Can a Texas county use road bond money on a city street that connects to a county road on only one end?

TX AG Opinion GA-0576: Can a county use road bond funds on a city street that touches a county road on only one end?

Plain-English summary

Texas counties can issue road bonds under article III, section 52(b) and (c) of the state Constitution to build, maintain, and operate roads. The constitutional text talks about roads and turnpikes without spelling out whether the money can be spent inside city limits. A 1931 Texas Supreme Court decision, City of Breckenridge v. Stephens County, filled that gap: a county may spend road bond funds on a municipal street only where the street forms an integral part of a county road or state highway, and only if the city consents. A 1999 Attorney General opinion (JC-0036) read Breckenridge to mean that bond proceeds may be used only for what amounts to county roads, with municipal streets qualifying if they are integral parts of, or connecting links in, a county road or state highway.

Galveston County wanted to use section 52 road bonds to improve streets in Tiki Island, Bayou Vista, Clear Lake Shores, and Jamaica Beach. Some of those streets connect to a county road or state highway on only one end. The county asked, through Senator Mike Jackson, whether Breckenridge and JC-0036 require a city street to touch a county road or state highway at both ends, or whether touching at one end is enough.

The Attorney General concluded that the county may use the road bond funds on a municipal street that is a connecting link in, or an integral part of, a county road or state highway, with the city's consent. A street is an "integral part" if it is necessary to complete or essential to the county road or state highway, and an integral street does not also have to be a connecting link. So a street connected on only one end can, in certain circumstances, be found to be an integral part and qualify for the funds. But whether any particular street is a connecting link or an integral part is a question of fact that the county commissioners court must decide first, not something the Attorney General can resolve in an opinion.

Currency note

This opinion was issued in 2007. 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, deadline, or remedy mentioned here.

Article III, section 52, the Transportation Code and Government Code provisions on interlocal financing of municipal streets, and the cited case law may have changed since 2007. Confirm the current law and any later opinions before relying on this analysis.

Who this opinion affected (as of 2007)

Galveston County and other county commissioners courts: The opinion told the county that section 52(b)-(c) road bond funds could be used on a municipal street if the street is a connecting link in, or an integral part of, a county road or state highway and the city consents. It also told the commissioners court that the threshold question, whether a given street qualifies, was a fact question for the court to decide in the first instance.

Cities served by the streets (Tiki Island, Bayou Vista, Clear Lake Shores, Jamaica Beach): The opinion explained that the county could spend road bond funds on their streets only with the municipality's consent, following City of Breckenridge.

Lawyers and officials reading Breckenridge and JC-0036: The opinion clarified that "integral part" and "connecting link" are two separate ways a street can qualify, that an integral street need not be a connecting link, and that a one-end connection can in some circumstances be enough to make a street an integral part.

Common questions

What does article III, section 52 let a county do?
It lets a county, with voter approval, issue road bonds (up to one-fourth of the assessed value of the county's real property) and levy taxes to pay them off, for the construction, maintenance, and operation of macadamized, graveled, or paved roads and turnpikes, or in aid of those roads.

Can the county spend that bond money on a city street?
Only if the street is a connecting link in, or an integral part of, a county road or state highway, and the city consents. That limit comes from the 1931 Breckenridge decision and Attorney General Opinion JC-0036, not from the constitutional text itself.

Does the street have to touch a county road or highway on both ends?
No. The opinion concluded that a street connecting on only one end can, in certain circumstances, be found to be an integral part of a county road or state highway. An "integral part" is a street necessary to complete or essential to the county road or state highway, and it does not also have to be a connecting link.

Who decides whether a particular street qualifies?
The county commissioners court decides that in the first instance. Whether a street is a connecting link or an integral part is a question of fact, and the Attorney General does not resolve fact questions in the opinion process.

Background and statutory framework

Article III, section 52(b) and (c) authorizes a county, on the required vote of its qualified voters, to issue bonds (not to exceed one-fourth of the assessed valuation of the county's real property) and levy taxes to pay them, for the construction, maintenance, and operation of macadamized, graveled, or paved roads and turnpikes, or in aid of those roads (Tex. Const. art. III, § 52(b)-(c)). The text does not expressly limit the funds to county roads, but the Texas Supreme Court held in 1931 that a county may expend road bond funds on municipal streets only where those streets form integral parts of county roads or state highways, and only with the municipality's consent (City of Breckenridge v. Stephens County, 40 S.W.2d 43, 43-44 (Tex. 1931)). Attorney General Opinion JC-0036 read Breckenridge to allow bond proceeds to be used only for county roads, with municipal streets qualifying if they are integral parts of or connecting links in a county road or state highway (Tex. Att'y Gen. Op. No. JC-0036 (1999) at 9-11).

