   OFFICE   OF THE   ATTORNEY   GLNEw.L   STATE   OF TEXAS

   JOHN     CORNYN




                                                  April 19,1999



The Honorable Ronald D. Hankins                              Opinion No. JC-0036
Somervell County Attorney
P.O. Box 1335                                                Re: Whether a county may build, maintain, or
Glen Rose, Texas 76043                                       improve city streets that are not integral parts of
                                                             or comiecting links with county roads or state
                                                             highways    (RQ- 1200)


Dear Mr. Hankins:

         You ask whether a county may build, maintain, or repair streets within a city in the county
that are not integral parts ofor connecting links with the county roads or state highways. In essence,
you ask us to reconsider Attorney General Opinion JM-892 and Letter Opinion 97-084.                These
opinions conclude that a commissioners court does not have authority under section 25 1.012 of the
Transportation Code and its predecessor to expend county funds to improve, maintain, or repair city
streets that are not integral parts of or connecting links with the county road system. For the reasons
set forth below, it is the opinion of this office that a commissioners court may expend county funds
to build, maintain, or improve city streets that are not integral parts of or connecting links with the
countyroad systeminaccordance         withsection251.012,   ifsuchexpenditures   serve acountypurpose,
but that the commissioners court may not expend proceeds ofbonds issued or taxes levied pursuant
to article III, section 52(b) or (c) of the Texas Constitution to improve such streets. We overrule
Attorney General Opinion JM-892 (1988) and Letter Opinion 97-084 to the extent they are
inconsistent.

        Under the common-law, “road” and “street” have distinct meanings. A “road” is a county
highway forming a communication between the city limits of one city or town and the city limits of
another city or town, while a “street” is a passageway within the bounds of a municipality.      See
Williams v. Carroll, 182 SW. 29,35 (Tex. Civ. App.-Beaumont 1916), modifiedon othergrounds,
202 S.W. 504 (Tex. 1918). Significantly, a city street that forms an integral part of or connecting
link with county roads or state highways is a county road to the extent that county funds may be
spent for its improvement.   City of Breckenridge v. Stephens County, 40 S.W.2d 43,43-44 (Tex.
1931).
The Honorable     Ronald D. Hankins        - Page 2           (X-0036)




        In 1985, the legislature authorized a county to improve city streets unconnected to county
roads or state highways by adopting article 6702-1, section 2.010 of the Revised Civil Statutes.’
That provision was repealed and is now codified as section 251.012 of the Transportation Code,
which provides as follows:

                       (a) With the approval of the governing body of a municipality,
                  the commissioners court of a county may spend county money to
                  finance the construction, improvement, maintenance, or repair of a
                  street or alley in the county that is located in the municipality,
                  including the provision oE

                       (1) necessary roadbed preparation         or material;

                       (2) paving or other hard covering of the street or alley; or

                       (3) curbs, gutters, bridges, or drainage facilities.

                      (b) County work authorized            by this section may be done or
                  financed:

                       (1) by the county through the use of county equipment;

                       (2) by an independent           contractor         with   whom      the county   has
                       contracted,

                       (3) by the county as an independent          contractor with the municipality;
                       or

                       (4) by the municipality,           with      the     municipality     to be
                       reimbursed by the county.

                       (c) A county acting under this section has, to the extent
                   practicable, the same powers and duties relating to imposing
                   assessments for the construction, improvement,   maintenance, or
                   repair as the municipality would have if the municipality were to
                   finance and undertake that activity.


         ‘See Act of May 27, 1985,69th Leg., R.S., ch. 625, 9 1, 1985 Tex. Gen. Laws 2323 (providing that County
 and Road and Bridge Act, article 6702-1, Revised Civil Statutes, is amended by addition of section 2.010).

           ?ke Act of May 1,199s. 74th Leg., R.S., ch. 165, $5 1,24, Tex. Gen. Laws 1025,1154,1870-71 (repealing
 article 6702- 1, Revised Civil Statutes, the County Road and Bridge Act, enacting section 25 1.012 of the Transportation
 Code, and providing that “[tlhis Act is intended as a recodification only, and no substantive change in law is intended
 by this Act.“).
The Honorable   Ronald D. Hankins     - Page 3         (~~-0036)




                    (d) A county acting under Subsection (b) may not spend bond
                  proceeds for the construction of a new road in a municipality
                  unless the construction is specifically authorized in the election
                  approving the issuance of the bonds, regardless of the source of
                  the money used to acquire the equipment used to construct the
                  road.

