Case Information
*1 OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN GFRILD c. MAraN A”- . ..OYIL Earoh 6, 1939
Deer Sir:
Pour letter 0 is hereby ao- uest an opinion per- . In pars-aphs nuw k the following ques- pleted and paid ior release the land owner froze say lisbilitp b,y virtue of 8uoh appli- cation."
Also, by separate letter under date of February lOth, you desire this Department to subdt a contraot form *2 lion. 'L. J. GittInSer, LZorch 6, 1939, Pace 2
.agplIcoble under said act and particularly as provided
for In Seotion 5 thereof. Tho provi.sIon of Senate Bill Fo. 227, Chapter 214, Aots of 1935, 44th LeSlsleture, and seotlon 5 appllcablo, Is set forth In Vernon's,Annotated Texas Civil Statutes, 1925, under &tIole 165a-1, Sec- tion 5 and reads a8 follow:
-'The Commissioners' Courts of the, sever- al OOgIltd.08 may prOVidc for the construction of improvements on the lenas lyin: Mithln their rzcpective counties‘, in the naturo of farm tI3rraCe8, 'dikes,, ditches, soil and water reservoirs, and other soil and water conscrva- tion anZl erosion prevention services, assessing the landovmer with an aseess:nent not to exceed tile actual cost of'lobor, notarial, and fuel, and no charge shall be m&e for depreciation and/or other expenses. The amount so assessed against the lonaov.ner, shall bc and remain a lien upon and against the lands upon which such money was used for any or all of the Improvq- monts mentioned in this section.
_
"The'County Commissioners' Courts shall oonoult and advise with the County Farm Domon- strators, an&/or employ other capable and ox- perlenaed aGent or agents, In the application ,. and operation of this Act.
*The Commissioners' Court of the several counties cannot undertake the improvements hereon, unless the landovmer petitions said Sourt so to do. Said courts must enter into a written oontmot,v:ith the landoxner, for any and all,of the. improvements herein specified, provided that.no oontract can.Grant the lsnd- owner a perioci of moro than ten years from date of the contract Itsolf for payment.to the Commissioners' Courts of assessments agsinst said lanDo?;ner in makin% the said lm- provements, anti'provided further that Said as- sessments shall.,bear no interest until after ranturity, said contract form to be 6rm.n by the Attorney General's Department. Onlg.one contract oen be made with any individual land- ovmcr In any one calendar year, and not more *3 Bon. L. J. GIttin3or, Xarch 6, 1939, i'ilS,e 3
than Threa mnarca (c300.00) Dolln.rs'shall bo s;;ent per annum cn any one farm. Suoh contracts shall be filed and recorded In the office of tho County Clerk of the County In which the lanl is situated, and such filing shall serve to fix the lion on said land. Anyone receiving any benefits herounder mpct bo the owner of racer-: of such .lend on which
any impr6vonent.s hereunder are to be ma&e; provided further that nothing In this &t shall affect the existing statutes regard- Inp, InpounciInC; 2ater reservoirs."
The &poso of this provision in the act a8 ox$resscfi in tho onnctin~ oiause of the bill was to eon- fer on the Coxnissionors 1 Court of the several oounties authority g nrovitio for the construotlon of imgrove- ments on 1andS in thonnture of farm terraoes. Likea.
ditches and other servioos expressed; providing for landowners for the aonstruotion an8 mainten- e:sossing ence’oi such Improvencnts an8 ievices, under rules and regulations to be prescribed by the said conservation board; providing for the contribution by the landoxners for such improvements, enterins into contraots u:Ith the Commissioners' Court for same an& other purposes more or loss conneoted with the above.
It appears, In the r.cadinf: of Section 5 of said _ act, that the Commissioners1 Court shall enter into a .written contract with the landowner for any and all of the Improvements apeoified In said sot. The act requires tt,at such assessment be ma&e, that a contract be entered Into ana a lien retained, thereby securin.S the funds of . .the oounty emen'$ed In suah causes and which are to be -
paid bsok by the Individual landowner.
