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Administrative/Government Law No. 01-1054, 6/26/2003. Click here for the full text of this decision FACTS: In this municipal annexation dispute, the court considers whether a county commissioners court may petition a city to include portions of its county’s roads within that city’s extraterritorial jurisdiction 1. pursuant to the Legislature’s grant of “general control over all roads,” seeTexas Local Government Code �81.028(5); or 2. as agent of the state of Texas. The city of Boerne sued the city of San Antonio, seeking a declaratory judgment that overlapping extraterritorial jurisdiction belonged to Boerne, not San Antonio. Boerne also sought a permanent injunction prohibiting San Antonio from asserting jurisdiction over the contested land area. Based on stipulated facts, the trial court ruled that the overlapping property was validly within Boerne’s extraterritorial jurisdiction before the San Antonio Ordinance went into effect. The trial court’s judgment also provided that as of Dec. 28, 1987, the effective date of the Boerne ordinances, Boerne had exclusive control over the overlapping extraterritorial jurisdiction. The judgment “permanently enjoined [San Antonio] from asserting any jurisdiction or authority, or attempting to enforce its ordinances, rules and/or regulations, over the area declared to be the exclusive extraterritorial jurisdiction of [Boerne].” San Antonio appealed the trial court’s judgment and argued, among other things, that the Kendall and Comal county commissioners courts lacked authority to petition Boerne to include segments of their counties’ roads within Boerne’s extraterritorial jurisdiction. The court of appeals affirmed the trial court’s judgment, holding that “county commissioners, as agents for the State, were empowered to petition for inclusion in the extraterritorial jurisdiction of Boerne.” HOLDING: Reversed and remanded. The court concludes that the Legislature’s grant of general control over the roads does not include the power to petition a city to annex certain portions of a given county road. If, as Boerne contends, “general control” is read to include the power to petition for annexation, then there would have been no need for the Legislature to illustrate in subsections one through four the types of specific power a commissioners court may utilize pursuant to �81.028. Because a commissioners court’s power is limited to that which is expressly delegated to it by the Texas Constitution or Legislature, or necessarily implied to perform its duties, the court will not read the Legislature’s grant of general control to be more expansive than the type of powers set forth in �81.028. Section 81.028, when construed as a whole, “clearly contemplate[s] that the commissioners court of each county shall regard [public transportation] as a system, to be laid out, changed, repaired, improved, and maintained, as far as practical, as a whole to the best interest and welfare of all the people of the county.” Canales v. Laughlin, 214 S.W.2d 451, (Tex. 1948). When the court construes a commissioners court’s express power under �81.028, the court focuses on the statute’s transportation and safety aspects. The court holds that the Legislature intended to limit a commissioners court’s authority under �81.028 to matters relating to public travel. A commissioners court’s actions are thus sanctioned under �81.028 only if related to its duty to protect the public’s interest in transportation. Unless the power to petition for annexation is necessary for a commissioners court to carry out that function, the court will not imply that it has such power. Here, the power to petition for inclusion in a city’s extraterritorial jurisdiction is neither expressly conferred nor necessarily implied to enable a commissioners court to perform its delegated duty to provide safe roads for public travel. The court rejects Boerne’s broad construction of the phrase “general control” and holds that a county’s commissioners court is without authority to petition for annexation of its county roads under �81.028. Nothing in �42.022(b) clearly permits a commissioners court, purportedly acting on behalf of the state, to advance purely provincial concerns for a subset of the counties’ landowners. Because a commissioners court has only those powers expressly conferred or those powers necessarily implied from other grants of power, the court holds that a commissioners court is not entitled, as agent of the state, to petition a municipality for annexation. OPINION: Jefferson, J.; Phillips, C.J., Hecht, Enoch, Owen, O’Neill, Schneider and Wainwright, JJ., join. Smith, J., concurrs in the judgment only.

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