                    (e) The authority granted by this section is in addition     to the
                authority of a county provided by a local road law.

        In Attorney General Opinion JM-892, this office interpreted former article 6702-1, section
2.010, to authorize a county to expend county funds to construct a street located within an
incorporated city only if the street is an integral part of or connecting link with the county roads and
highways. The offrice based this interpretation on the premise that section 2.010 codified in part the
common-law rule that a county may exercise limited authority over city streets provided the city
consents, and provided further, that such streets form “integral parts” of or “comiecting links” with
the county road system. Tex. Att’y Gen. Op. No. JM-892 (1988) at 8. Acknowledging that former
section 2.010 did not expressly impose the integral part/connecting           link requirement, JM-892
nevertheless grafted that requirement for the following stated reason:

                     We note, however, that upon its original enactment, the County
                  Road and Bridge Act did not purport to expand the powers of the
                  commissioners     court.   Rather, it was merely intended as a
                  revision of the laws concerning countv roads and bridges. Acts
                  1983,68thLeg.,ch.     288, [1983 Tex. Gen. Laws] at 1431..       We
                  are constrained     to interpret section 2.010 in that light.
                  Accordingly, the commissioners      court of a county may spend
                  county funds to finance the construction of a street or alley
                  located within the boundaries of an incorporated city or town in
                  a manner provided in section 2.010 if the governing body of the
                  city or town consents and the street or alley is an integral part of
                  the public roads or highways of the county or a connecting link
                  therewith.

Id. at 9 (emphasis    in original). Although Letter Opinion 97-084 questioned whether Attorney
General Opinion JM-892 was correct in construing former section 2.010 to incorporate the integral
part/connecting link requirement, it nevertheless adhered to the same conclusion. The opinion stated
that interpreting former section 2.0 10 to include this requirement avoids constitutional questions that
have not been addressed by the courts, the resolution ofwhich cannot be predicted. Tex. Att’y Gen.
LO-97-084, at 4-5.

        With the above background, we turn to your request and re-examine section 25 1.012 of the
Transportation Code, formerly article 6702-1, section 2.010 of the Revised Civil Statutes, guided
The Honorable Ronald D. Hankins              - Page 4           (X-0036)




by the following principles of statutory construction: The ultimate purpose of statutory construction
is to effect the legislature’s intent. Union Bankers Ins. Co. v. Shelton, 889 S.W.2d 278, 280 (Tex.
1994). Where language in a statute is unambiguous, like a court, we must seek the legislature’s
intent in the plain and common meaning of the words and terms used. Monsanto                        Co. v.
Cornerstones Mun. Util. Did, 865 S.W.2d 937, 939 (Tex. 1993). Every word excluded from a
statute must be presumed to have been excluded for a purpose, and only when it is necessary to give
effect to the clear legislative intent can additional words be inserted in a statutory provision.
Cameron v. Terre11 & Garrett, Inc., 618 S.W.2d 535, 540 (Tex. 1981). Application of these
principles leads us to conclude that the legislature did not intend the integral part/connecting       link
requirement to apply to streets that a county may improve under section 25 1,012. The statute plainly
authorizes a commissioners court to expend county funds for city streets with the approval of the
city’s governing body. The statute did not and does not now expressly impose the integral
part/connecting     link requirement.   Additionally, nothing in its language or legislative history
indicates that the legislature intended this requirement to apply. In fact, the legislative history shows
that the legislature indeed intended to expand a county’s authority with respect to city streets.’

         Attorney General Opinion JM-892’s stated rationale for grafting the integral part/connecting
link requirement to former section 2.010, notwithstanding        the plain language of the statute, is
unpersuasive. As was noted in Letter Opinion 97-084, the legislature adopted former section 2.010
in 1985, substantially after the formulation of the rule with respect to a county’s authority over city
streets and two years after the original enactment of the County Road and Bridge Act. The common-
law rule that a county may exercise limited authority over a city street if the city consents and the
street is an integral part of or connecting link with the county roads was formulated in the absence
of specific statutory authority allowing the county to exercise any authority over city streets.4 By
adopting section 2.010, the legislature intended to change the law: it incorporated the common-law
requirement that a city consent to county improvement            of city streets but not the integral
part/connecting     link requirement.     See Monsanto, 865 S.W.2d at 280 (where language is




