Eonoreble Ft. C. Id&lain
District Attorney
Conroe, Texas

Daer Sir:                         Opinion Number O-1190
                                  Rer Authority to expend moneys derived
                                  fr+s sale of road bonds In paring
                                  streets of en incorporated oity where
                                  the streets so paved are not a part of
                                  the county road system.

        We ers in receipt of your letter of Dsoember 8, in which you rs-
quest our opinion on the following question?.

"Cw moneys derived from the sale of bonds that may be euthorieed to bs
sold under end in conformity with said Article 752e legally be used for
the purpose of paving the streets of ths City of Conroe ~dwrs the streets
so pevsd ers not segmentsor parts of roads or highweys extending through
the city?"

        The facts underlying your problsm ars briefly es followsr An
election has been ordered whereat the proposition of the issunece of
$2,OOO,OCO of road bonds is to be suhnitted to the qualified property
taxpaying voters of Commissioners t Prscinct.$2, and that said bonds are
to be issued in accordance with Article 752a.of the Revised Civil Stet-
utes of 1925, end for the purpose stated therein, namely -- "For the
purpose of the construction, maintenance end operation of macedamieed,
graveled or peved roads end turnpikes, or in add thereof.' Further, that
said Ccnmnis~sioners'
                    Precinct @ includes within its limits the.City of
Conroe, a municipal corporation duly and prdperly incorporated; that there
are tuu public roads or highways extending through the corporate limits of
seid city, to-itit,Highmay $75, which is a pared street through the city,
and Eighty =$105,which is not paved. You state also that it is the declar-
ed purpose that the proceeds from the sale of such bonds as may begauthorized
at the above cited election are to be used for paving or hardsul'facinga
great many streets within the city limits of Conroe that are not any pert of
the highxys to be improved in the road district.

        You refer to the fact that Highmy $75 and Highmy $105 traverse the
corpomte liTits of the CitiJof Conroe. If said highTraysare a part of the
State design&x? highway system, we ars of the opinion that the county or.
district muld te preciuded frommakirg sny improvement on either of said
two highnays. See Section 3 of House Eil1#%0%, passed by the 46th Legis-
lature, Regular Session, 1939. The pertinent part of said section being:
Hon. 5.   C. GClain,   pgs   Z (o-1190)



"All further imprcvemenw of said State highnay system shall be madeunder the
exclusive and direct 3ontrcl of the State Highmay Department, end with appropri-
ation made by the Legislature out of the State Bighway Fund."

                Further, said section providesr

"Kc further improvements of said system shall be made with the aid of or with
any conoys furnished by the countiee except the acquisition of rights-of-way
which may be furnished by the counties, their subdivisions or defined road
districts."

               As e general proposition of law it is settled that the control
end jurisdiction over streets of a municipal corporntion is exclusive in said
corporation. Boxever, the courts have construed to the counties the right to
expend fends in the improvement of streets within the corporate limits of e
city nhen said streets were also e oublic road, particularly when done with
the consent of the city. See Hughes vso County Commissioners' Court of %rris
county,  35 S.?T* (24 818. This same conclusion was reached by the Supreme
Court in the case of the City of Breckenridge vso Stephens County, 40 S.li;(2d)
43 , wherein the court said;

"The commissioners' court may expend county rbad bond funds for improvement
sf city atree,tsforming pert of the county roads where made with city's~
consent."

              Tne general underlying theory bein,
                                                7 that such improvements must
he sonfinsd to streets forming part of a county road system end also that the
co3;ilt.y
       must have the consent of a municipal corporation withinwhich said
stres~tsmay 3e looatad. The Supreme Court in the Breckenridge case, above
ci%ed, distinguished between streets forming a pert of a county road system
and streets generally witbin the city. In that case the court held that the
commissioners' court,could bind itself to expend county roadbond funds to
aid the city of Breokenridge in improving "streets forming a part of county
roads," and in the 'samecase held that the.countv could not bind itself to
aid the City of Breckenridge in improving 'streets." It is obvious that they
intended to draw a distinction between streets, speaking generally of the
arteries of traffis within a municipality, end such streets es form n contin-
uaticn of a count;rroad, but in any event a street which had b-seen
                                                                  designated
by the county as 8 pert of its system. It will be noted that the cases above
cite<, and from whish we quote, have particular reference to the proceeds of
road bonds of a counQr. 'P'&find no cases involving the expenditure of pro-
ceeds from bonds issued by a read district. However, in our opinion, the law-s
ap;?licebletp the county are 1iker:iseapplicable to the district.

              you'are thorefor advised that in our opinion the coun0~ is rrithout
au~thorityto pave .thestreets of the City of Conroe where such streets do not con-
stitute a pert of the county road syctem.

                                                     Very truly yours,

                                                  ATTCWEY GEDBBAL OF TBXAS
                                                  By/s/ Clarence E..Crone
                                                              Assistant
