         TIBEATTOFCNEYGENEEAL
                  Q,F TEXAS




Hon. Ronald D. Stephens    Opinion No. C- 77
County Attorney
Young County               Re:     Highways over which the
Graham, Texas                      authority of the Commis-
                                   sioners Court extends
                                   under the terms of Arti-
Dear Mr. Stephens:                 cle 827a, Sec. 2, V.P.C.
    You have requested our opinion on the following matter:
          "Under the terms of Article 827a, Section
     2, Penal Code of Texas, over what roads would
     the authority of the Commissioners extend?
         "In other words, since the authority covers
    highways of the County other than State Highways,
    what are these highways of th C    t that exist
    other than State Highways? Wkl??h?s    Include
    all county maintained public roads?" (Rmphasis
    yours)
     Section 2 of Article 827a, Vernon's Penal Code, prohibits
the movement of overweight or oversize vehicles on "any high-
way" state or county:
            I .... provided, however, that the Commis-
     sioners Courts through the County Judges of the
     several counties of this State shall have and
     are hereby granted authority to rant permits
     limited to periods of ninety (907 days or less
     for the transportation over highways of their
     respective counties other than State Highways,
     overweight or oversize or overlength commodities
     as cannot be reasonably dismantled, or for the
     operation over such highways of superheavy or
     oversize    equipment for the transportation of
     such oversize or overweight or overlength com-
     modities as cannot be reasonably dismantled,
     and the said County Judges shall have and are
     hereby granted said authority Independently of
     said Commissioners Courts until such time as
     said Courts shall have acted with respect thereto.
     'SaidCommissioners Courts, in their discretion,

                            -375
Hon. Ronald D. Stephens, Page 2    (C-77 )


     may require a bond to be executed by an
     applicant in such amount as will guarantee
     the payment of any damages which any road
     or bridge traversed or crossed may sustain
     in conse uence of the transportation afore-
     said.” ?Rmphasls ours).
     Under Article 11, Sections 1 and 2, and Article 16, ZJec-
tlon 24 of the Constitution, public roads and highways belong
to the State. Counties can exercise such authority over roads
as is expressly granted or delegated to them b the Leglsla-
ture. Robbins v. Limestone County, 114 Tex. 3.t5, 268 S. w.
915 1925); Gulf Bitullthic Company v. Nueces County, 297 S.W.
747 tTex.Clvil                                        S.W.2d
305, Comm.App. 1928).
     The term *county roads" means a public way for normal
means of travel within a county under county supervision and
control and such road may or .may not be paved. Burke v.
Thomas, 285 S.W.2d 315 (Tex.Clv.App. 1956, error ref.n.r.e.).
     The State,exercises ,itsprimary jurisdiction over roads
and highways through the State Highway Commission, Article
6663, et seq., Vernon’s Civil Statutes, and the State Highway
Commission has the right “to .take over and maintain" roads
which then become State highways freeing the counties from any
“cost, exwense or suwervlsion”, Article 6673, Vernon’s civil
Statutes .-
     It Is the purpose of Article 827a of the Penal Code to
regulate the operation of all vehicles on all roads whether
state or county. Article 827a, Section 3 provides for weight
and size of all vehicles, and
                           . .movement
                                    .. .of vehicles in excess
of the dimensions prescriiieais pronlbltea, except under a
special permit, Issued by counties under Section 2 of Article
827a, Penal Code, or by the State under Article 6701a, Vernon's
Civil Statutes. Article 6701a covers the movement of such ve-
hicles on roads which are a part of the State highway system
under State Highway Commission jurisdiction. Section 2 of
Article 827a, Penal Code, covers all other roads under county
jurisdiction.
     In addition to the designated so-called State Highways,
the State Highway Commission is authorized to designate cer-
tain additional roads as Farm-to-Market and Ranch-to-Market
roads and these become a part of the State Highway system,
as much as the so-called State Highways. Counties have no
responsibility with reference to them. Article 6673, Vernon's
Civil Statutes.

                           -376-
-   -




        Hon. Ronald D. Stephens;~Page ‘3 ~(C!-7a,::,$A ‘:‘   ‘~~r : ,CY~:


             In controlllng.the mo*emi?ntoftoverweightand,~,overslze,
        equipment the Act gives the Sta%Highway   Comm~sslondontrol
        of traffic "over or upon any State Highway or any,road%that
        has been classified by the Highway Commission and shown by
        the records of the Commission as a Farm-to-Market or Ranch-
        to-Market road under the jurisdiction of the State Highway
        Commission." Article 827a, Section 53, Vernon's Penal Code.
        This same section further'provides:
                  "The Commissioners Court of any,county
             shall have .the same power and authority .;. ...
             over or upon any county.road; bridge,or cul-
             vert that'18 given by 'this,,
                                         Act to.~the:'State
             Highway Commission with :respeCt.to~'State. .:
             highways and~State Farm-to-Market and Ranch-
             to-Market roads;" :
              Thus it is clear that In ,orderto move any overweight or
        oversize vehicle over any.road or highway in this State, it
        is necessary to obtain the special permit provided in Article
        6701a, Vernon's Civil Statutes, from the State Highway Depart-
        ment for such movements up.ona State highway or a Farm-to-
        Market or Ranch-to-Market road so designated by the State High-
        way Commission, and lf~such traffic moves within a county upon
        other public waynor    normal means of travel under county su-
        pervision and control th    It Is necessary to obtain also the
        special permit provided T: Article 827a, Section 2, from:the
        county.
             This Is not Interpreted to mean that th.ereIs any concur-
        rent or conflicting permit jurisdlctionof'the State and county
        over such roads. The State through the State Highway Commis-
        sion has exclusive jurisdiction to Issue special permits 'upon
        State highways, Farm-to-Market and Ranch-to-Market roads, so
        designated by the State Highway Commission. The County Com-
        missioners Courts have exclusive jur,isdlctlon.toissue special
        permits upon all other roads within the’count~ not so desig-
        nated. This jurisdiction is granted by the express terms of
        Article 827a, Section 53.
             It would appear there is no question of a conflict as far
        as the State Highway Commission Is concerned since its published
        "Policy on Permits" provides, p. 35:  "We are not authorized
        to show on any permit a route over which we do not have jurls-
        diction such as-a county road."
             If the Commissioners Court of any county has failed to
        act as provided In 827a, Section 53, then Section 2 provides


                                       -3?7-
the County Judge shall exerclse:the power granted in Section
5* "until such time as said Courts shall hape acted with res-
pect thereto."
                    SUM,MAkY.
         The authority of the County Commissioners
    Courts or County Judges to issue special permits
    for overweight and oversized vehicles Is limited
    to roads within the county which~have not been
    marked or designated by the State Highway Com@s-
    slon as either S,tateHighways, State Farm-to-
    Market road.s,State Ranch-to-M+r&et roads, or
    other State Highway deslgnatidn.
                                                     ,'
                           Yours~~verytruly,
                           WAWONER,Cw
                           Attorney General of Texas




SSP:nss
APPROVED:
OPINION COMMITTEE
W. V. Qeppert, Chairman
Pat Bailey
Howard Fender
Edward Moffett
James U. Strock
APPROVXD FOR THE ATTORNEY GENERAL
BY: Stanton Stone




                            -378-