         ‘See Hearings on Tex. S.B. 513 Before the Senate Comm. on Intergovernmental           Relations, 69th Leg., R.S.
(May 7, 1985) (statement by sponsor, Senator Sarpalius, that bill would allow county to spend money on roads in city
if approved by the commissioners court and city, giving example of “one particular county that has one major city
within that county, half of the city doesn’t have any paved roads but yet a bulk of the tax paid withii the county cmnes
from the City of Perryton and this would allow county commissioners [on] their own vote to be able to spend money
within the city limits to rebuild roads or do anything there within the city owned roads.“) (tape available. from Senate
S~~~~S~~~~~~~O~~~~~);S~~~~~~HOUSECOMM.ONCO~TYAFFAI~,BILLANALYS~S,T~~.                        C.S.S.B. 513,69thLeg.,R.S.
(1985) (Background Information) (bill would allow county with city’s consent to spend county funds to upgrade,
maintain, OI repair city roadways with city’s consent).

         “See, e.g., City of Breckenridge v. Stephens County, 26 S.W.2d 405,408-l l(Tex. Civ. App.-Easfland 1930),
rev’d, 40 S.W.2d 43 (Tex. 1931) (reviewing possible statutory sxuces of county authority wer city streets, fmding
none, and concluding that ifpublic welfare requires that such authority exist, legislature must supply it); Tex. Att’y Gen.
Op. Nos. H-1018 (1977) at 4 (county lacks authority under general law to improve city streets unconnected with county
roads); V-484 (1948) at 5(city stieets unconnected with county roads may not be improved given exclusive municipal
jurisdiction cwer streets and absence of county authority over such streets).
The Honorable   Ronald D. Hankins     - Page 5         (K-0036)




unambiguous, court must seek legislative intent in plain language).5 The fact that former section
2.010 was added to the County Road and Bridge Act, which when originally enacted may have been
intended merely to deal with county roads, did not require an interpretation of former section 2.010
as dealing only with county roads under any rule of statutory construction of which we are aware.
Accordingly, we conclude that section 25 1.O12 of the Transportation Code does not require that a
city street be an integral part of or connecting link with county roads or state highways in order to
be improved with county funds. This does not end our inquiry, however.

         Even though the statute does not expressly require that city streets be integral parts of or
connecting links with county roads or state highways to be eligible for expenditure of county funds,
we must determine whether it must nevertheless be construed to incorporate such a requirement to
avoid constitutional infirmities. See Holmans v. Transource Polymers, Inc., 914 S.W.2d 189, 191
(Tex. App.-Fort Worth 1995, writ denied) (court must adopt interpretation which protects statute’s
constitutionality); TEX. GOV’TCODEANN. 5 3 11.021(l) (Vernon 1998) (when enacting statute, must
presume legislature intended compliance with state and federal constitutions). Letter Opinion97-084
indicated that expenditure of county tinds to improve city streets unconnected with county roads
implicated lending of credit concerns under Texas Constitution article III, section 52(a), among
others. Tex. Att’y Gen. LO-97-084, at 4 n.14. Additionally, the opinion noted that county
improvement andmaintenanceofsuchpurelycity            streetsmaynot constitute“countybusiness”under
article V, section 18 of the Texas Constitution.             Id. Finally, while not implicating the
constitutionalityofsection251.012,     theopinionsuggestedthatproceedsofcountyroadbonds           issued
or taxes levied pursuant to article III, sections 52(b) and (c), would not be available to improve city
streets unconnected to county roads based on the Texas Supreme Court’s holding in Breckenridge,
40 S.W.2d 43 (Tex. 1931).

