Honorable Joe Resweber        Opinion No. WW-377
County Attorney
Harris County                Re:   Authority of a county to
County Courthouse                  enter into::,an
                                                 agreement
Houston 2, Texas                   with an incorporated city
                                   for the payment by the
                                   county of awards and judg-
                                   ments in condemnation suits
                                   instituted by the city for
                                   the acquisition of right-
                                   of-way for public roads;
                                   and the authority for the
                                   expenditure of county road
                                   bond funds for the con-
                                   struction of public roads
Dear Mr. Resweber:                 within said city.
          You have recently requested the opinion of this office
in answer to the following questions concerning the proposed
extension of an existing county road of Harris County into an
incorporated city to connect with another county road running
through the city:
                    "1. May the County enter Into
          an agreement with the City by which con-
          demnation suits to acquire the necessary
          right-of-way are brought in the name of
          the city and the amount of the condemna-
          tion award or judgment is to be paid by
          the County?
                    "2. Assuming that the County
          or City has acquired title to the right-
          of-way necessary for such an extension,
          may the County expend county road bond
          funds for the construction of the road?"
          In Attorney General's Opinion V-971 (1949) It was
stated:
                    "While It has been the long
          established oplnhon of this department
Honorable Joe Resweber, Page 2   (w-377   1

         that a county may purchase, with
         the consent of a city, the right-of-
         way for a highway through an incorpo-
         rated city, nevertheless the city and
         county are separate and distinct juris-
         dictions insofar as they relate to high-
         way matters, having separate and distinct
         powers and privileges; and the lndebted-
         ness of one is not the indebtedness of
         the other. Title to property condemned
         by a city or an easement Is in the name
         of the city, whereas rights-of-way pur-
         chased by a county for highway purposes
         are vested in the State of Texas.


                    "A Commissioners' Court of
          a county may expend county road bond
          funds in the improvement of city streets
          forming a part of the county road system
          or a connecting link in a state highway
          with the consent of the city and may
          purchase lands for rights-of-way if the
          city consents and approves. Hughes v.
          County Commissioners' Court of Harris
          ~C?Z,"~~'~~eZ&~T~,X~        FvSt.$Lns
          County, 120 Tex. 318, 40 S W 2d 43 (1931);
          AG Opinion O-7465, dated November 8, 1946.
                    "Inasmuch as a county may not
          condemn land within an Incorporated city,
          a county may not pay the condemnation
          award for a city on property obtained by
          the city by condemnation for rlghts-of-
          way purposes. Such payment would be in
          violation of the Constitution. Tex.
          Const., Art. III, Sets. 51 and 52; Benat
          V. Dallas County, 266 S.W. 540 (Texx.
          App. 1924 error ref.); Adams v. Rockwell
          County, 260 S.W. 759 (Tex. Comm. App. 1926)."
          House Bill 77, Acts of the 54th Legislature, 1955,
Chapter 423, page 1128, codified in Vernon's as Article 6674-n,
Vernon's Civil Statutes, authorized the county to condemn
rights;of-way in the name of the State in an Incorporated city.
          In Attorney&eneral's Opinion WW-240 (1957) it was
held that a county has the authority to expend county road
bond funds for the payment to the city for the acquisition of
rights-of-way for the county within the corporate limits of an
..   .-




          Honorable Joe Resweber, Page 3   (w-377)

          incorporated city where the property in question forms inte-
          gral parts of county roads or State Highways under the facts
          submitted as follows:
                              "The Comhissioners    Court of
                    Bexar County on July 9, 1952, entered into
                    an agreement with the Highway Department
                    whereby the Commissioners' Court of Bexar
                    County agreed to obtain certain rights-of-
                    way for the construction of a State Highway
                    under the provisions of Article 6674-n,
                    Revised Civil Statutes of Texas, 1925, as
                    amended. Prior to the acquisition of the
                    property in question and on September 25,
                    1952, the City qc;'8San Antonio annexed the
                    territory wherein the property is located.
                    Thereafter, the County of Bexar and th,eCity
                    of San Antonio apQ&,r.edcd@tti
                                                 ,:an.!agreemgntL:,;
                    whereby the City of San Antonio would acquire
                    such property and the Commissioners" Court of
                    Bexar County agreed to compensate the City of
                    San Antonio for its sei?vice,s up to the sum of
                    $35,000.00, which had been set aside by the
                    County for that purpose. The City of San
                    Antonio acquired the property in question and
                    has now filed a claim with the Commissioners'
                    Court for the sum of $33,500.00. The City
                    of San Antonio acquired the property by con-
                    demnation proceedings and had to pay in excess
                    of the sum of $33,500.00 for its acquisition."
                    Under the facts submitted in Attorney General's
          Opinion No. WW-240, the County agreed to reimburse the City
          for the City's expenses Incurred in the acquisition of certain
          property and agreed to pay the City not to exceed a sum cer-
          tain.' Under the facts submitted In this request, however, the
          County will agree to pay the judgment entered In condemnation
          suits against the City. The City will condemn the rights-of-
          way, and the judgment entered In such suits will be against
          the City, rather than the County. It is pointed out in Attorney
          General's Opinion V-971 that the Indebtedness of a city and
          a judgment against the city cannot legally be paid by the county.
          Therefore, you are advised that the County may not enter into
          an agreement with the City by which condemnation suits to ac-
          quire the necessary rights-of-way are brought in the name of
          the City, and the amount of condemnation award or judgment be
          paid by the County.
                    Assuming that the title to the right-of-way has been
          acquired by the County In the name of the State, county road
          bond funds for the construction of the road may be used. See
          Attorney General's Opinion V-971.
Honorable Joe Resweber, Page 4    (WW-377)

                              SUMMARY
                      A judgment for the amount of
                      the condemnation award against
                      a city In condemnation suits
                      brought in the name of the city
                      cannot be paid by a county, since
                      such a judgment would constitute
                      an indebtedness of the city, and
                      the county Is not liable for the
                      indebtedness of the city. How-
                      ever, assuming that the title to
                      the right-of-way has been ac-
                      quired by the county in the name
                      of the State, county road bond
                      funds for the construction of
                      the road may be used.
                                   Yours very truly,
                                   WILL WILSON
                                   Attorney General of Texas




JR:jl:wam
APPROVED:
OPINION COMMITTEE
Geo. P. Blackburn, Chairman
Cecil C. Rotsch
J. Mark McLaughlin
J. Milton Richardson
John H. Minton, Jr.
REVIEWED FOR THE ATTORNEY GENERAL
BY:   W. V. Geppert
