It appears that the &nd Legislature, at its Rrgulsr Session in 1931, In Senate Bill No. 197, granted pormiaaion to W. S. Hale and Wife, M3ry D. Hale, to use the State of Texds and the State Highway Commiasion for damages occasioned to the landa be Sing to the Hales, by reason of the construction of State Highwe, No. 4 in such manner as to over flow and Y otherwise damage the Hale land. Suit was filed and judgment rendered for

the Hales agalnst the State of Texas. (See State v. Hale (Texas) 146 S. W (2d) 731) 7

No reason occurs to us, and none has been suggested, why the Legislature may not appropriate from the State Highway Fund to pay this judgnmnt. The State Highway Fund is available for the payment of the expenses Incident to the establishment, construction and maintenance of State Highways. 'The State has vested in the State Highway Commission full authority, and charged it with the duty to designate, lay out and construct public high- ways. It has the right, aa the agent of the State, to take, damage or destroy private property T>r public use. This right has been guaranteed by our Constitution. Public Xo:!ds are a great public convenience, and, if necessary to carry out plans for the completion of a public road, pr?.F%te property mq~ be totally or partially taken or damaged to accomplish that purpose. This carries with it the power, if need be, that a servitude may be created on land not actually taken or occupied by the public highway, for the purpose of carrying off,the water, the natural flow of which is changed or diverted by theconstruction of such highway." (State v. Sale, supra) It is clear that the comperxat'ionof :persona for property "taken" *2 Honorable W. 0. Reed, page #2 (O-3245)

for public highway purposes, as In the Hale case, i~,a,n expew. incident to the establishment, construction and main~;~;~~n~e~oL C$ijte K;&ays. No question, therefore, can arise as to'heappiopriation being an unconstitutional diversion of a special fund. The application of a portion of the fund to the satisfaction of this judgment Is but the application of that portion of the fund to one of the very purposes for which the fund was created.

You are advised that, in our opinion, the Legislature has "bhe power to appropriate from the State Highway Fund moneys to pay the judgment rendered against the State of Texas ln the case of W. S. Hale, et ux, v. The State of Texas, et al.

Yours very truly, AlTORNEY 0ENERALOFTEEP.S s/Richard W. Fairchild BY Richard W. Fairchild Amslstant RWF:ep/ldw

APPROVED MAR. 13, 1941

a/ GEIIALD c. MANN

ATTORNEY CEXEBALOFTEXAS

APPROVED OPINION COMMITTEE

By B. W. B.

CHAhMAN