          We first consider article III, section 52(a). This section prohibits the legislature from
authorizing political subdivisions to lend their credit except as otherwise provided in that section.
This prohibition extends to transfer of funds or resources from one political subdivision to another.
See Harris County Flood ControZDist. v. Mann, 140 S.W.2d 1098,1104 (Tex. 1940) (under article
III, section 52, no funds of Harris County can be pledged or used to pay bonds of Harris County
Flood Control Dist.). However, “[a] transfer of funds for a public purpose, with a clear public
benefit received in return” does not violate the constitutional lending of credit prohibition. Meno
v. Edgewoodlndep. Sch. Dist., 917 S.W.2d 717,740 (Tex. 1995). Thus, political subdivisions may
assist each other only if the funds granted by one political subdivision to another are used for a
definite public purpose of the granting subdivision. Tex. Att’y Gen. Op. No. JM-1255 (1990) at 3
(and cases cited therein). Therefore, a county may assist a city, but only if the county funds are used
to accomplish a county purpose. Accordingly, the question for purposes of this opinion, is whether
a county purpose may be accomplished by expenditure of county funds for improvement of city
streets in the county.
The Honorable   Ronald D. Hankins     - Page 6         (JC-0036)




         Whether a particular use of county funds is for a county purpose is a determination that a
commissioners      court must make in the first instance, subject to judicial review for abuse of
discretion. See id. Therefore, a commissioners court may expend county funds to improve a city
street if it determines that such expenditure serves a county purpose. A determination that the
expenditure serves a county purpose must, of course, be reasonable. See Commissioners Court of
Titus County v. Agun, 940 S.W.2d 77,SO (Tex. 1997) (“If the Commissioners Court acts illegally,
unreasonably, or arbitrarily, a district court may so adjudge.“).

         Clearly, an expenditure of county funds to improve a city street that is an integral part of or
connecting link with county roads serves a county purpose because such street is a county road. See
Breckenridge, 40 S.W.2d at 44 (city street that forms connecting link with county road or state
highway is county road to extent it may be improved with county funds.); see also Williums, 182
S.W. at 30 (“road” means county highway forming communication between city limits of city or
town and city limits of another city or town, while “street” means passageway within bounds of
municipality).    But this is not the only circumstance in which a county purpose may be served. For
example, a particular city street that is in need of repair might be a major public thoroughfare,
necessary for travel to different parts of the county or used by a significant number of the county
residents, yet unconnected to county roads. Whether a particular city street improvement indeed
serves a county purpose would ordinarily be a question of fact to be determined by the
commissioners court in the first instance. Cf: Turrunt County Y. Shannon, 104 S.W.2d 4, 9 (Tex.
 1937) (facts alleged with respect to road construction expenditures bear on wisdom of project but
do not show abuse of discretion; determining necessity for construction and location of public
highways left to sound judgment and discretion of commissioners courts). Therefore, in order to
satisfy article III, section 52(a), a commissioners court would have to find that an expenditure would
serve a county purpose before expending county funds for a city street unconnected to county roads.

         We next consider article V, section 18(b). This constitutional provision, in pertinent part,
states that the county commissioners        and the county judge “shall compose the County
Commissioners    Court, which shall exercise such powers and jurisdiction over all the county
business, as is conferred by this Constitution and the laws of the State, or as may be hereafter
prescribed.” This provision impliedly prohibits the legislature from giving commissioners courts
authority over matters other than county business. Mann, 140 S.W.2d at 1105; Sun Vapor Elec.
Light Co. v. Kenan, 30 S.W. 868, 868-69 (Tex. 1895). Accordingly, the question for purposes of
this opinion is whether “county business” can include improvements of city streets within the
county.

        The term “county business” is to be given a broad and liberal construction so as to extend
to the commissioners court power over all business of that county granted by the state constitution
and laws. Mann, 140 S.W.2d at 1108 (citing Glenn v. Dallas County BoisD’ArcIslandLevee Disk
275 S.W.137, 145 (Tex. Civ. App-Dallas 1925), judgm’t rev’d on other grounds, 288 S.W. 165
(Tex. 1926)). Thus, “county business” has been broadly construed by the Texas courts to encompass
matters of general concern to county residents.     See id. at 1105 (affairs of conservation and
reclamation   district); Rodgers v. County of Taylor, 368 S.W.2d 794, 796-97 (Tex. Civ.
The Honorable      Ronald D. Hankins         - Page 7            (X-0036)




App.-Eastland    1963, writ ref dn.r.e.) (reporting grand jury testimony);               Glenn, 275 S.W.137 at 145
(affairs of levee improvement district).

