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                     THEAYTOWNEYGENERAL
                                      OFTEXAS                 "



                                   Dsc’smber 10, 1948

         l&n. Weldon B. Dsvls               Opinion NO. v-730
         County Attorney
         Austin County                      Re:    Tha authority   of the
         Dellvills i Texas                         Commiraiaaere~   Court
                                                   of Austin County to
                                                   .2ssume control over
                                                   streets  and alleys in
                                                   an unincorporated   town.
                              .,
         Dear Sir:
                      Your opinion       request   presents   the following
         question:
                     “Does Austin Cokity, ,throiigh its gov-
               ernmental agonof, to-wit,   the, Commissioners’
               Court of Austin County, have, the right to
               assume control over the roads, streets and
               alleys in an unincorporated   town and to open,
               veoate, maintain, etc.,   the streets,   alleys
               end roads in such unincorporated     town?”
                      Article       2351, V. C. S. is in part as follows:
                       Vsch      Commissionera’ Court shall:.       . .
                     “3.   Lay out and establish, change and
               discontinue   public roads and highways. . .
                     "6. Xxercise general control over all
               roads, highways, ferries  and bridges in their
               county .n
                       Article      6703, V. C. S. provides:
                     “The commlssionars 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
J              public roads shall be altered or changed ex-
               cept to shorten the distance from end to end,
               unless the court upon a full investigation
                                                               .   -



Hon. Weldon B, Davis,     Page 2 (V-730)


     of the proposed change finds that the public
     interest  will be better,.served   by making the
     change; end said change shall be by unani-
     mous consent of all the commissioners elect-
     ed. No part of a public road shall be dis-
     continued until e new road is first      built
     connecting the parts not discontinued;       and
     no entire first  or second olass road shall
     be discontinued  except upon vacation or non-
     use for a period of three years,       Said court
     shall assume and have control of the streets
     and alleys in all oities     end incorporated
     towns in Texas whioh have no de facto muni-
     cipal government in the active discharge of
     their official  duties.”
          In the case of Blair v. Archer Counte,         192
S.W. 2d 573, the Court stated as follows:
          R
              .   .   .



           v(l)’ This suit is one brought solely
     for the purpose of preventing the defendant
     from obstructing  the dedicated streets in-
     volved and from interfering   with the use
     thereof by the public.
          *It was the duty of the plaintiff,   act-
     ing through its County Attorney,  to bring
     such a suit,
          "e . .
             .
           “If the town of Dundee were incorporat-
     ed, it would have been its duty, through its
     proper officers,  to bring suit to. prevent
     the obstruction  of its streets and alleys,
     by a suit for injunction,       .
          R. . .

           “Since the town is not incorporated,
     it seems to us that the next municipel cor-
     poration,   having an interest  in keeping open
     these streets and alleys within its borders
     --namely,   the County of Archer--was   the prop-
     er party. to bring the injunction   suit.”
c




    Hon..,Wrldon      B. Davis,   Page 3 (V-730)


                 The above case wea reversed in Blair v.
    Archer County (Sup. Ct.) 195 S. W. (26)     348, solely
    on jurisdictional    grounda, but the opinion did not
    otherwise disturb the opinion of the Court of Civil
    Appeals.
               By virtue of the foregoing   authorities,  It
    is the opinion of this office   that all roads, streets,
    and alleys which are a part of the County Road System
    lying within en unincorporated   town may be controlled
    and maintained by the Commissioners* Court of Austin
    county.   Therefore, your question should be answered
    in the affirmative.


                    Austin County, throua         its Commissioners1
              Court, has authority        to aasum oontrol   of and
              maintain    roads,  streets,    and alleys of an un-
              incorporated     town which are e part of the            Le.
              County Road System.
                                            Ydurs very    truly,
                                        ATTOEEIEY
                                                GENERALOF TEXAS



                                             Burnell Waldrep
    BW:m: bh                                        Assiatant


                                        APPROVED:
