## GENERAL Tmx A-rroxa~~Y

OF TEXAS
Au- il.

- January 24, 1948

Hon. Roy C. Snodgrass County Attorney potter county Amarillo, Texas 0p1Ill0n no. v-484 Re: Authority of Commissloners Court of Potter County to expend money fromtheRoad&Brldge Fundto improve city etreeta. Attention: Hon. Johu Peterson

Asst. County Attorney ' Deer Mr. Snodgrass:

.Your request for an opinion of this department &leting to .the,expendlture of fun&s from the Road enil Bridge FundoftPotter County in the improvement 'of certain streets in the City of Amarillo is sulmtsntial&y fol~lows: "The Conmiissloiers Court.desirea to know whether orhot they aan legally expend moxiey froa~.the road and **briiie** fund~on ~cdrtaln streets within the City of eil&o and I amaending you **under** aeparatti ccver a mapwhich inoludea the greater portion of Potter County, Texas, and shows all. county roads and olty streets and which maphas marked on 1%the **road8** desired tb be improved.

. a8

"The roads to be iinproved are: "At the Qlemiood School, 24th Street from Cleveland to Miwor, Mirror Street from24th to 25th, I 25th Stre~etSrom.Slirror to Cleveland.
'At ha Senb&n School 8th Street from Ho&d to Mirror, Mirror Street from 7th to 8t@, :. Roberta Street rrom 6tbto 8th, 7th Sttieet from Roberts to Wlllia@., Wllll~s Street **from** 7th to 8th,Hon. Roy C. Snodgrass, page 2 (v-484)

8th Street from Williams to Ross.

“At the Dwight MorrowSchool, 16th Avenuefrom Arthur to Houston.

“The tentetive,agreement Is as follows: TheCity of Amarillo will pay for the excavating atidgrading of the roads. Theschool districts will pay for the topping of the roads. Theproperty owners will pay for the curb and gutter work and the Countywill pey for the calliche andfor putting it on the ground.

“Wewould like to point out someaddi-

. tlonel facts:

“(1) Thst all of this work Is to be done in Precinct #l andbe,tter than gC$of the road andbridge fund Is madeupfrom automobile license fees paid by residents of Precinct #L

“(2) Thet better.tban gC$of the people of Potter County **reside** in Precinct #l.

“(3.) That.the road improvements to be -,doneare eround,and fitiai,thr.ee achools~and that’ students of these schools in some3nsjx.ncix comefrom other preolncts~-and during the winter months, the roads not beinghisrd~ tkrfaced creates an -bearable sltuati6n.~ "(4) Numerouspeople in the City of ~. Imarillo have polnted out to the ~Comm.lssioIiera Court the inequity~ in their ~ml.r&~ of not being~~able to spend oounty road end bridge funds ror street& in the City of Amarillo in Precinct,#l where,over. gC$of the moneyin makingup the fund comes from, except on. maina.rteries through the city whlch~oonnect with Foads Cominginto'the city limits and which roads are slpeady Improved ade&ately..

“In view of the above *set.out ?a$& the Coomlasloners Court aubml$s to you the question .of whether or not the county **road** and bridge fund can be spent otith6 Greet& enumerated and set out above anddesignated on the mapfurnished you and **under** ‘the rrc+adi-tiotls reflected in the faot aitu+q,n set out above.n .-

0 inion No. V-261, addressed to you, dated June 23, &

19 7, held that County RoadandBridge FundsHon. Roy C. Snodgrass, pagej (V-484)

,
maybe expended in the Improvement of city streets with the consent of said city, provided auoh streets ace an integral part of the county road system, citing City of Breckenrldge v. Stephens County, 40S. W. (24) 43, and Hughesv. County Commissioners Court of Harris County, 35s. w. (26) 818. Thequestion nowpresented is whether the ConrPiasloners Court of Potter Countyhas the authority to improve streets in the City of Ama~lllo which a0 not **form** an integral part or the.county road system **of** said county. It is assumedfrom your factual sltuatlon, aawell as the mapattached thereto, that the streets in question are not city streets forrping a part of the aounty road system of Potter County.

In the ca8e of Uilliams v. Carrolf, 

### 182S; 

### W. 29, the court held that a stre6t geperelly-metis sipasaagewaywithin the bocuids of 8municipal corporation, while a roadmeansa county highway forminga emoation between the alty limits of one oity or town and the city limits of another city or town: andtmile **a** ~street is ahimay iti LSnot +eoesaarlJy true~.that **a** hlghway.+s a street.