         We look at some specific matters that the Texas courts have considered as “county business.”
In Sun Vapor, the Texas Supreme Court held that the legislature could not require a commissioners
court to take charge of and administer the affairs of a defunct city because it was not “county
business.” Sun Vapor, 30 S.W. at 868-69. Since Sun Vapor, the courts have not so narrowly
construed “county business.” In Mann, while the Texas Supreme Court recognized that section
18(b) “does, by implication, prohibit the Legislature l?om requiring duties &om the Commissioners’
Courts not ‘county business, ‘M it determined that “‘county business’ cannot be confined in such a
narrow groove as to prohibit the legislature from committing to the commissioners’ courts the
governing affairs of conservation and reclamation districts,” located within the county and created
under a specific constitutional provision. Mann, 140 S.W.2d at 1105. The court did not indicate
what the term would encompass beyond the affairs of a drainage district. It did, however, rely on
and approve the holding in Glenn, 275 S.W. 137, with respect to the construction and scope of
“county business.” See id. at 1108.

        The Glenn court dealt with a legislative act that imposed on the commissioners court duties
with respect to levee improvement districts similar to the drainage districts at issue in the Mann case.
The Glenn court distinguished the levee improvement district act in question Tom the legislative act
involved in Sun Vapor as follows:

                   [The Sun Vapor] decision involved the validity of an act of the
                   Legislature making it the duty of the commissioners’ court to act in
                   matters that were not in any respect county business, while the act in
                   question only confers jurisdiction to act in reference to matters that
                   are of public concern to the people of the county, therefore, county
                   business.



          6The brief submitted with your request contends that article V, section 1S(b) does not prohibit the legislature
from conferring on the commissioners court powers and duties that are not “county business,” relying on the Mann
court’s statement that “[i]t is evident that such constihltional provision contains no direct or express prohibition against
clothing the Commissioners’ Court with powers and duties other than ‘County business”’ to support its contention. See
Letter from Robert A. Sparks, Attorney at Law, Sparks & Rug&y, P.C, to the Honorable Helen Kenvin, Mayor, City
ofGlen Rose 12 (May 8, 1998) (on tile with Opinion Committee). However, the brieffails to note the court’s statement
of the law that immediately follows:

                   It follows that if such provision prohibits the Legislature from clothing the
                   Commissioners’ Courts with powers and duties not classed as “county business,”
                   it is by implication only. It would seem that this Court is committed to the
                   interpretation  that the comtihrtional   provision under discussion does, by
                   implication,   prohibit  the Legtilature   fkm     requiring duties from  the
                   Commissioners ’Courts not “county business. ”

Mann, 140 S.W.Zd at 1105 (citing Sun Vapor, 30 S.W. 868 (Tex. 1895)) (emphasis added).
The Honorable Ronald D. Hankins       - Page 8         (JC-0036)




Glenn, 275 S.W. at 145. Thus, the Texas Supreme Court indicated that “county business” can
encompass matters relating to other political entities in the county so long as such matters are of
public concern to the people in the county. Matters of public concern to persons in the county under
this analysis are those that serve a county purpose. See also Rodgers, 368 S.W.2d at 797 (benefits
derived by county from reporting grand jury testimony “are those general intangible benefits which
flow to the public generally from good law enforcement.“). Therefore, matters that serve a county
purpose are county business for the purposes of article V, section 18(b) of the Texas Constitution.

        County improvement of a city street that is an integral part of or connecting link with a
county road clearly constitutes “county business” because such street is a county road. See
Breckenridge, 40 S.W.2d at 44 (city street that forms connecting link with county roads or state
highways is county road to extent it may be improved with county funds). As noted earlier, that is
not the only circumstance in which a county purpose may be served. Improvement of city streets
unconnected with county roads but that are major thoroughfares, necessary for travel from one part
of the county to another or used by a significant number of county residents, may also serve a county
purpose. Consequently, such street improvement may constitute “county business,” distinguishable
from other general municipal functions, which are not. We believe a court considering the matter
would probably find this distinction persuasive and construe “county business” liberally to
encompass improvement of such city streets. Again, whether a particular city street improvement
is indeed county business would ordinarily be a question of fact to be determined by the
commissioners court in the first instance. See Shannon, 104 S.W.2d at 9. Therefore, in accordance
with article V, section 18(b), we read section 25 1.012 as requiring a commissioners court finding
that a particular expenditure is “county business.”

