Can a Texas county call a bond election to pay for fixing streets inside a city?

Plain-English summary

Sterling City told Sterling County that every road in the city needed work and that the city had neither the equipment nor the money to do it. The city asked the county to call a bond election to fund the street construction and repair. The county attorney then asked the AG whether a county can call a bond election under article III, section 52 of the Texas Constitution and spend the money on city roads without first buying those roads or forcing the city to disincorporate.

The AG started from a long-settled point: inside a city's boundaries, the city's authority over its streets generally beats the county's authority over county roads. The leading case is the 1931 Texas Supreme Court decision City of Breckenridge v. Stephens County, which held that a commissioners court can spend county road bond money on city streets only where those streets form integral parts of, or connecting links in, county or state highways, and only with the city's consent. A line of AG opinions after Breckenridge applied that same integral-part/connecting-link requirement.

The county attorney pointed out that in 1999 the Legislature passed statutes (Transportation Code section 251.012 and Government Code section 791.032) that seemed to drop the integral-part/connecting-link requirement and let a county finance city streets that are not connected to other roads. The AG had addressed this before, in 2007, and repeated the answer here: those statutes cannot override the constitutional limits on how road bond funds are used. A statute cannot amend a constitutional provision. So absent a change to article III, section 52, county road bond proceeds still have to be spent on county roads, which in the city context means streets that are integral parts of or connecting links to a county road or state highway.

The AG closed by noting that whether a particular street meets the integral-part or connecting-link test is a question of fact for the county commissioners court to decide in the first instance, and that nothing in Breckenridge requires the county to buy the streets or the city to disincorporate.

Currency note

This opinion was issued in 2020. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule mentioned here.

What the opinion meant for those who asked

For the Sterling County Attorney and the commissioners court, the opinion's bottom line at the time was that a county bond election under article III, section 52(b) or (c) could fund work on city streets, but the spending had to stay inside the constitutional box: the streets had to be an integral part of or a connecting link to a county road or state highway, and the city had to consent. The opinion also told the county that it did not need to take the extra step of buying the roads or asking the city to disincorporate to do this. For city officials hoping the 1999 statutes had widened the county's authority, the opinion meant the answer was no; the AG read those statutes as unable to overcome the constitutional requirement. And the opinion left the practical determination, whether the specific Sterling City streets qualified as integral parts or connecting links, to the commissioners court as a fact question rather than deciding it.

Common questions

Q: Can a Texas county spend road bond money on streets inside a city?
A: Yes, but only on city streets that are an integral part of, or a connecting link to, a county road or state highway, and only if the city consents. The AG read article III, section 52 and the Breckenridge case to limit county road bond spending to county roads, which includes qualifying city streets.

Q: Does the county have to buy the city's streets first?
A: No. The AG found nothing in Breckenridge requiring the county to buy the streets or requiring the city to disincorporate. The integral-part/connecting-link test and the city's consent are what matter.

Q: Didn't the Legislature get rid of the integral-part requirement in 1999?
A: It tried, through Transportation Code section 251.012 and Government Code section 791.032, but the AG concluded those statutes cannot override the constitutional limits on road bond funds. A statute cannot amend a constitutional provision, so the requirement stood.

Q: Who decides whether a particular street qualifies?
A: The county commissioners court, as a question of fact in the first instance. The AG did not decide whether Sterling City's streets met the test.

Background and statutory framework

The question arose under Texas Constitution article III, section 52(b)(3), which authorizes counties to issue bonds for the construction and maintenance of roads. The controlling case was City of Breckenridge v. Stephens County, 40 S.W.2d 43 (Tex. 1931), which allowed county road bond funds to be spent on city streets that form integral parts of or connecting links in county or state highways, with the city's consent. Earlier authority on the city-versus-county control of coextensive roads came from State v. Jones, 18 Tex. 874 (1857), and the road/street distinction from Williams v. Carroll, 182 S.W. 29 (Tex. App.-Beaumont 1915). The AG relied on its own prior opinions JC-0036 (1999) and GA-0576 (2007), which read article III, section 52(b) and (c) funds as usable only for county roads. The 1999 statutes the county invoked were Transportation Code section 251.012(a)(4) and Government Code section 791.032, enacted by House Bill 508, 76th Legislature. The principle that a statute cannot override the constitution came from Mears v. State, 520 S.W.2d 380 (Tex. Crim. App. 1975). The public-purpose discussion in the footnote drew on Edgewood Independent School District v. Meno, 917 S.W.2d 717 (Tex. 1995), and article III, section 52(a).

