Case Information
*1 Honorable Aileen Mitchell ;
County Auditor, Fort Rend Cbunty
Richmond, Texas ' - Dear Madam: OpinLon Ro. O-6834
Re: Whether the Colmnissioners' Precinct or County.can issue emergency warrants to cover the cost of a right-of-way for building a farm-to-market road by the State and Federal Government; and whether this would be consldered a permanent improvement. A-
This in reply to your request dated September 18, lgbs, which request reads as follows:-
"The quest%on has arisen whether the Co%nnission&s~ .__ Precinct can issue'emergency warrants to cover the cost of '. . . . the:kpunchase of.~rS.ght. of way for the building of farm&o
market roads by the State .and Federal Government, and whether.thls would.be consadered permanent improvement, and. " also whether the aounty would have authority to issue these .warrants. +* *"
In your request you ask ,three questions and~we will answer them in the order 1n;whlch they appear,tberein.
1. Can a.C6&ssioners1 precinct issue emergency . . warrants to.cover.the cost of the purchase of rights-of-way for the building of farm-to- market roads by the. State snd Federal Govern- .ments?
We have searched the .statutes and Constitution of this State and have been unable to find anv authorization for a commissioners.' ure- cinct tolssue any kind of warrants. Whetheremergency warrants can be issued for
2.
the purpose of purchasing rights-of-way and be paid from the Permanent Improvement Fund.
The nurpose of rights-of-way of publ:.c r&d s is i+ p;rt :J? the Z-036 systen'and must be paid from the Count::'s Roed nnd RrSc:se 1?und, ::I" cannot be paid.'out of tiie Permanent Llrproveaent Pund. Carrnl Y'; W!.lliams, 202 S.W. ~534.
. nonoraolc Hlleen ItiitchcJ.1, page 2 (Copy) O-U&j4 .,
the purchase of rights-of-way for,the bililding _ of farm-to-market roads by the State and Federal Qovernments.
The public policy relating to farm-to-market rends is Provided for in Artic lee 6673-c, j.Vernon's Annotated Civil Statutes, w;lich we quote:
"Section 4. The State Highway Commission is aut- horized to designate any county road In the State as a~ farm-to-market roajd for purposes of construction, recon- : struction, and maakenance drily, provided that the Corn--
missioners Court& the county in which any such County road is located shall pass and enter in itsminutes an order waiving any.rights such county may have for partici- pation by the state in any indebtedness incurred by the ,county the construction of such county road; and pro- vided further that the State Highway Commission and the Commissioners Courtof.%he county in which any such raod is located may en%er Into ,a contract that shall set forth the duties of the state in the construction, reconstruc- tion, and mainterqance of the county road in consideration T of the county ax-d/or road district relinquishing any and
all claims for state participation in any county, road district, or defined road district bonds, warrants, or other evidences of indebtedness outstanding against.such road for the construction or improvement of the road be- fore being*$signated bgthe State Highway:Commiss~on. . ,- .‘. . *. 'i - "Sec. 2. It & hereby de&red to.be the policy. of
the state that.the assumption by the state of the obl&a- tion to construct:'and malntaln such roads designated by the State HIghway Commission as farm-to-market roads under,the ,provisions of this Act constitutes fulLand complete com- pansation for any and all funds that might have &en ex- pended by any county, qoad district, or defined road dis- .~ trict in the construction and maintenance of said road prioz
to its designation by the'State Highway Commission as a farm- . . to-market road. '*.* * *" .
Article 6674n,~ Vernon's Annotated Civil Statuteq.is the s&utary authority authorizing the county to purchase highway rlghts- of-way and we quote, in Part, from said article:
"Whenever, in the'judgment of the State Highway Commiss5on, the use or acquisition of any land for road, right. of way purpPses, timber, earth, stone, gravel or .other material, nec.essary or convenient to any road to be constructed, reconstructed, maintained, widened, straightened or lengthened, or ,land not exceeding one hundred (103) feet in width for stream bed diversion in.. .* connectIon with.the locatling, relr\Cating or cpnst~ctjon of a des%gneted St&e Highway by the Sta~te HighWa:7 Come mission, the same may be ac'quired by purchase or condem- nationby the County CommLssioners- Court. Provided .that the County ir, which the State .Higimay is located mar P3Y for .same out of the County Rozd and Br'l.dse filno;'or an:?
a,r:*ilahle tiountyv fundz. *3 Honorable Aileen Ivlitchell, Page 3 o-6834
"Any Commissioners Court is hereby authorized to secure: by purchase or by condemnation on behalf of the State of Texas, any new or wider right of way or land not exceeding one hundred (100) feet in width for stream bed diversion in connection with the locating, reldcating or construction of a. designated State Highway, or iiand or lands for material or borrow pits, to be used ) the con- struction, reconstruction or maintenance of Sts&e High- ways and to pay for the same out of the County Road and Bridge Fund, or out of fny special roa~d funds or any available county funds.
Since the Commissioners' Court has the statutory 'authority to purchase rights-of-way, the Commissioners' Court has the implied authority to issue interest bearing warrants for the purpose of purchasing rights- of-way. Lassiter v. Lopez, 217 S.W. 373. The manner of issuing said warrants is controlled by the provisions ~of Articles 2368a.
In your request for an opinion you do not state any facts from which this department can determine whether the county would be authorized to issue emergency warrants: Tne secondiparagraph of Section 5 of Article 2368a, provides as follows:
"Provided, that case of public calamity caused by fire,.flood, storm, or to protect the public health, or in case of unforeseen damage to public property,
machinery or equipment, the Commissioners' Court of the ' Boverning bodymay issue such time warrants as are neces-
sary to provide for the immediate repair, preservation or .protection of public property and the lives and ,health of the citizens of such county or city, irrespective of the limitations contained in this Section and the restric- tions imposed by Sections 2,,3 and 4 hereof."
If the purpose for wh~ich you desire to issue emergency war- rants comes within the above quoted statute, then the county would be authorized to issuesaid warrants. .,.
Yours very truly,
ATTORNEY GENERAL OF TEXAS By s/ R.J. Long R.J. Long
Assista.nt
RJL:EP:wc
APPROVED OCT 18, 1945
s/ Ca~rlos C. Ashley
FIRST ASSISTANT
AlTORNEY GENERAL