         Tmx       A-rroxa~~Y            GENERAL
                        OF     TEXAS
                        Au-       il.-

                              January 24, 1948


Hon. Roy C. Snodgrass              0p1Ill0n no. v-484
County Attorney
potter county                     Re:    Authority of Commisslon-
Amarillo,  Texas                         ers Court of Potter
                                         County to expend money
                                         fromtheRoad&Brldge
                                         Fund to 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 Fund oft Potter County in the improvement 'of cer-
tain streets   in the City of Amarillo is sulmtsntial&y   a8
fol~lows:
             "The Conmiissloiers Court.desirea   to know
      whether or hot they aan legally      expend moxiey
      froa~.the road and briiie   fund~on ~cdrtaln streets
      within the City of eil&o       and I am aending you
      under aeparatti ccver a map which inoludea     the
      greater portion of Potter County, Texas, and
      shows all. county roads and olty streets and
      which map has marked on 1% the road8 desired
      tb be improved.
                                .
             "The roads to be iinproved are:
             "At the Qlemiood School,
             24th Street from Cleveland to Miwor,
             Mirror Street from24th   to 25th,    I
             25th Stre~et Srom .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 Morrow School,
              16th Avenue from Arthur to Houston.
            “The tentetive,agreement  Is as follows:
     The City of Amarillo will pay for the excavat-
     ing atid grading of the roads.    The school dis-
     tricts   will pay for the topping of the roads.
     The property owners will pay for the curb and
     gutter work and the County will pey for the
     calliche   and for putting it on the ground.
             “We would like to point out some addi-         .
     tlonel     facts:
             “(1)     Thst all of this work Is to be
     done in Precinct #l and be,tter than gC$ of
      the road and bridge fund Is made up from
     automobile license fees paid by residents
      of Precinct #L
             “(2)     Thet better.tban  gC$ of the peo-
     ple of Potter County reside in Precinct #l.
             “(3.)    That.the road improvements to be
    -,done are eround,and fitiai,thr.ee achools~and
     that’ students of these schools in some 3n-
      sjx.ncix come from other preolncts~-and during
     the winter months, the roads not beinghisrd~
     tkrfaced creates an -bearable          sltuati6n.~
             "(4)    Numerous people in the City of ~.
     Imarillo      have polnted out to the ~Comm.lssioIi-
     era 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 money in
     making up the fund comes from, except on.
     main a.rteries through the city whlch~ oonnect
     with Foads Coming into'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 ques-
    tion .of whether or not the county road and
    bridge fund can be spent oti th6 Greet& enum-
    erated and set out above and designated on
    the map furnished 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 Road and Bridge Funds
  Hon. Roy C. Snodgrass,       page j     (V-484)
                                             ,

 may be 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, 40 S. W. (24) 43, and
 Hughes v. County Commissioners Court of Harris County,
 35 s. w. (26) 818.    The question now presented is wheth-
 er the ConrPiasloners Court of Potter County has 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 assumed from your factual
 sltuatlon,   aa well as the map attached 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,   182 S; W.
 29, the court held that a stre6t geperelly-metis    si pasa-
 ageway within the bocuids of 8 municipal corporation,
 while a road means a county highway forming a emoa-
 tion between the alty limits of one oity or town and
 the city limits of another city or town: and tmile a
 ~street is a himay   iti LS not +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~ea68 follows:.
              "'In i8gl this~.same ~questionwas~.8gain
       presented :in B mf00avi..@onsaleS             County,
       79 Tex. 218,.1 & s..~Y.,lO57;         1058, 'wherein
       the Su~eme~CoUrt d@olaxe$ that the.adm+.
      miasiotieral.oourt        was without juriatictlon
      tq opehup a road. through ~lana iitbin               th8   ..
      .oorporate     lhltp     of the olty of aoliaa.
       mat the wora.juri.saicti~            wag used :aa- I
       v$aedly Sa shown by t$~'holalnga             that.*.,;
       prooeedings~~were without effect and in:
       oapable of ra$.~floation,          even aiter the
       exclusion     of the psrtioular        aeotion of-, :.
       the road from the olty ,liri$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 Abe valldate&bg
      ratification.        -.The.declsion     in Borw+v,.
      Oonzalea County, aupra, has~so far as we.
       know, x&eve? been:overruled          and has been
       followed    in the following        oases:    Benat
Hon. Roy C. Snodgrass,      page 4    (v-484)