Citations and references

Constitutional and statutory provisions:

• Tex. Const. art. III, § 52 (county bonds for roads; public-purpose limit in § 52(a))
• Tex. Transp. Code § 251.012
• Tex. Gov't Code § 791.032
• Tex. H.B. 508, 76th Leg., R.S. (1999)

Cases:

• City of Breckenridge v. Stephens Cty., 40 S.W.2d 43 (Tex. 1931)
• State v. Jones, 18 Tex. 874 (1857)
• Williams v. Carroll, 182 S.W. 29 (Tex. App.-Beaumont 1915), modified, 202 S.W. 504 (Tex. 1918)
• Mears v. State, 520 S.W.2d 380 (Tex. Crim. App. 1975)
• Edgewood Indep. Sch. Dist. v. Meno, 917 S.W.2d 717 (Tex. 1995)

Prior AG opinions referenced: GA-0576 (2007), JC-0036 (1999), JM-892 (1988), H-345 (1974), LO-97-084.

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0311
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2020/kp-0311.pdf

Original opinion text

June 1, 2020

The Honorable Lilli A. Hensley
Sterling County Attorney
Post Office Box 88
Sterling City, Texas 76951

Opinion No. KP-0311

Re: Whether a county may call a bond election to fund the construction, repair, improvement, and maintenance of city roads (RQ-0319-KP)

Dear Ms. Hensley:

You ask whether a county has authority to call a bond election pursuant to article III, section 52 of the Texas Constitution and use the funds "for the construction, repair, improvement, and maintenance of city roads without buying the city roads or having the city disincorporate[.]"[1] As background, you tell us that every road in Sterling City (the "City") needs some level of repair, recondition, or reconstruction. See Request Letter at 1. You also tell us the City does not have the necessary equipment or financial resources for the extensive amount of work required. See id. You state that the City asked Sterling County (the "County") to call a bond election for the county to fund the street construction and repair in the City. See id.

You call our attention to a 1931 judicial opinion, City of Breckenridge v. Stephens County, in which the Texas Supreme Court determined article III, section 52(b) authorized Stephens County to issue bonds with respect to county roads, and that roads located in a city could constitute such if integral to a county road. See Request Letter at 2; see also City of Breckenridge v. Stephens Cty., 40 S.W.2d 43, 43-44 (Tex. 1931). In light of certain statutory changes subsequent to the Breckenridge opinion you question whether article III, section 52(b) still imposes the "integral part of or a connecting link" requirement. Request Letter at 2.

Given the jurisdiction of counties and cities over their respective roads and streets,[2] some variant of your question has been the subject of judicial and attorney general opinions since Texas's earliest days. See Report and Opinions of Attorney General 1914-1916 at 728. It is well established in Texas law that within the boundaries of a city, the city's authority over its streets generally prevails over the county's authority over county roads. See State v. Jones, 18 Tex. 874, 876-80 (1857) (discussing respective authority of city and county over coextensive roads). In the 1931 Breckenridge opinion, the Texas Supreme Court examined a county's authority under Texas Constitution article III, section 52(b)(3) to issue bonds for improvements to a street within a city and concluded that "the commissioners' court does have lawful authority to expend county road bond funds for the improvement of city streets where such streets form integral parts of county roads or state highways, when such improvements are made . . . with [the city's] consent or approval." City of Breckenridge, 40 S.W.2d at 43-44 (stating further that a commissioners court has authority to expend road district bond funds "on such town or city streets where such streets are parts of and form connecting links in county or state highways"); see TEX. CONST. art. III, § 52(b)(3) (authorizing counties, among other political subdivisions, to issue bonds for the construction and maintenance of roads). Subsequently, numerous attorney general opinions have opined about the integral part/connecting link requirement. See, e.g., Tex. Att'y Gen. Op. Nos. GA-0576 (2007), JC-0036 (1999), JM-892 (1988), H-345 (1974); Tex. Att'y Gen. Op. LO-97-084. In particular, Opinion JC-0036 read the Breckenridge opinion to say that "proceeds of bonds issued or taxes levied pursuant to article III, section 52(b) or (c) may . . . be used" only for county roads. Tex. Att'y Gen. Op. No. JC-0036 (1999) at 10-11. Opinion JC-0036 concluded that article III, "section 52(b) and (c) funds may not be used to improve city streets unconnected with county roads under section 251.012" of the Transportation Code. Id. at 11.