        We caution, however, that although in our opinion county improvement of city streets
unconnected with county roads in certain circumstances may constitute county business, no Texas
court has considered this precise question. Additionally, given the limited range of matters the
Texas courts have considered in reference to county business, we do not know what other matters
may be encompassed by the term, and limit our opinion as to the reach of county business to county
improvement of city streets that serve a county purpose.

         While article III, section 52(a) and article V, section 18(b) are not constitutional impediments
to this office’s construction of section 25 1.012 as authorizing county improvement of city streets
unconnected with county roads, article III, sections 52(b) and(c) impose constitutional limits on the
funds available for improvement of such city streets. You do not ask and we do not consider
generally the sources of funds that may be available to a county to fund city street improvements,
but we address the limitations imposed by sections 52 (b) and (c) because the Breckenridge case
deals specifically with the expenditure ofproceeds ofbonds issued pursuant to section 52(b) for city
streets.

        Sections 52(b) and (c) provide one method of mnding road improvements through the
issuance of bonds and the levy of a tax to pay the bonds. See TEX. CONST.art. VIII, 3 9 (authorizing
eighty cent tax for general fund, permanent improvement fund, road and bridge fund and jury fund
The Honorable     Ronald D. Hankins       - Page 9           (X-0036)




purposes). These provisions are significant in that the tax authorized is separate from the eighty cent
tax a county may levy for general county purposes, including payment of principal and interest on
tax bonds or other obligations that a county is elsewhere authorized to issue or incur, and is not
limited to an amount. Id. art. III, 5 52(b), (c); id. art. VIII, 5 9; see also 35 DAVID B. BROOKS, TEXAS
PRACTICE: COUNTY AND SPECIAL DISTRICTLAW 5 17.25 (1989) (discussing county’s authority to
issue bonds for roads payable from county’s general eighty cent tax under article VIII, 5 9, OY
payable from separate and unlimited tax under article III, 5 52). Section 52(b) provides that if
authorized by the legislature, a county, apolitical subdivision of the state, adjoining counties, or any
defined district “and which may or may not include, towns, villages or municipal corporations” may
issue bonds for construction and maintenance of “roads or turnpikes,” payable t?om a tax levied and
collected in the district or applicable territory but only if approved by two-thirds majority of the
residents ofthe district or affected territory. TEX. CONST. art. III, C,52(b). Section 52(c) authorizes
specifically a county to issue bonds for the same purposes and levy and collect the tax to pay the
bonds if approved by a simple majority of the county residents rather than the two-thirds majority
required in subsection (b).

         In Breckenridge, the court looked at section 52(b) and reasoned that if a municipality is an
“integral part” of a road district, the property of the municipality is clearly subject to road district
taxes, just as is the property of the district located outside the municipality.          Breckenridge, 40
S.W.2d at 44. Given the foregoing, the court continued, the commissioners court has, by the express
provisions of the constitution, the right to expend road district bond funds on such city streets “where
such streets are parts of and form connecting links in county or state highways.” Id. Similarly, the
court stated, where road bonds are voted by the entire county, the incorporated cities and towns
located therein are clearly integral parts of the county, and all of the property in the county is subject
to taxation for the payment of the county road bonds.             Id. Thus, the court determined, a
commissioners     court has the authority to spend county road bond funds on county roads and
highways in any part of the county. Id. The court concluded that if a street in an incorporated city
or town “forms a connecting link in the county road or state highway,            it is a county road within
the meaning of the stututes to the extent that county funds may be spent for the improvement
thereof.” Id. (emphasis added). It appears that “the statutes” the court referred to were the general
provisions conferring authority on a commissioners court over public roads and highways in the
county and, specifically, former article 726 of the Revised Civil Statutes,’ authorizing issuance of
the county road bonds at issue pursuant to article III, section 52(b). See City ofBreckenridge Y.
Stephens County, 26 S.W.2d 405,406 (Tex. Civ..App.-Eastland            1930), rev’d, 40 S.W.2d 43 (Tex.
 193 1) (county authorized to issue bonds in question for roads and turnpikes under Revised Civil



