Case Information

*1 THEAYTORNEY GENERAL OFTEXAS

August 16, 1947 Hon. V. H. Sagebiel Opinion No. V-347 County Attorney

Gillespie County Re: Where a county pro; Fredericksburg, Texas cures a right-of-way for a farm-to-market

road wholly within two precincts, is it a county-wide project to beg paid from funds of the entire county, i Dear Sir: .

Your statement and request for an opinion ere

in part as follows:

"The population of Gillespie County, according to the last Federal Census is 10,670, and the.assessed valuation is ap- proximately $8,000,~00.00.

"The Conmissioners, who are also ex officio Road Commissioners, operate, build and maintain county roads individually~in their several precincts, each.out .of road building funds apportioned their precincts pro rata according to assessed valuations in their individual precincts. For in? stance, Precinat Number One, which includes the valuations of the city of Fredericks- burg, receives 37/100 of the total county road funds and spends about l/5 thereof in building and maintaining streets in the city of Fredericksburg. The other three precincts are apportioned 23/100, 22/100 and 18/lOO, respectively.

*A Federal farm-to-market road is be- ing surveyed under the supervision of the State Highway Department and the right-of- way must be procured. This highway is be- ing built in a section of the county.affect- ing only two of the Commissioners' Pre- cincts and is not in any way beneficial to the residents of the other'two precincts.

Hon. V. H. Sagebiel - Page 2 (V-347)

"Under these facts is the procuring of the right-of-way a matter to be paid for out of the funds of the precincts in which the farm-to-market road is being constructed, or is it a county-wide pro- ject for which all the Commissioners pre- cincts must provide funds?"

The question imaediately arises as'to what 'interpretation and effectshall be given Article 6740, V.C,S., which reads in part as follows:

"The commissioners court shall see that the road and bridge fund of their county is judiciously and equitably ex- pended on the roadsand bridges of their county, and, as nearly as the condition and necessity of the roads will permit, it shall be expended in each county com- missioners precinct in proportion to the amount colleoted in such'precinct,"

In regard to similar situations involving State highways, it is well settled that the Comtnission- ers' Court may look to the entire county for funds to procure a right-of-way that affects only one precinct. Shivers v. Stovall, 75 S.W. (2d) 276, affirmed 103 8.W. @;~i5;~~)Garland v: Sanders, 114 S.W. (2d) 302 (writ

The principles and theories in relation to

a nfarm-to&rketW road are just the same. It is stated in the Shivers case that:

"These provisions of the law, as well as others which might be mentioned, clearly contemplate that the aommissioners court of each county shall regard.the roads and hiph- ways of the county PS a system, to be laid out, changed, repaired, improved, and main- tained, as far as practical,as~ a whole to the best interests and welfare of all the p pie of the county_ It is olearly con- tE:plated that all riads and bridges.of the county shall be maintained, repaired, and imoroved when necessarv'" as the conditions may require, regardless*of the 3recinct in which same may be located,so far as the funds will equitably justify.

-.

Hon. V. H. Sagebiel - Page 3 ‘(V-347)

bridge fund acoording to any fixed mathe- matical formula, ana apportion same in aa- Vance for the purpose of being expended in From the above cited case, it is apparent that the court makes no distinction as to the type or classi- fication of roads in regard) to its construction out of the county road fund, Nor do the later statutes, Article 6674-20, V.C.S., and H, Bc No. 21 of the 50th Legislature, which deal specifically with nfarm-to-narketll roads, in any way change the above holding.

On the other hand, ‘it is elementary that the Commissioners* Court is the agency of the whole county with ,each commissioner responsible to more than his owns precinct, Iiis duties are county-wide; he must safe- guard the welfare of all the county, and in carrying out his powers of establishing and maintaining a county road system, the ‘aounty road fund may, be used in one or all precincts d.epending upon the needs of the county. This should not .be taken to mean, however, that it is manda- tory that the Commission&s* .Court should look to the whole oounty to procure the funds for a right-of-way. Article 6740, supra, clearly points out that, as nearly as .conditions will allow and as nearly as necessity will permit, the said funds shall be expended in specific pre- cincts in proportion to the amount collected therein. In this regard, also, the Shivers case, supra, explains:

n the commissioners court must give eif&i to said article 6740 except when the necessities of the roads and bridges re- quire a departure from it. That article re- quires that the road and bridge funds of all counties shall be judiciously and equitably expended. It further requires that such funds shall, as nearly as the condition and necessity of the roads will permit, be ex- pended in each commissioners precinct in pro- *4 Hon. V, H, Sagebiel - Page 4 (V-347)

portion to the amount collected in such pre- cinct, The dominant purpose of this statute seems to be to require that the road and bridge fund shall be expended in each commis- sioners precinct in porportion to the amount avoided except In oases or oonditions of neosssitg, Of oourse, the commissioners court has the right to exercise its sound judgment in determining the necessity, but it cannot act arbitrarily in regard to such matter -* (Bnphas is supplied )

In view of the foregoing, it is our opinion that “each precinct shall prima facie be entitled to its own funds;” however, in “cases or conditions of neces- sity* the Commissioners’ Court in “its sound judgmentW may expend funds allocated to one precinct in another precinct. In other words, this matter must be decided by the Comuissioners’ Court, and so long as said Court exercises its best judgment and does not act arbitrar- ily in regard thereto, its findings will not be dis- turbed.

Under the facts submitted, the cost of procur- ing the right-of-way for the farm-to-market roads should be paid for out of the funds allocated to the two pre- cincts in which the roads are to be located, unless the Commissioners1 Court in its sound judgment finds, by proper court order, that this is such a case, or condi- tions are such, that the funds allocated to one precinct or precincts should be expended in another precinct or precincts,

SuA5!44RY The cost of procuring a right-of-way for a farm-to-market road should be paid for out of funds allocated to the precincts in which’the road is to be located,‘unless *5 Ron, V,. II, Sagebiel - Page 5 (V-347)

the Oommissioners~ Court in its sound udg- mant finds; by proper court ora&,, tha i conditions are such that~ the fur&as all?- cated. to one: precinct or precincts should be expended in another .precinot or pre- cAgtsM~ (Shiv(rrs vI &tovall, 103 WVR (2d)

,. Very truly y.ours JHR:djm:wb

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