                TEEATTORNEY                    GENERAL
                              OF   I‘EXAS



                          January 21, 1970


    Honorable John Lawhon                Opinion    No. M-561
    County and District Attorney
    Denton County Courthouse             Re:     Obligation   and authority
    Denton, Texas                                of County Commissioner
                                                 for city streets    within
    Dear Mr. Lawhon:                             Incorporated   city In county.
              Recently you have requested       an opinion   from this   office.
    We quote from your request as follows:
              "One of our county commissioners has requested
         that the following questions be submitted to you for
         your opinion.
                "la.    Does a county commissioner have the
         obligation     to furnish culverts   for use on the city
         streets     of Ponder, an Incorporated   city in his pre-
         cinct which does not levy city taxes?        b.  Should
         the Commissioner make a charge for the culverts?
               "2.  The city council of the city of Ponder,
         Texas has been authorizing   contractors to dig up
         city streets  to lay water lines for the community
         water system, while at the same time expecting    the
         county commissioner to keep up the city streets.
         Under these circumstances,   who has authority $0
         give such permission to dig up these streets?
                 In regard to roads within a particular    county, the Com-
    missioners    Court acts pursuant to Section 3 of Article     2351, Ver-
    non's Civil Statutes,     or Articles  6762,et seq, Vernon's Civil
    Statutes,    or some local road statute applicable    to a specific
    county.     We were unable to find a specific   road law applicable   to
    Denton County and therefore      this opinion is predicated   on the
    proposition    that none exists.
                                                                -
               From the above Articles  dealing with the general road
    authority  of the County, It Is clear that where there are lncor-
    porated cities  within a given county the streets  within the city


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i
Honorable   John Lawhon, page 2 (M-561)


are generally   subject to city control.     The Commissioners Court,
by virtue  of Artlole   6703, Vernon’s Civil   Statutes,  Is specifically
authorized to act In certa3n clroumstances.       Article  6703 Is
quoted a6 follows:
            “The commissioners court shall order the
     laying out and opening of public roads when
     necessary,   and discontinue    or alter any road
     whenever It shall be deemed expedient.        No
     public roads shall be altered or changed ex-
     cept to shorten the distance from end to end,
     unless the court upon a full lnvestlgatlon        of
     the proposed change finds that the public in-
     terest will be better served by making the
     change; and said change shall be by unanimous
     consent OS all the commissioners elected.         No
     part OS a public road shall be discontinued
     until a new road is first      built connecting the
     parts not discontinued;      and no entire first   or
     second class road shall be discontinued       except
     upon vacation or non-use for a period of three
     ykars.    Said court shall assume-and have control
     of the streets    and alleys in all .citles and in-
     corporated    towns In Texas which have no defacto,
     municipal government In the active discharge of
     their official    duties.”    (Emphasis added.)
           A de facto government would mean a government In fact
operating with or without good Salthh but a government which for
some reason Is not legal or “de jure . Black’s Law Dictionary,
(Fourth Ed., 1951) page 479.
           For purposes of this opinion we will assume that the
Clty’of Ponder has at least a de facto government, and therefore
the underlined  language of Article 6703 Is not applicable.
           When faced with the question of whether a county may
pave or improve, etc. a street within an incorporated  city,  the
courts hold that the county may do such work only if the city
consents to It, and provided the street Involved forms a con-
necting link In the county road or state highway system.
          In the case of Smith v. Cathey, 226 S.W. 158 (Tex.Civ.
App, 1920, no writ) the court held the county may pave a road
within a city if the city does not object.   At page 160 the court
stated :



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Honorable   John Lawhon, page 3         (~-561)