The primary and cardinal purpose of this enaot- ment was to create a fund an& provi8e vrhraby the oounty, throu,:h Its Coxmissionors' Court could, if it saw fit, exnanz a s'um of money or its equIv&eat In labor, material an; fuel to suoh a project, at the landownerPs roquest anG in suoh amount as not to exceed @JOO.OO -for the designated improvements in any one calendar year. Such sum available vrithout Interest and payments deferred, would be an in- duoement to having the work done by any landovmer who deeirea
Hon. L. J. Gittinger, %!aroh 6, 1939, 3360 4 to avail himself of the privilege.:The act Itself WI- dently contemplates that t!scounty shall perioim the Vsor!c and the latter part cf %wt10n 6 of the aot appears to leava it within the illscretion of We Co:~mlsslonera* Court to ;Icrr;lit rosa machinery, Vhcn not necessarily, in use on the. putlio roads, to be Us0a on private lands. for purposes expressed. :;uch provisions are as follows:~
Yin order to jZOViiS a fl13a In niti of the oonstruotion i,nil nsfntennnoe of the im- structures name;2 In ~cotion 5 provencnts~unci .of this bot, the Corn-lissioutirs~ Ccurt of aach
appropriate any amount up to twOnty-
gpy2;; YP er cant of the net collections mede In each suoh county of the motor vehialo liccnne Pees not to exo~ecl Twelve Thousand Xve ilunarca ($12,300.00) Dcllnrs.....Xoneys mnp be wIth~raV~n from saia fund under the dircc- tion of the Cor!;ilIssioners' Courts, and used for the purpcoss of purchasing, maintaining and re- PaIrInS machinery anG equipment, ani: furnishing labor, an& any 8uCh mnchinery so purchased by the county, an& any rosa maohinery oVXnad by the oountg an& not noc~noarlly U8Od on the publia roa&s, may be used on private lands for the purpose of constructing and maintaining the Improvements and structures In this Aot pro- vided .m
-The abovo provisions quotod, of tho Acts of the 44th Legislature, are to bo read with and considered in the 1IGht of the authdrity .cranted and as expressed In Artlole 23720, Bcviosd Civil Statutes, 1923, Aots Of 1931; 42na Legislature, Chapter 33, Sootion 4 of whiah cot reads:
"In the public service of conservI.nS the soil ferility of the lands Of the,County, the Commissioners' Courts shall havo the authority to co-operate with the land o-+!ners and tax- peyors of th.0 Corvlty In all judicious efforts for the preservation of the produotiveness of the 'soil from avoidable waste, anti 1008 Of pro- ductiveness of the soil from avoidable ?.aste, ana loss of productiveness of agricultural crops neces8aTy to the publia welfare, thr0U!#l pC+I’dSS- Ion to use the machinery and equipment that may *5 Eon. 3,. J. GIttIn5;or, Yorch 6, 1939, Pa5e 5
be mado available by the County for such pur- poses under vrritten contra&, and the County shall rcceIvo fro3 such landowners and tax- pnpl% COin?enSntlon, upon suoh uniform basis as IMY bo deencd cquilable, and proper, for the co-operation extended and nervices rendered, all suoh compensation or funds to the county to be paid into th:: Zoad an; Eridfe Fund of tl2e County; and the County Commissioners* .' Court may provide for payments from lando:;ners , and taxpayer5 of the County ot suoh stated IMervals,and In such amounts, as and when the County taxes are oolleoted, 3s gay be equitable, ,for the use of the equipment for the protec-
tion OS lands a&aInst contInuIn5 Imrseasurcble Injury throus:h soil erosion; provided that the Corz:issIoners' Court or representative thereof shll net Co upon the:lznZ oSany owner to ix- provlz?, terrace, proteot, or dltoh such lands until requested to do so In wrItIn by suoh mmer; and provided further, that the Commission- ers' Court or repre5enontIve thereof shall not be rquired to dossuch Improving, terracIn5, protecting, and dItchin unless such Court shall determine that suoh work is of some publio benefit and said Court elects to do the work.D The Act of the 44th Legislature bclnp, enaotcd after the ona last referred to and on the same penoral subject, its S>CCiKC $rovIsIons will control and prevail over the prior eat v:hcre Its provIsions are general - the two acts not necossarIly.contlIctin~. Suoh fu$ds advanced for labor, material and fuel fumnished under either provisionsof our statutes must be done by written con- traot and orders duly made ahd entered upon the minutes of said oourt.
In Volume 11, Tex. Sm., Pera. 95, p. 632, it Is said the authority of the Commissioners' Court as the 'governing bGdy.oS the uo,unty to make oontreots in its behalf Is str&ctly limited to that conferred either ex6rs6s- ly or by fair or neoessary implication by the Constitution and laws of the State. ,AlsO:
*%I dealing with the county, it Is necess- ary to have an express contraot with the Corn- missioners* Court and that court can only speak *6 EIon. L. J. CittInCsr, i.Virch 6, 1339, Pago'6
by and through its minutes and records." FerrIer vs. FZGI (Civ. 2.g.) 33.SA' 896,8.
Xe arc unable to extend the F-,?ort OS, the plain and unambiguous lenqa::e used In these enactncnts to In- clude an arrenpemnt cs expressed In your letter, portions of which aro 'above set forth. The act provides for:
*AsscssInC the landoT::ner with an access- ment . n
And unless a lanco?:ner desires to avail hI.mselS of this esecssrnsnt with payments deferred and withoutinterest, we can conceive of no sue h benefits added cr acoruin5 to his land by the use of county fund:: or amount assosscd, when his own money which would sdoquatoly pay for and provide said Inprovcmonts, Is v:lthiclC in escrow.
Ye find no Inhibition, of course, for the Com- misslocers'~ ^ourt to perforia said work after CeInC pctl- tioned, asseGsz=snt made end a contract entered Into, from accepting cash In payzst of the assessment prior to the m&in: of said lmprovc~ents.
It is, therefore, the opinion of this Department that the Commissioners Court would not be authorized to. construct or provide for tbo construction Gf inyovencnts as mentlonod In Article 165a-1, Devised Civil Statutes and ZectIon 5 thereof.by allowin cash as security &n lieu of n contmot retainin!:, a lien as provided therein and that it v:Guld be necessary that said lien, in all instances . where paymentsazre deferred; be filed and recorded.
In keeDing with this opinion end as per your re- quest;ve hGrelrrith.submlt a form oontraot, bearIn the ap- proval of this Dcyertmcnt, for such improvements as are desired to bo made under the prOviSiOnS cf Seid ATtiCk '165a-1, Devised Civil Statute s and as provided In Section .5 thereof.
Very truly yours