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                               December 16, 1949

     Bon. Waggoner Cam                   opinion   Ro. v-
     county Attorney
     Lubbock County                      Re: Authority o? the-Cou
     Lubbock, Terea                          ty to use road bond
                                             proceeds to buy rlghts-
                                             or way within a city
                                             and to pay condemn&Ion
                                             avnrds against the city
                                             for rights-o? -way on
                                             streets  formIng oonnect-
                                             ing links on State hlgh-
     Dear Mr. cnrr:                          rsys .
                Your request    for   an opinion   Is substentielly
     88 ?0110vs:
                 On the 5th dey of November 1945, the
          Lubbock County Commissioners I Court enter-
          ed ita order agreeing with the Texas Highway
          Department to furnish rights-of-veg       for cer-
          teIn highways.     During 1945 the city of Lub-
          book voted a city-wide     bond eleotioa   which
          Included money to be used for scouring the
          city’s   pert of the right-of-way    vlthln the
          corporate limits.      The city has oontlnuously
          secured Its right-of-way      within the corpor-
          ate lImIta to the limit of Its own funds on
          head.    In 1946 Lubbock County voted a countp-
          ride bond issue for highway purposes end
          thereafter   scoured a large ptirtlon of the
          right-of-way    requfred for highways deslgnat-
          ed by the Highway. De artment.      The County     .~
          haa approximately $1B1,465.18 remaining on
          hand in this bond fund.
                The City o? Lubbock has made and Is
          about to make additional  extenaiona In Its
          corporate llmita BO aa to lnolude the lands
          from vhIoh rights-o?+ey   are to be secured
          by the County and suoh needed lmnds will be
          shortly vlthln the oorporote   llmlts.
                On June 13, 1949, the Commissioners’
mu.   Waggoner Cnrr,    pegs   2   (Q-971)


      Conrt passed Its reaolutlon  authorizing  the
      obtaining of the neoerssry rights-of-way,   8
      part of vhIoh vi11 be In the City of Lubbook
      after the annexation  beoaaes effective.
                 Question 1. May the road baud fund8 or
          Lubbock county be used for the purchase or
          rlgm-or-w3y        of that pert 0s the hi   way      1
           and treffla    dispersal  system Include P within
    .,: :.the.,oorporate     limits of the City o? Lubbook?
   .- .,.,,.I
         i...
      ( .‘. i.: Question 2. In the event the City of
      .-,,:.:&ubbook,18 requl+ed to file oondemnatlon
.,. :.:iA~,,~~~dlngs      on land irlthin the aorporate
‘, ‘* ..limltr,      my the oounty by re.aaon of Its oon-
        , t?aot   vlth the State Hlghvsy Department in
          a’oopexwtion with the City of Lubbock use
           suoh funds to pay for the land eotuallg      tak-
          en end demeges worded by the speolel oom-
          missioners     or awarded by judgment on eppesl
           to the county court?
           As 6 generel proposltion    of low It Is settled
that the control   end jurisdiction  ovep streets    of 8 mu-
ulcIpellty   nrs exclusive  In thet city or town. However,
the courts hove held that the oountg hes the right to
expend funds in the Improvement of streets within the
oorporete  limits of a olty when sold streets     forks 8 pert
of the county road system, or 8 oonnectlng link In Stete




            In Attorney    Geae~el Opinion Bo.O-7465, doted
Hovember 8, 1946, it      van raid:
            0        A aounty any not purohsse    loud
      in an &o&orated        olty for highrep purposes
      if such purohese ooufllots      vlth the jurisdlo-
      tion’oi   the aunlolprllty;    however, It is our
      opinion Lt the oity approves, consents to,
      acquiesces    or oooperates in the purchase, then
      the oounty may pmhsse       the lend for suoh pur-
      pose.    This vlev is not inaonslstent     vlth the
      ;i;Ing    thet the county meg not oondemn such
             . The pover of condemnetlon,     If present
.



    Hon. Yaggoner        Csrr,   page 3   (V-971)


         4n the ooullty, TOUld be them reg~rbless
          o? oouaeut o~..,sp~rovsl of the olty.        Swh
          power would oooillot    with the-jurlrdlotion
          of the o%ty ‘over itr,stmets~      theroiore,
          nnder .eple authority there Is no such luth-
       , ority. in the oounty.     But thera IS power to
          parahrae with the approval or oonsent or the..
          01ty.m
                :. ? .’
               The above opinioa psrt:oularly    emphsslsea the
    irat thSt the oounty has the Dower to Durahsse such loud
    only ?oi, oounty or &t&e hi ky purpoies.         Also see:
    smith V. cath~t     226 3.u.15 P (TCU.C~V.A~P.W?O); State
                     x.874 (18 7)r Benet v. Dallas Counm26
    ~~~~~~v,A~~;l~~,~~~~~~~~iA~~*on                      v. lieelx
                     -9        . .        .   . -TS!X!,
                                                   .       error
    re..
                  : ..
               ‘~ It Ia therefore  our opinion that your first
    question     should be answered in the sffl~etlve.
              zo.,the ease or Adams v. Roulnrall county, 280
    B.W.759 (!Tex.Collpn.App.l%?b) It wss held that the County
    of Roakwall did not have thi power to ooudemn laud tar
    rood purposes within the corporate limits of the town of
    Royce.  The Court mid:
                 “There does not nppesr to be an crmblgulty
          in the language employed by the Legislsture      to
          expmss its intent as to vhrt agencies should
          exeroise~ conttiox’ ovev the highksjs withln’in-
          oorporsted   cities  and towns, OF as to the ext
          elusive nature o? that oontrol.”                   ,

                 fin the Beast v. Dal188 Co&r       Case’, supra,   the
    cola& steted:

                 %xcept la cases ooming within the scow-’
          of some general or speolal statute    In vhich
          authority   Is expressly ooniemwd,   oountles
          are without authority to lease out or oontrol
          streets   and hlghvays o? the incorporated    clt-
          Lea end tome, or to have property condemned
          for such purposes.”
               While It has been the long estebllshed  opinion
    OS this deportment that a oounty may purohnse, with the
    oousent or a olty, the right-of-wsy   for 8 hlghvey through
    an Inoorporated  cItyI nevertheless  the olty snd county
     Boa. Waggoner Cnrr,      page 4     (V-971)


     lFO r ep a r sterod distinot    jurIsdIotions    InSorOr es they
     relrte  to hlghvry n8tters,      having reporate and dlstluot
     powers and prItllmges;       aad the lwlebtedness    or one IS
     not the indebtednear of the other.          Title to property
     ooodemned by 8 olty or an ersement ts In the nsme OS the
     oity, whereor aQhts-of+rsy        purohssed by 6 oounty for
     hlghwey prrrposes sze vested in the State o?~Texss.
                  Artiole   III, Section     51 o? the Constitution
     0s TOXOS IS in pert       88 r0ii0w8:
     .*
                    “The Leglsl8tw       ah811 hove no paver to
             arks any grant ox@ruthorlse       the meking of my
             grant o? pub110 monies to any IndIvidu8l,       OS-
             aooistlon    oS~indIvIdu818,    munIoIPe1 or other
             corporations    rhetsoever.    . . .n’
                Artlole III, Section         52 of the Constitution     OS
     Texes provides In pa&:
                    “The L.egIslatum shall have no power to
             euthorlse   any county, olty, town, or other
             political   oorporatlon or subdIvIsIon  of the
             St&e to lend its credit or to grent public
             money or thing of ,valw In aid of, or to any
             IudIvIdual essoaIatlon   or oorporstlon  whstso-
             ever, ., . .”

                  This oousiItutIon%l    prohIbItIon. YOU npplied la
     the oesea of San Antonlo Inde          ent School DIstrIot v.
     Boerd of Trwtees,      2m        2d     0      I     1947
     ref. n.r.e.),    ad City oi il           ~:~&,",,~::'108  6%%
     251 (Tex.CIv.A~.l~        , error ref.).
                  In’ the ease of Galveston H.B .S.A.RY.CO.        v.
     E;td;     ~~?J;~~;~~~I~~U.~~        (Tex.CZv.App.1942,       error
C
                    "The CommissIonen~ Court o? a oounty
c            has only swh pavers as 8re sxpressly    or by
             neoessrry implloetlon   given it by the Constl-
c            tutloa   and statutes of this State.”

 c               Also see: Avt.V, ~0.18, Tex.Const.;   Hills
I    county v. ~am~ssas county, 90,Tex.603,40 s.w.~EIT~~?);
     ti.A .Nor&an nnd Bros. v. Ecissouri K.& T.R.Co., 50 Tex.420,
            . .   tr(l-    .

                  Pnsslng to the qwstfon        presented,   It will    be
        Hon.   Waggoner Cam,   pegs 5   (v-971)
                                                                       wa
    .
.


        noted thet e oounty may not oondemn property lying vlth-
        in the jurlsdlotion  of the City of Lubbock, end being
        without authority to condemn, It neoesserily   follows
        thet a county mey not peg the oondemnatlon srerds for
        the City of Lubbock.   The title  to swh property or the
        easement obtained vould be In the name of the Clty of
        Lubbock; end our State Constitution,   es set out ebove
        end es interpzwted by the oases olted, prohibits    the of-
        ficers of the oounty from peylag over proceeds of a bond
        Issue to e munIoIpel corporation.    In the ebsenoe of euth-
        ority pe$mIttIng the seme to be done, we are of the opln-
        Ion that the County of Lubbook would not be authorized to
        pay the oondemnetlon sv8rds egalnst the City of Lubbock.


                     A CommIssIonersl Court 0s s oounty may
               expend oounty road bond funds La the Improve-
               ment of city streets forming 8 pert 0s the
               county rood system or (I aonnectlng link In a
               stete highvey with the consent of the city
               end mop purchese lends for rights-of-vey    for
               St&e highways within the city If the oity
               couaents~end~ epproves.    Bwhes v. County Com-
               mIssioners~ Court of Harris County, 35 3 .W.
                d 618 (Tex.CIv.App.1931)’   City of Breoken-
                                  County ‘120 T    318 40 s.
                                   G.Opinfon O-7%6, d&ed

                     Inasmuch as e county may not condemn lend
               vlthtn en Lucorporeted city,    a oounty mey not
               pay the oondemnatlou award for 8 city on pro-
               perty obtained by the olty by oondemnetlon for
               rights-of -way purposes.   Such payment would be
               In violetion  of the Constitution.    Tex.Const.,
               Art.111, Secs.51 end 52; Benet v. Dellaa Coun-
               ~~~~.sl;~~~~l~T~~~~:;l~~~l~~:~~~~e~cfo~~.
               APP-1926) -
                                                  Yours very truly,