            'From the organization    of this state the
     Commlssloners'    courts of the different     counties
     have been given control and jurisdiction         over
     roads and highways, and this has been restricted
     by the law In respect to incorporated       cities    and
     towns, which Is still    respected   In those cases.
     In this case the town council makes no objection
     to the county taking this part of the highway
     under Its control.      When matters of this kind
     came before the court In a case reported In 18
     Tex. 874, State v. Jones, the question of juris-
     diction    of the commissioners'   court over roads
     and highways is first    reported.     In deciding
     that case the Supreme Court was content to adopt
     the opinion of the lower court, which says:
             'The county court does, It Is true, possess
     a general jurisdiction,          coextensive  with the
     limits of the county, to lay out and establish
     public roads and highways, but, as that jurls-
     diction      Is conferred     by a general law which is
     applicable      to every county In the state,         It Is
     at all times subject to be changed or modified
     by special      laws, acting upon the same subject
     In particular       counties,    or special  localities,'
     etc.      'It has been said In argument that, If the
     law Incorporating        the town takes away from the
     county court the power to lay out and regulate
     roads within the town limits,           the council do not
     choose to exercise        the power conferred upon it,to
     lay out streets       and highways, then the people of
     the county will be subjected           to the Inconvenience
     of having no road for travel or the transportation
     of their commerce through the town tract,'                etc.
      'Such a consequence,         In my judgment, by no means
     follows.       Until the town council acts under the
     authority      conferred   by its charter,     the general
     authority      of the county court over the subject
     matter continues to exist,           and may be exercised.
     It Is only when both bodies attempt to act In
     opposition      to and In conflict      with each other
     that the power and authority           of one must cease
     and yield to that of the other, and in such a
     state of things I am of the opinion that the
     authority      of the county court must yield to that
     of the town council.'



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.




    Honorable   John Lawhon, page 4 (M-561)


              Subsequent to the Smith v. Cathey case, supra, the
    Texas Supreme Court in City of Breckenrldge v. Stephens County,
    120 Tex. 318,.40 S.W.2d 43, (19311 concluded:   (Pages 43-44)
               "After a careful  Investigation  OS the
         authorities,  Including the Constitution   and laws
         of this State, we have reached the conclusion    that
         the Commissioners'   Court does have lawful authority
         to emend county road bond funds for the 1mDrovement


         jurisdiction  of the munl$ipallty,  or with Its   con-
         sent or approval.    . . .   (Emphasis added.)
                 In addition to the above cases you are referred to
    Hughes v. County Comm. Court of Harris County, 35 S.W.2d 818
    lTex.Clv.App.    1931, no writ).
    S.W.W 262 (Tex.Clv.App.,      $0
    v. City of Marshall, 253 S.W.2
    ref . n.r.e.1;   Attorney General
               Based upon an analysis    of the above statutes  and cases,
    It is our opinion that the Commissioner In question may act In
    improving a city street of Ponder with consent (express or Implied)
    of the city council,    provided such street Is a link in the county
    or state road system, City of Breckenrldge v. Stephens County,
    supra.   If such consent Is given, then the Commissioner may ex-
    erclse  the same jurisdiction    over such city street as he does
    over any county road, and a county commissioner then has no au-
    thority  to charge for such work or material furnished,     and by
    the same token would have the discretion      whether or not to per-
    form such work.

               In regard to your second question,  it Is our opinion
    that the city would clearly  be authorized to permit a contractor
    to Install  the city's water system , and IS necessary dig up the
    city streets without permission from the county commissioner,
    Harrison County v. City of Marshall,   supra.
                           SUMMARY
               The County Commissioners have the discretionary
         authority  to maintain a street,   which Is sn Integral
         part of a county or state road system, within an ln-
         corporated  city,  provided the city ha& expressly   or
         lmplledly  consented to such work.



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Honorable   John Lawhon, page   5(~-561)




                                V+'3       truly   yoyrs,




Prepared by James C. McCoy
Assistant Attorney General

APPROVED:
OPINION COMMITTEE
Kerns Taylor,  Chairman
Alfred Walker, Co-Chairman
Malcolm Quick
Tom Bulllngton
Jo Betsy Lewallen
CammLary
MEADEF. GRIFFIN
Staff Legal Assistant
NOLAWHITE
First Assistant




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