          ‘Article 726 WEISrepealed and its substance covered in article 752a of the Revised Civil Statutes, which was
also repealed and its substance covered by article 6702-l. section 4.41 I, TEX.REV.Qv. STAT.ANN.(the County Road
andBridge Act); section4.41 lwas transferred to and redesignated as article 726, section2.00l,To(. REV.Qv. STAT.ANN.
(Vernon Supp. 1999). SeeActapprovedOct.         18,1926,39tbLeg., lstC.S,ch. 16,@ 1,30,1926Tex.Gen.Laws23,
24, 32; Act of May 20, 1983, 68th Leg. R.S., ch. 288, $9 I, 2, 1983 Tex. Gen. Laws 1431, 1492, 1526-27; Act of
Jul. 3, 1984,68tb Leg., 2d C.S., ch. 8, $5 1,2(a), 1984 Tex. Gen. Laws 29,54,66-67; Act of May 1, 1995,74tb Leg.,
R.S., ch. 165,§ 21,1995 Tex. Gen. Laws 1025,1839.
The Honorable Ronald D. Hankins          - Page   10    (X-0036)




Statutes, article 726 (1925) (repealed     1926)), id. 409-10 (discussing   applicable statutes including
former article 726).

        The Breckznridge court assumed that a commissioners court had authority to expend the
county funds at issue only on county “roads” as opposed to city “streets,” but did not explicitly
indicate the reason for that assumption. We are uncertain as to whether the court’s assumption was
based on the then general-law authority of a county only over county roads or on the fact that the
funds at issue were proceeds of bonds approved by the voters and issued under article III, section
52(b) only for county roads, because of the common-law meaning of “road” as a county road.

         If the Breckenridge court’s assumption that a commissioners court could expend the county
funds only on county roads was premised on the lack of a county’s statutory authority over city
streets, section 25 1.012 of the Transportation Code clearly provides that authority. However, if the
court’s assumption was based on the principle that bonds issued pursuant to article III, section 52(b)
and the enabling legislation, former article 726 of the Revised Civil Statutes, were approved and
issued only for county road purposes and thus proceeds of the bonds could be used only for county
roads, then section 25 1,012 does not expand that authority.

         Provisions authorizing a local govemment to create debt must be strictly and narrowly
construed. SeeSan Antonio Union Junior CollegeDist. v. Daniel, 206 S.W.2d 995,999 (Tex. 1947)
(and cases cited therein) (power to issue negotiable paper for improvements beyond powers of city
or county unless specially granted; when granted, can only be exercised in mode and for purposes
specified). Article III, sections 52(b) and (c) and the enabling legislation, current article 726, section
2.001 of the Revised Civil Statutes, continue to authorize bonds for “roads”; they do not authorize
bonds for city streets. See id. (bonds may be approved and issued only for purposes expressly
authorized); Tri-City Fresh Wafer Supply Dist. No. 2 v. Mann, 142 S.W.2d 945, 948 (Tex. 1940)
(taxing power may be exercised only for purposes distinctly included in constitutional or legislative
provision); Blackv. Strength, 246 SW. 79 (Tex. 1922) (proceeds ofbonds approved by voters may
be used only for purposes for which voters approved bonds); Moore v. Cojiian, 200 S.W. 374 (Tex.
 1918) (same); Robbins Y. Limestone County, 268 SW. 915, 919 (Tex. 1925) (taxes levied and
collected for particular purpose may not be diverted to purposes other than for which they were
voted); see also35 DAVID B. BROOKS,TEXAS PRACTICE:COUNTY AND SPECIALDISTFXT LAW 8
 17.25 (1989) (article III, $ 52 bonds limited to roads and turnpikes). Section 251.012 authorizing
improvement of city streets does not purport to be enabling legislation for article III, section 52(b)
or (c) and, more importantly, it cannot amend a constitutional provision.

        Given our uncertainty with respect to the Breckenridge court’s rationale, we take the more
cautious approach, and conclude that proceeds ofbonds issued or taxes levied pursuant to article III,
The Honorable      Ronald D. Hankins        - Page     11       (X-0036)




section 52(b) or(c) may only be used for county roads.’ Therefore, section 52(b) and (c) funds may
not be used to improve city streets unconnected with county roads under section 251.012.9

         In sum, section 251.012 ofthe Transportation Code, former article 6702-1, section 2.010 of
the Revised Civil Statutes, does not by its terms require that city streets be integral parts of or
connecting links with county roads in order to be improved with county funds. The legislative
authorization of section 25 1.012, however, is limited by article III, section 52 and article V, section
 18(b) of the constitution.   These provisions do not as a matter of law prohibit county improvement
of city streets that are not integral parts of or connecting links with county roads or state highways.
Article III, section 52(a) and article V, section 18(b) do require that any expenditure of county funds
for improvement to streets unconnected to county roads or state highways serve a county purpose.
Article III, sections 52(b) and (c) limit the use of bond proceeds issued and taxes levied under these
provisions to county roads. Accordingly, it is the opinion of this office that a commissioners court