        v. Dall.as County, Tex. Clv. App., 266 S.
        W. 539, writ refused,     Rueter v. State,
        43 Tex. Cr. R. 572, 67 S. W. 505; Blultt
        v. State, 56 Tex. Cr. R. 525, 121 S. W.
        168, dissenting    0 lnlon; cowana v. State,
        83 Tex.~Cr. R. 29f; , 202 s. W. 961; City
        of Breckenrldge v. Stephens County, Tex.
        Clv. App., 26 S. W. 24 405.       It la true
        that the last mentldned case (by this
        court) was reversed by the Supreme Court,
        but that in so doing that cburt ala not
        overrule the Noruooa caSe is clearly
        shown by the following     quotation from
        the opinion:     'Of course, the town or
        city governing board primarily has para-
        mount jurlsalctlon    of the streets and
        highways thereof,    and the commlssloners~
        court would have no authority 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,  pro-
vides    with reference    to Comndssioners~Court that:
               1,      said court shall assume and
        have c&&l       0s the streets  aad alleys In
        all cities    and Incorporated  towns in Texas
        which have no defacto municipal government
        in the active discharge 0s their 0rritai
        duties.'!
            The aeclalons   of the Texas courts have repeeit-
ealy held that the Commlssloners~ Court is a court of
limited jurlsdi&+lon     and has only such powers aa are con-
ferred upon it by the statute!     and Conatltutlon of this
State, either by expressed terms or by neoessary lmpll-
cation.   Section 18 of ArtiOle V, of the Texas Constltu-
tion, Article   2351, V. C. S.; Vbn Rosenberg v. Lovett,
173 S. W. 508; Galveston H. 6s S. A. Ry. Co. v. Uvalde
County, 167 S. W. (26) 1084; 11 Tex.,Jur.      564.
           By virtue of the fact that the jurisdiction    of
city streets 1s vestea~ exclusive1    in the City Qovern-
ment and in the absence of author 1 ty granting to Commle-
aloners'  Courts authority  over st.reets in Said cities,
1t.i.s the opinion of this Department that those streets
in Amsrlllo whloh a0 not form an integral    part 0s the
county road system or connecting llhks ln oounty rqaas,
Hon. Roy C    Snodgrais,   page 5   (v-484)


may not be improved or repaired by expenditures           from
the road ana bridge 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 Pre-
cinct #l since at least 90$ of the money oomes from said
precinct.    This Department is not ii~ a position      to give
an opinion as to the dlvlslon       of funds inasmuch as the
same Is left to the sound discretion        of the Commlsslon-
era' Court.    Suffice   it to say that as long as the Com-
missioners'   Court exercises    its beat judgment and do&a
not act arbitrarily     in regard thereto,    its findings wiJ.1
not be disturbed.      In this connection we are enoloalng
copies of Attorney General's       Opinions Ros. O-1091 and
v-347.,
           while we are in accord that your factual sit-
utation reflects   a hardship, nevertheless,        an examlna-
tlon and review 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 indi-
cates 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
manner that they necessarily     become a part of the coun-
ty mad system sufficient      authority may exist for im-.
proving the streets as a part of the system.           However,
the duty of supplying such authority for the improve-
ment of the streets   in ydur factual      situation   is vest-
ed wholly with the Legislature.         (
                           SUMMARY
            A CommlsslonersS Court may not legally
      expend funds from the road and bridge 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:                           ATTORREP   OBlt?XUL   OF TEXAS



F&T   ASSISTANT
A-        WRERAL                        Burnell   Waldrep
BW:mv-encl.                             Assietant