Subsequent to JC-0036, the Legislature enacted provisions in the Transportation Code and Government Code intending to do away with the integral part/connecting link requirement. See House Comm. on Urban Affairs, Bill Analysis, Tex. H.B. 508, 76th Leg., R.S. (1999). First, Transportation Code subsection 251.012(a)(4) authorizes a county to "spend county money to finance the construction, improvement, maintenance or repair" of a municipal street allowed under section 791.032 of the Government Code "if the commissioners court finds that the county will receive benefits as a result of the work." TEX. TRANSP. CODE § 251.012(a)(4). Second, section 791.032 of the Government Code authorizes an interlocal contract between a city and a local government such as a county to finance the construction, improvement, maintenance, or repair of streets in the municipality, "including portions of the municipality's streets . . . that are not an integral part of or a connecting link to other roads or highways." TEX. GOV'T CODE § 791.032. You suggest these provisions indicate that the Legislature "has shifted away from the narrow interpretation" of Breckenridge. Request Letter at 2. However, as this office recognized in 2007, these statutes do not "overcome the constitutional requirements imposed upon the use of road bond funds under article III, section 52(b) and (c)." Tex. Att'y Gen. Op. No. GA-0576 (2007) at 2 n.2; see also Mears v. State, 520 S.W.2d 380, 382 (Tex. Crim. App. 1975) ("Statutory rules cannot abrogate constitutional requirements."); Tex. Att'y Gen. Op. No. JC-0036 (1999) at 10 (acknowledging that a statute "cannot amend a constitutional provision"). Therefore, absent amendment to article III, section 52(b) and (c), we conclude, consistent with JC-0036 and GA-0576, that those provisions still require county bond proceeds issued thereunder to be spent on county roads. Accordingly, county bond proceeds under article III, section 52(b)(3) may be used to construct, repair, improve or maintain city streets if the city consents and the streets are an integral part of or a connecting link with a county road or state highway system.

You tell us that "most if not all" streets in the City are integral because they connect to a main thoroughfare. Request Letter at 1. The question whether a particular municipal street is an integral part or a connecting link is a question of fact to be resolved by the county commissioners court in the first instance. See Tex. Att'y Gen. Op. No. GA-0576 (2007) at 3. This office has recognized that "[i]f a street is an integral part of a county road or state highway, it need not be a connecting link; conversely, a connecting link need not be an integral part of a county road or state highway." Id. Nothing in the Breckenridge opinion suggests that a county must buy the streets in question or that a city must disincorporate to satisfy article III, section 52(b) or (c). Indeed, factually the integral part/connecting link issue would only arise when the roads in question are coextensive, i.e., are within the territory of both the city and the county and subject to the city's control. Yet, the Breckenridge opinion and the opinions following it require only that the coextensive roads be an integral part of or a connecting link to a county road or state highway. See City of Breckenridge, 40 S.W.2d at 43-44.

Thus, a county may call a bond election under article III, section 52(b) or (c) and expend bond funds for the construction, repair, improvement, and maintenance of county roads located in a city if the county has municipal consent and it determines that the city streets are an integral part of or a connecting link to a county road or state highway.[3] Having satisfied those requirements, a county need not buy the roads and the city need not disincorporate in order for the county to expend bond proceeds on such city streets.

[1] Letter from Honorable Lilli A. Hensley, Sterling Cty. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Dec. 10, 2019), https://www2.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").

[2] "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." Tex. Att'y Gen. Op. No. JC-0036 (1999) at 1 (citing Williams v. Carroll, 182 S.W. 29, 35 (Tex. App.-Beaumont 1915), modified on other grounds, 202 S.W. 504 (Tex. 1918)).

[3] You do not specifically ask about Texas Constitution article III, section 52(a). See Request Letter at 1-2. Generally, article III, section 52(a) limits public expenditures for private purposes. See TEX. CONST. art. III, § 52(a). However, "[a] transfer of funds for a public purpose, with a clear public benefit received in return" does not violate this prohibition. Edgewood Indep. Sch. Dist. v. Meno, 917 S.W.2d 717, 740 (Tex. 1995). "[P]olitical 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. JC-0036 (1999) at 5. In other words, a county may assist a city if the commissioners court determines the expenditure accomplishes a county purpose. Id. Assuming the commissioners court here determines the city streets are an integral part or connecting link, the expenditure of county bond proceeds likely also satisfies the county purpose requirement under article III, section 52(a). See id. at 6 (acknowledging that "an expenditure of county funds to improve a city street that is an integral part of or a connecting link with county roads serves a county purpose because such a street is a county road").

S U M M A R Y

A county may call a bond election under Texas Constitution article III, section 52(b) or (c) and expend bond funds for the construction, repair, improvement, and maintenance of city streets if the county has municipal consent and determines that the city streets are an integral part of or a connecting link to a county road or a state highway. Having satisfied those requirements, a county need not buy the roads and the city need not disincorporate in order for the county to expend bond proceeds on such city streets.

Very truly yours,

KEN PAXTON
Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

RYAN L. BANGERT
Deputy First Assistant Attorney General

RYAN M. VASSAR
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

CHARLOTTE M. HARPER
Assistant Attorney General, Opinion Committee