Case Information
*1 Hon. Brady Gentry, Chairman Opinion No. O-42% State'Highway Commission Re: Whether or not it Is manda- - _ tory for State Highway Commission Austin,,Texas
to accept funds tendered it under the County and District Road Bond Assumption Law. Dear Sir:
We acknowledge receipt of your request on the ques- . _ - -- tion herein stated.. Your request is as follows:
18Reference.is made to paragraph 4 of Section 6-A,.Acts of the,First Called Session of the 47th Legislature, and;particularly>to that part of paragraph 4 wblch.reads:
. t8C**** and where such bonds or warrants were
voted prior to January 2. and prior to the designation.of the road-as a-State Highwayand which have'not yetbeen issued or expended, the county or def&ned road district may issue such bonds or warrants or other legal evidence of in- debtedness and place the-proceeds Z.n escrow with the State Highway Commission for the construction of such road under.plans, contracts, specifica- tions and supervision of the State Rlghway.Depart- me&, and when~so expended the bonds warrants or other evidences of Indebtedness shali be eligible to participate ln,.the.Coirnty and Road District: Highway Fund the same as If the bonds, had been is- sued and. expended prior to January 2, 1939****' ,UFrom the above wordi&;it will be seen that under. certa5neondltlons:therein outlined, county funds may be .expended.by.the State Highway Depart- ment on designated State Highways after which county bonds, warrants and.other i egal -evidences of indebtedness become eligible for participation in the county and road dl.stri.ct Highway Fund. The references to .the Highway Commission and Highway Department have raised in our minds the following questions, on which we would be pleased to have your opinion: First, does the act require the Highway Commission to accept all funds coming within *2 Hon. Brady Gentry, page 2
the paragraph referred to which may be tendered to it by ~kounties, and expend such funds in the construction of the destgnated roads, or does the act confer upon the Highway Commission discretion to determine which, if any, county funds will be accepted and expended and which shall not be accepted and expended?" The answer to your request necessarily depends upon whether or not the quoted portions of the County and District Road Bond Assumption Law is an expressed grant to the counties of'the power to determine when, where and how State Highways shall be constructed. This is true because if it is mandatory that the State Highway Commission accept all funds tendered it by the various counties such would be the necessary result.
The 38th Legislature of Texas authorized the State Highway Commission to take over and maintain the various State Highways. The effect of this Act was to vest in the State High- way Commission all the power with reference to State Highways that was formerly exercised by Commissioners' Courts. State Highway Commission v. Humphreys, 58 S.W. (2d) 144. Therefore the State Highway Commission has the sole power to determine when and where highways will be located, (Mosheim v. Rollins, 79 S.W. (26) 672 Andy City of Wichita Falls v. Real Estate Trust, S.W. f2d) 7361, and the individual counties of the State have no right or power to construct and maintain State IIighways. Iverson v. Dallas County, 110 S.W. (2d) 255.
The counties were permitted to aid in the construc- tion of State Hlghways by the Acts of 1925, Article 6674c, Re- vised Civil Statutes but the 42nd Legislature, 3rd Called Session, page 115, oh the Acts of 1932, repealed said Article and thereafter the counties could do nothing in regard to State Highway construction, except procure rights-of-way under Article 6674n, Revised Civil Statutes.
The p&?tifbn,of the enactmentunder consideration only authorizes the aounties to issue.the..bopds,which were voted -. prior to SBnuary 2, 1939, and prior to the designation of the road as a State highway. It is a grant to the counties, whose bonds will qualify, of the power to assist in highway construc- tion subject to the plans, contracts, specifications and super- vision of the State Highway Department.
From the time of the creation of the State Highway Department it has always had complete and exclusive powers to *3 Hon. Brady!Gentry, page 3
determine all questions relating to State Highway construc- tion and we do not regard the enactment here in questionas being a mandatory order to the State Highway Commission to accept the funds and build the highway authorized by the bond issue.
You are, therefore, advised that the State Highway Commission may determine which county funds it will accept and expend for State Highway Construction.
Trusting that the foregoing fully answers your in- quire, we are
Yours very truly ATTORNEY GENERAT, OF TFXAS By /s/ Richard H. Cocke Richard H. Cocke, Assistant APPROVED DFC la, 1941
/s/ Grover Sellers
FIRST ASSISTANT ATTORNEY GERERAL
APPROVED: OPINION COMMITTEE
BY: BWB,CHAIRMAN
RHC:db:wb