The opinion treated "connecting link" and "integral part" as two distinct qualifiers. A street is an integral part of a county road or state highway if it is necessary to complete or essential to that road or highway (citing dictionary definitions and, by analogy, Gorman v. Consol. Edison Corp., 488 F.3d 586, 592 (2d Cir. 2007), which construed "integral" under the Fair Labor Standards Act). An integral street need not be a connecting link, and a connecting link need not be an integral part. Whether a particular municipal street is a connecting link or an integral part is a question of fact for the county commissioners court to resolve first (Tex. Const. art. III, § 52(b)-(c); City of Breckenridge, 40 S.W.2d at 43-44; Tex. Att'y Gen. Op. No. GA-0446 (2006) at 18 ("Questions of fact are not appropriate to the opinion process."); see also Terry v. Edgin, 561 P.2d 60, 66 (Okla. 1977)). In certain circumstances, a commissioners court reasonably may find that a street connecting with a county road or state highway on only one end is an integral part.

The opinion also noted, in a footnote, separate interlocal financing authority. Transportation Code section 251.012(a)(4) lets a county spend county money to finance work on a municipal street authorized under Government Code section 791.032 if the commissioners court finds the county will benefit, and section 791.032 allows a county to enter an interlocal contract with a municipality to finance work on municipal streets, including portions that are not an integral part of or connecting link to other roads or highways (Tex. Transp. Code Ann. § 251.012(a)(4); Tex. Gov't Code Ann. §§ 791.032, 791.003(4)(A)). The opinion observed that those 1999 statutes (see House Comm. on Urban Affairs, Bill Analysis, Tex. H.B. 508, 76th Leg., R.S. (1999)) cannot overcome the constitutional limits on the use of section 52 road bond funds (Southland Life Ins. Co. v. Barrett, 172 S.W.2d 997, 1000 (Tex. Civ. App.-Fort Worth 1943, writ ref'd w.o.m.)).

Citations

Constitution, statutes, and legislative materials:

• Tex. Const. art. III, § 52(b)-(c)
• Tex. Transp. Code Ann. § 251.012(a)(4) (Vernon Supp. 2006)
• Tex. Gov't Code Ann. § 791.032 (Vernon 2004)
• Tex. Gov't Code Ann. § 791.003(4)(A) (Vernon Supp. 2006)
• House Comm. on Urban Affairs, Bill Analysis, Tex. H.B. 508, 76th Leg., R.S. (1999)
• Tex. Att'y Gen. Op. No. JC-0036 (1999)
• Tex. Att'y Gen. Op. No. GA-0446 (2006)

Cases:

• City of Breckenridge v. Stephens County, 40 S.W.2d 43 (Tex. 1931)
• Southland Life Ins. Co. v. Barrett, 172 S.W.2d 997, 1000 (Tex. Civ. App.-Fort Worth 1943, writ ref'd w.o.m.)
• Gorman v. Consol. Edison Corp., 488 F.3d 586, 592 (2d Cir. 2007)
• Terry v. Edgin, 561 P.2d 60, 66 (Okla. 1977)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0576
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2007/ga0576.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain - the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

October 9, 2007

The Honorable Mike Jackson
Chair, Committee on Nominations
Texas State Senate
Post Office Box 12068
Austin, Texas 78711-2068

Opinion No. GA-0576

Re: Whether under article III, section 52(b) and (c) of the Texas Constitution a county may use road bond funds to construct, maintain, or operate a municipal street that connects on only one end with a county road or state highway (RQ-0598-GA)

Dear Senator Jackson:

On behalf of Galveston County, you ask whether under article III, section 52(b) and (c) of the Texas Constitution a county may use road bond funds to construct, maintain, or operate a municipal street that connects on only one end with a county road or state highway, in light of City of Breckenridge v. Stephens County and Attorney General Opinion No. JC-0036.[1] See City of Breckenridge v. Stephens County, 40 S.W.2d 43 (Tex. 1931); Tex. Att'y Gen. Op. No. JC-0036 (1999).

Article III, section 52(b) and (c) authorizes a county's use of bond funds to construct, maintain, or operate roads:

(b) Under Legislative provision, any county . . . , upon a vote of two-thirds majority of the voting qualified voters of [the county], may issue bonds or otherwise lend its credit in any amount not to exceed one-fourth of the assessed valuation of the real property of [the county], . . . and levy and collect taxes to pay the interest thereon and provide a sinking fund for the redemption thereof, as the Legislature may authorize, and in such manner as it may authorize the same, for the following purpose[] . . . :

(3) The construction, maintenance and operation of macadamized, graveled or paved roads and turnpikes, or in aid thereof.

(c) Notwithstanding the provisions of Subsection (b) . . . , bonds may be issued by any county in an amount not to exceed one-fourth of the assessed valuation of the real property in the county, for the construction, maintenance, and operation of macadamized, graveled, or paved roads and turnpikes, or in aid thereof, upon a vote of a majority of the voting qualified voters of the county, and without the necessity of further or amendatory legislation. The county may levy and collect taxes to pay the interest on the bonds as it becomes due and to provide a sinking fund for redemption of the bonds.

TEX. CONST. art. III, § 52(b)-(c).