As to th&qnesiXon of.eiclusive jplrlbdlctlon over atriets, tti court In Oabbept v. City of Bro~ood,


### ~. 176

### s.Wi **(26)** +4, 

### sga~ea 68follows:. "'Ini8gl this~.same ~questionwas~.8gain presented :in B

### mf00a vi..@onsaleS County, 79Tex. 218,.1 &s..~Y.,lO57; 1058, 'wherein the Su~eme~CoUrt d@olaxe$ that the.adm+. miasiotieral.oourt waswithout juriatictlon tq 

### opehup aroad. through ~lanaiitbin th8

.. **.oorporate** lhltp of the olty of 

### aoliaa. mat the wora.juri.saicti~ wagused :aa- I v$aedly Sa shownby t$~'holalnga that.*.,; prooeedings~~were without effect and in: oapable of ra$.~floation, even **aiter** the exclusion of the psrtioular aeotion of-, :. the 

### roadfrom the olty ,liri$s,~ there-~ placing it withLn.the juri8aiatbn or'the ~aomisslone~ta oourt. Thlb reeult&.l.oi~ oourfse, from the familiar prlnolple that whatiever La,voWas ~diatinguishea froth ', ~. -.. merely voidable, oamot Abevalldate&bg ratification. -.The.declsion in Borw+v,. Oonzalea County, aupra, has~so far as we. know, x&eve?been:overruled andhas been followed in the following oases: BenatHon. Roy C. Snodgrass, page 4 (v-484)

v. Dall.as County, Tex. Clv. App., 266 S. W.539, writ refused, Rueter v. State, 43Tex. Cr. R. 572, 67 S. W.505; Blultt v. State, 56Tex. Cr. R. 525, 121 S. **W.** 168, dissenting 0lnlon; 83 Tex.~Cr. R. cowanav. State,

29 f;, 202s. W. 961; City of Breckenrldge v. Stephens County, Tex. Clv. App., 26S. W.24 405. It la true that the last mentldned case (by this court) was reversed by the SupremeCourt, but that in so doing that cburt ala not overrule the Noruooa caSe is clearly shownby the following quotation from the opinion: 'Of course, the town **or** city governing board primarily has paramountjurlsalctlon of the streets and highways thereof, andthe commlssloners~ court would have noauthority to improve streets or highwaya wlthin'munlcipalitles In conflict. with the jurisdiction of the. city to improve the SBBIB.~" Article 6703, Vernon's Clvll Statutes, provides with reference to Comndssioners~Court that:

1, c&&l said court shall assumeand have 0s the streets aad alleys In all cities andIncorporated towns in Texas which have no defacto municipal government in the active discharge 0s their 0rritai duties.'! Theaeclalons of the Texas courts have repeeitealy held that the Commlssloners~ Court is a court of limited jurlsdi&+lon andhas only such powers 

### aaare conferred upon it by the statute! and Conatltutlon of this State, either by expressed terms or by neoessary lmpllcation. Section 18 of ArtiOle V, of the Texas Constltution, Article 2351, V. C. S.; VbnRosenberg v. Lovett, 173S. W.508; Galveston H. 6sS. A. Ry. Co. v. Uvalde County, 167 S. W. (26) 1084; 11 Tex.,Jur. 564.

Byvirtue of the fact that the jurisdiction of city streets 1s vestea~ exclusive1 1 in the City Qovernmentandin the absence of author ty granting to Commlealoners' Courts authority over st.reets in Said cities, 1t.i.s the opinion of this Department that those streets in Amsrlllo whloh a0not form an integral part 0s the county road system or connecting llhks ln oounty rqaas,Hon. RoyC Snodgrais, page 5 (v-484)

maynot be improved or repaired by expenditures from the road anabridge runa of said oounty.

In your opinion request you state that it is inequitable not to be able to spend the county road and bridge fund for streets in the City of Amarillo in Precinct #l since at least 90$ of the moneyoomesfrom said precinct. This Department is not ii~a position to give an opinion as to the dlvlslon of funds inasmuch as the sameIs left to the sound discretion of the Commlsslonera' Court. Suffice it to say that as long as the Commissioners' Court exercises its beat judgment anddo&a not act arbitrarily in regard thereto, its findings wiJ.1 not be disturbed. In this connection weare enoloalng copies of Attorney General's Opinions Ros. O-1091 and v-347., while weare in accord that your factual situtation reflects a hardship, nevertheless, an examlnatlon andreview of all the statutes. relating thereto do not infer the existence of authority.to Improve city streets not a part 0s the county road system but indicates the contrary. .If, in the future, your factual situation is such that roads are oonstpucted by the county and leaa,to the streets in question in such a mannerthat they necessarily become a part of the county mad system sufficient authority mayexist for im-. proving the streets as a part of the system. However, the duty of supplying such authority for the improvementof the streets in ydur factual situation is vestedwholly with the Legislature. ( SUMMARY
A CommlsslonersS Court maynot legally expend funds from the roadandbridge fund of a county in the improvement 0s city streets wlthln a city which do not'form a part of the caunty road system or conneotlng links in a county road. Yours very truly APPROVRD:

F&T ASSISTANT A- WRERAL BW:mv -encl. ATTORREP OBlt?XUL OF TEXAS

Burnell Waldrep Assietant