater well, moving a house and repairing incidental damage is not deemed necessary.

SUMMARY

Inasmuch as a county may not condemn land withinan 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 ofBrownwood, 176 S. W. (2d) 344; City of Breckenridge v. Stephens County, 26 S. W. (2d) 405; andBenat 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