Though article III, section 52(b) and (c) does not expressly limit the use of road bond funds to county roads, the Texas Supreme Court in 1931 concluded that a county may under article III, section 52(b) and (c) "expend county road bond funds" to improve municipal streets only "where such streets form integral parts of county roads or state highways," provided that the municipality consents to the improvements. City of Breckenridge, 40 S.W.2d at 43-44. In that case, City of Breckenridge, the court concluded that Stephens County had the right to improve a municipal street that "was a connecting link and integral part of a county road and state highway." Id. at 43, 45. Attorney General Opinion JC-0036 read City of Breckenridge to state 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. Under JC-0036, only municipal streets that are integral parts of or connecting links in a county road or state highway are county roads for purposes of City of Breckenridge.[2] See id. at 9.

Your question concerns Galveston County, which is contemplating using road bonds issued under article III, section 52(b) and (c) "to construct improvements on various" streets "located within the cities of Tiki Island, Bayou Vista, Clear Lake Shores[,] and Jamaica Beach."[3] By the word "improvements," we understand you to refer to the construction, maintenance, or operation of the streets. Galveston County is particularly concerned about using road bond funds to construct, maintain, or operate several roads that are connected to county roads or state highways on one end only. See Yarbrough Letter, supra note 3, at 1-3. It asks whether City of Breckenridge and Attorney General Opinion JC-0036 require that "the street must both begin and end at a county road and/or a state highway" or that "only one end of the city street must begin at a county road or a state highway regardless of where it ends." Id. at 3.

Under City of Breckenridge and JC-0036, a county may use funds from road bonds issued under article III, section 52(b) and (c) to construct, maintain, or operate a municipal street that is a connecting link in or an integral part of a county road or state highway. See City of Breckenridge, 40 S.W.2d at 43-44; Tex. Att'y Gen. Op. No. JC-0036 (1999) at 9. A street that is not a connecting link in a county road or state highway may be an integral part of a county road or state highway. A street is an integral part of a county road or state highway if the street is necessary to complete or essential to the county road or state highway. See THE NEW OXFORD AMERICAN DICTIONARY 881 (2001); cf. Gorman v. Consol. Edison Corp., 488 F.3d 586, 592 (2d Cir. 2007) (defining the term "integral" for purposes of the Fair Labor Standards Act) (quoting WEBSTER'S THIRD NEW INT'L DICTIONARY 1173 (unabridged 1986)). If 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.

Whether a particular municipal street is a connecting link in or an integral part of a county road or state highway is a question of fact that must be resolved in the first instance by the county commissioners court. See TEX. CONST. art. III, § 52(b)-(c); City of Breckenridge, 40 S.W.2d at 43-44; see also Tex. Att'y Gen. Op. No. GA-0446 (2006) at 18 ("Questions of fact are not appropriate to the opinion process."); cf. Terry v. Edgin, 561 P.2d 60, 66 (Okla. 1977) (concluding that whether a particular road or street is a connecting link in the county highway system is a question of fact to be decided on a case-by-case basis). In certain circumstances, a commissioners court reasonably may find that a street that connects with a county road or state highway on only one end is an integral part of a county road or state highway. Under City of Breckenridge, a county may use road bond funds to construct, maintain, or operate a municipal street only if the municipality consents. See City of Breckenridge, 40 S.W.2d at 43-44.

SUMMARY

If a county determines that a particular municipal street is a connecting link or an integral part of a county road or state highway, the county may use the proceeds of road bonds issued under article III, section 52(b) and (c) of the Texas Constitution to construct, maintain, or operate the municipal street.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

KENT C. SULLIVAN
First Assistant Attorney General

NANCY S. FULLER
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee

Footnotes

[1] See Letter from Honorable Mike Jackson, Chair, Committee on Nominations, Texas State Senate, to Honorable Greg Abbott, Attorney General of Texas (June 29, 2007) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter].

[2] Transportation Code section 251.012(a)(4) authorizes a county to spend county money to finance any construction, improvement, maintenance, or repair of a municipal street authorized 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 ANN. § 251.012(a)(4) (Vernon Supp. 2006). Section 791.032, Government Code, allows a local government, including a county, to enter an interlocal contract with a municipality to finance work on municipal streets or alleys, "including portions of the municipality's streets or alleys that are not an integral part of or a connecting link to other roads or highways." TEX. GOV'T CODE ANN. § 791.032 (Vernon 2004); see also id. § 791.003(4)(A) (Vernon Supp. 2006) (defining the term "local government" to include a county). Although Transportation Code section 251.012 and Government Code section 791.032 were added in 1999 in response to certain "attorney general opinions[] citing supreme court precedents," the statutes cannot overcome the constitutional requirements imposed upon the use of road bond funds under article III, section 52(b) and (c). House Comm. on Urban Affairs, Bill Analysis, Tex. H.B. 508, 76th Leg., R.S. (1999); see Southland Life Ins. Co. v. Barrett, 172 S.W.2d 997, 1000 (Tex. Civ. App.-Fort Worth 1943, writ ref'd w.o.m.) (stating that nothing in a certain statute could be relied upon to overcome the constitution).

[3] Letter from Honorable James D. Yarbrough, Galveston County Judge, to Honorable Mike Jackson, Chair, Committee on Nominations, Texas State Senate (June 20, 2007) (attached to Request Letter) [hereinafter Yarbrough Letter].