The Honorable Joe Resweber                           Opinion   No.   H-   547
County Attorney
Harris County Courthouse                             Re:   Whether a county may
Houston,  Texas 77002                                regulate  the placement of
                                                     portable signs on the right
                                                     of way of state and county
                                                     roads.

Dear Mr.   Resweber:

        You have inquired about the authority of a county to regulate the
placement of portable signs on the right of way of state and county roads
in both incorporated and unincorporated  areas.

         Article   2351, V. T. C. S., confers upon the commissioners        court
of a county general authority over that county’s roads.          But other statutes
limit this power.      Article 1016, V. T. C. S., grants to “[a]ny city or town
incorporated     under the general laws of this State . . . the exclusive
control and power over the streets        . . . of the . . . town, and to abate
and remove encroachments          or obstructions   thereon.  . . . ” (Emphasis
added).    Section 16 of article 1175, V. T. C. S., declares     that home rule
cities have “exclusive       dominion,  control and jurisdiction    in, over and
under the public streets,      avenues.   . . .‘I (Emphasis added).      Section
24 of that same statute grants to a home rule city the authority “[t]o
license,   regulate,   control or prohibit the erection of signs or bill boards
as may be provided by charter or ordinance.”

        We believe it is clear that the commissioners      court may regulate
the placement of signs on the right of way of county roads in all un-
incorporated   areas.   This conclusion is implicit in those decisions  and
opinions cited, infra, which discuss the authority of a county over roads
located in incorporated    areas.   It also follows from article 6703, V. T. C. S.,




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The Honorable      Joe Resweber    page 2         (H- 547)




which authorizes     the commissioners    court    to control    streets   and alleys
in cities   and towns which have no “de facto”       municipal    governments.

          But such blanket authority to regulate must necessarily       be limited
to unincorporated     areas,  In City of Breckenridge    v. Stephens County, 40
S. W. 2d 43 (Tex. Sup. 1931), the Supreme Court held that the county com-
missioners    court may improve city streets where such streets form integral
parts of county roads or state highways and where such improvements             are
made without conflicting with the jurisdiction     of the municipality,    or with
its consent or approval,     The Court, quoting the early case of State v, Jones,
18 Tex. 874 (1857), explained that the phrase “without conflicting with the
jurisdiction   of the municipality”   referred to a situation in which a city
has totally failed to exercise    its power to lay out and regulate roads.
Where the city has acted, the county must yield.

        A previous Attorney General Opinion,       M-561 (1970), reached the
same basic result in slightly different terms.      “Where there are incorporated
areas within a given county, the streets within the city are generally      subject
to city control. ” If the street forms a connecting link in the county road
or state highway system,     however,   the county commissioners    court may
maintain it, provided    the city has expressly   or impliedly consented to such
work.   We interpret this “implied consent” to be functionally     equivalent to
the “no conflicting jurisdiction”   test approved in Breckenridge,    sz

         In incorporated    areas,  then, the county may regulate the placement
of signs on county roads’ rights of way only with the consent of the particular
incorporated    area.     Consent may be express       or implied,  and the test for
implied consent is whether the incorporated          area has itself acted to regulate
such signs.     Whether either type of consent exists in a particular        instance
requires   a factual determination.      It is sufficient here to say that consent
is a prerequisite     to county regulation.

         The State has authority to control the State highways.     V. T. C. S.,
art. 6663,   et seq. ; Nairn v. Bean, 48 S. W. 2d 584 (Tex. Sup. 1932);
Britton v. Smith, 82 S. W. 2d 1065 (Tex. Civ. App. --Waco       1935, no writ).
The county may perform certain functions in regard to control of State
highways including the placement of signs,     to the extent that their activities
are not in conflict with the policy of the State Highway Department.      -See
V. T. C. S., art. 6701d-11, 4 5 11 and 13.



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    The Honorable   Joe Resweber       page 3          (H- 547)




                                     SUMMARY

                        A county may regulate the placement of
                    portable signs on the right of way of state and
                    county roads in unincorporated      areas of the
                    county; it may regulate the placement of such
                    signs in the incorporated    areas of the county
                    only with the consent,    express   or implied,  of
                    the particular  incorporated    area.


                        A county may place portable sigrs on the
                    right of way of state roads if this is not in
                    conflict with the policy of the State Highway
                    Department.


                                                             Very   truly yours,




                                                             Attorney   General    of Texas
    APPROVED:




    DAVID   M.   KENDALL,    First   Assistant




    C. ROBERT HEATH,        Chairman
    Opinion Committee




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