Hon. Pat Beene
County Attorney
Andrews, Texas
Dear Sir:                    Opinion NO. 0-6146
                             Re:  Whether the Commissioners
                                  Court of Andrews County
                                  has the legal authority
                                  to spend county funds on
                                  street Improvements of an
                                  lncorpoarated town under
                                  the facts stated.
         Your letter of recent date requesting the opinion
of this department on the questions stated thereln, is, in
part, as follows :
         f,. . .I present'a question, which has refer-
    ence to the right of the CouxnLsaioners'Court to
    spend money on the streets of an Incorporated town,
    such expenditures to be in the form of paving sev-
    eral blocks of a street which Is not an integral
    part of a road system or highway system, and with-
    out the help of, but with the approval of the city
    counsel, and such city has a populatlon of 800 to
    1200, it has grown some lately, and it is lmpossl-
    ble to make an accurate estFmate.
        "They also desire to pave all of the streets
   around the Courthouse (more than their one-half of
   such street).
        "I am of the opinion that they are without
   authority to spend county funds for,such Fmprove-
   ments. I quote 40 S. W. (26) page 43, City of
   Breckenridge V. Stephens. They Bo not say so in
   so many words, but leave the lmpresslon that unless
   such street forms part of the road system of the
   county then they are without authority. The case
   of Gabbert vs. City of Brownwoood found in 176 S.W.
   (26) P. 347, also says as much.
            It Is stated in our opinion   No.   O-1190:
Hon. Pat Beene, page 2        o-6146


         "As a general proposltion of law, it is
    settled that the control and jurisdiction over
    streets of a municipal corporation is exClusive
  ' in said corporation. However, the courts have
    construed to the counties the right to expend
    funds in the improvement of streets within the
    corporate limits of the city when said strsets
   were also a public road, particularly when done
   with the consent of the city. See Hughes vs.
    County Commissioners Court of Harris County, 35
    s. w. (2d) 818. This same conclusion was reached
    by the Supreme Court in the case of the City of
   Breckenridge vs. Stephens County, 40 S. W. (26)
    43, wherein the court said:
         'The Commissioners Court may expend County
    road bond funds for improvement of city streets
    forming part of county roads where made with
    city's consent.'
        "The general underlying theory being that
   such improvement must be confined to streets
   forming part of a county road system and also
   that the county must have the consent of a
   municipal corporation within which said streets
   may be located. The Supreme Court in the
   Breckenrldge case, above cited, distinguished
   between streets forming a part of a county road
   system and streets generally within the city.
   In that case the Court held that the Commission-
   ers Court could bind itself to expend county
   road bond funds to aid the City of Breckenridge
   in improving 'streets forming part of county
   roads', and in the case held that the county
   could not bind itself to ald the City of Brecken-
   ridge in improving streets. It is obvious that
   they intended to draw a distlnction between
   streets, speaking generally of the arteries of
   traffic within a municipality, and such streets
   as form a continuation of the county road, but
   in any event a street which had been designated
   by thencounty~aspa part of its system. . .'
         In this State, it is well settled, as a general
propositionof, law,,that the,Commissioners Courtis a court
of limited power and ,jurisdiction,and has no powers or
duties except'those which~are clearly set forth and defined
in the Constitutionand statutes, and those powers that
arise by necessary implication. The authorities supporting
Eon. Pat Beene, page 3                 o-6146


this general statement are so numerous, we do not deem it
necessary to cite any of them.
           In view of the foregoing authorities, you are
respectfully advisedthat it is our oplnlon that the Com-
missloners   Court has no legal authority to expend county
funds to pave the streets of the town or city lnquired
about where such streets do not constitute a part of the
county road system.
            Article    1082, Verno+s    Annotated Civil Statutes,
provides In part:
         "The City Council shall be invested with full
    power and authority to grade, gravel, repair, pave
    or otherwise improve any avenue, street or alley,
    or any portion thereof, within the limits ~of said
    city, whenever, by a vote of two-thirds of the
    aldermen present, they may deem such improvements
    for the public interest; provided, the city council
    pay one-third and the owners of the property two-
    thirds thereof, except at the Intersection of street,
    from lot to lot, across the street either way shall
    be paid for by the city alone......"
         With reference to your question regarding the paving
of all the streets around the courthouse and the payment for
such Improvement, you are advised that It is our opinion that
in virtue of Article 1082, the County being the owner of the
courthouse property, would, under this Article, have author-
ity to defray its proportionate part of cost of street im-
provements. It is our further opinion that the Commissioners
Court has the legal authority to pave and pay for any portion
of the streets around the courthouse where such streets
constitute a part of the county road system, whether such
streets are a part of the COUrthOUSe property or are owned by
others than the County.
                                        Yours very truly
AW:rt:wc                               ATTORNEYGENERAL    OF TEXAS
APPROVED NOV. 13, 1944.
 s/Grover    Sellers                    By   8A   Ardell WilllamS
ATTORNEYGENERAL OF TEXAS                          Ardell Wllllams
                                                         Assistant
Approved Opinion Committee
by s/BWB Chairman
