No. V-0089 (1947).

CourtTexas
Texas Attorney General Opinions 1947. No. V-0089 (1947). 1Mar. 19, 1947Hon. Clayton BrayCounty AttorneySutton CountySonora, TexasOpinion No. V-89Re: Authority of the County as agent for the State Highway Department to pay for condemnation awards for city property and a related matter.Dear Mr. Bray:Your request for an opinion of this Department is substantially as follows:
When State Highway Department has designated a route through an incorporated city of less than 5,000, having an active city government, does the County as agency for the condemnation in behalf of the Highway Department have to pay the condemnation award to the city property owners affected?
"The city had previously agreed informally to share the cost of condemnation within the city limits; now, the city pleads lack of funds for such project.
"I am familiar with the proposition that the County may, by agreement with the city, maintain a county road within the city limits but my problem is, as stated above, whether the County can be compelled to pay for the condemnation awards within the city limits on a designated State Highway Route, so routed and designated by the State Highway Department.
"Obviously, the damages under condemnation in a city would be greater where lots and homes are concerned than in the county proper where only acreage is involved.
"Also, does condemnation contemplate as compensable damage the expense of drilling a water well, moving a house, repairing incidental damage
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caused to the house by moving, and extending and reconnecting plumbing, and such related items of expense?"
The Supreme Court, in Norwood vs. Gonzales County, 14 S. W. 1057, held that a Commissioners' Court had no authority to lay out a highway within the corporate limits of an incorporated town. It was there said that "the circumstances under which a County Commissioners' Court may assume authority over the streets of incorporated cities, and control them as public roads, were defined, for the first time by the Act of the Legislature of March 14, 1885." The Act of 1885 referred to now appears as a part of the Revised Statutes of 1925, Article 6703, which as to that subject reads:
"Said Court shall assume and have control of the streets and alleys in all cities and incorporated towns in Texas which have no de facto municipal government in the active discharge of their official duties."
The above statute, by the clearest implication, denies such authority as to incorporated cities and towns that do have a de jure or de facto government. It therefore results that the decision in Norwood v. Gonzales County, supra, is not only affected by Article 6703, as it may apply to this case, but that statute shows a legislative construction in conformity with the Supreme Court's decision. (City of Breckenridge v. Stephens County, 26 S. W. (2d) 405.) The Stephens County case was later reversed by the Supreme Court (40 S. W. (2d) 43) but in so doing, the Court did not overrule the Norwood case as is clearly shown from the following quotation:
"Of course, the town or city governing board primarily has paramount jurisdiction of the streets and highways thereof, and the Commissioners' Court would have no authority to improve streets or highways within municipalities in conflict with the jurisdiction of the city to improve the same."
The Stephens County case related to a street constituting a State highway and...

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