          ‘In this regard, we note that section 25 1.012(d) suggests that only consinxtion of a new municipal street must
be specifically approved by the voters before bond proceeds may be used for that purpose. However, we do not believe
that proceeds of voter approved bonds, even those that are not issued pursuant to article III, section 52(b) or (c) as
unlimited tax bonds, may be used for any city street purpose if such purpose is not specitically approved by the voters.
In other words, proceeds of bonds approved by the voters only for county roads may not be used to repair or maintain
city streets unconnected to county roads. See Black, 246 S.W. 79 (bond proceeds may only be used for the purposes
for which the voters approved the bonds); Moore, 200 S.W. 374 (same); see also Breckenridge, 40 S.W.2d at 43-44.

           The brief submitted with your request argues that the Breckenridge case does not require that a street be an
integral part of or connecting link with a county road in order for a county to expend funds for its improvement because,
it asserts, the integral part/connecting link was not an issue in the case: “As Walker Street was a connecting link with
the county road system the question as to whether or not the county could pave, maintain, or lay streets which are city
streets and do not connect or are not a part of a county mad system was not before the Court.” Letter from Robert A.
Sparks, Attorney at Law, Sparks & Rugelq, P.C., to the Honorable Helen Kenvin, Mayor, City of Glen Rose 4 (May
8, 1998) (on file with Opinion Committee).      Accordingly, the brief states, Breckenridge did not hold that “Stephens
County could not aid the City of Breckemidge by improving streets that were not part of the county road system as that
question was not before the Court.” Id. We disagree. The Breckenridge court’s holding is as follows:

         After a car&l investigation of the authorities, including the Constitution and laws of this state, we
         have reached the conclusion that the commissioners’ court does have lawful authority to expend
         county road bond funds for the improvement of city streets where such streetsfirm integra[ports of
         county roads or state highways, when such improvements are made without conflicting with the
         jurisdiction of the municipality, OI with its consent or approval.


         The commissioners’    court has the right to expend county mad bond funds on colrnfy roads and
         highways in any part of the county. Ifa street of an incorporated town or cityforms a connecting link
         in the county road or state highway, we think it is a cowtry road withii the meaning of the statutes
         to the extent that county funds may be spent for the improvement thereof.

Breckenridge,  40 S.W.2d at 43-44 (emphasis added). The court clearly conditions the expenditure of county road bond
proceeds to improve city streets on such streets being a part of or connected with county roads. To conclude that
because the court does not hold that a county cannot improve a purely city street, the integral part/connecting link is
not a requirement imposed by Breckenridge, as the brief does, is to ignore the plain language of the court’s holding.
The Honorable   Ronald D. Hankins     - Page   12     (X-0036)




may expend county funds in accordance with section 25 1.O12 to improve city streets in the county
that are unconnected to county roads or state highways if such expenditure serves a county purpose
and the commissioners court makes a finding to that effect. The commissioners court may not
expend proceeds of bonds issued or taxes levied pursuant to article III, section 52(b) or (c) to
improve such city streets. Finally, we observe that section 251.012 merely authorizes a county to
pay for or undertake street projects within a municipality; it does not require a county to pay for or
undertake them.

                                        SUMMARY

                    A county may build, maintain, or improve city streets that are not
                integral parts of or connecting links with county roads or state
                highways in accordance wifh section 251.012 of the Transportation
                Code, if such expenditures serve a county purpose.         However, a
                county may not expend proceeds of bonds issued or taxes levied
                pursuant to article III, section 52(b) or (c) of the Texas Constitution
                for such city streets.

                    Attorney General Opinion JM-892 (1988) and Letter Opinion 97-
                084 are overruled to the extent they provide that a county may expend
                county funds in accordance with section 25 1,012 and its predecessor
                only to improve city streets that are integral parts of or connecting
                links with the county roads or state highways.




                                               JOAN      CORkYN
                                               Attokey   General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Prepared by Sheela Rai
Assistant Attorney General
