Case Information
*1 ATTORNEY GENERAL OFTEXAS
Honorable BobMcCsmpbell opinion No. o-3137 County Attorney Re: Where a couuty purcheses a Cnaanche county ri@xt-of-wayfor a State ColzBnche, !cexas hi&way wholly within me
comnissioner's precinct, Dear Sir: can the purchese price be
pid by the whole county? And a related question.
Your recent request for an opinion of this departlaent upon tha questions as are herein steted has been received.
The questions presented in your inquiry are as follows: "1. Where the county purchases rif&t-of-way for State hi#nteywholly within one commissioner's precinct, can the purchese price ba p3ld~ by the whole comty?
We restate your secolzd qtusstlon as follows: 2. If the amwer to the above question Is yes, out of what fuud or fuuds COP the said purohese price be psfd4 Article 667kn, Vernon's Annotated Civil Statutes, reads, in part, a* follows:
Whenever, fn the jud~t of the' Stats Highways Com- missioh, the use or acquisition of any land for road, right of my purposescl, timber, earth, stone, gravel or other am- terlal, necessary or convenienttoaoyrosd tobe constructed, re-constructed, rmintained, widened, strai@ened or lengbh- ened, or land not exceedlngom hundred (100) feet in width for stream bed diversion in connection with the locating, re- loeating or conatructim of a designated S&ate HI&way by the Stete Highway Comaissfon, the sema asy be e~uired by purchase or ~cadet!metion by the Cobnty~C~~~iSSi~nerB Court. Provided #at the County in which the State EQhway Is located way pay for same out of the County Road and Bridge Fund, or any availa- ble countytids.
“Any Co~asloeers Court is hereby authorized to secure by purchase or by condemation on behalf of the State of Texas, any new or wider rl&t of way or land not exceeding one hmdred *2 Houorabla Rob McCampbell, page 2 (O-3137)
(100) feet in width for strean bed diversion In counection with the locetlng, rclooatlng or cc?latmlet1ox! of a desig- nated Et&a Eiginmy, or land or Lauda for lasteris or bor- row pits, to be used in the couatrwticm, recmmtructiou, or zdntenesce ofStsteHi@xwsys andtopeyfmthe aama out of the Cow&y Road end &id@ Fmd, or out og $n;l tpa- cfal road funds or any available comty funds. .
'ibe County Road and Rridm Fund proper is derived from the fol- lowing sources: county taxes, autombila registration fees, and all fines and forfeitures.
Disposition of that portiou of the Couuty Road and Brfdgu Fund consisting of automobile registration fees is goverued by Section 10 of Article 6675~~ Vernon's Auuotatad Civil Statutes. The pertinent provision of said Section reads as follows:
r,* * * . Bone of tha monies so placed to the credit of the Road and Bridge Fund of a county shall be used to pay the selery or compensation of any County Judge or Couu- ty Commlssimer, but ell said mouies shall be used for the con- structiou and asiuteneuee of lateral roads in such county under-the supervision of the County Rngineer, if there be one, and if there is no such engineer, then the County Com- missioners' Court shall heve authority to commud ~the ser- vices of the Dlvisim Rugineer of the State Hi&way Deprt- ment for the purpose of suparvislug the construction and surveying of lateral roads in their respective counties.
All fuuds aLlocated to the oouutics by the provisions of this Act (Art. 667!%-1to P. C. Art. ma) my 6673-14; be used by the counties fn the peymsut of obligetions, if any, Issued and incurred in the coustructicm or the im- provemat of all roads, tincluding State Highways of such counties and districts thareiu; or the improvement of tha roads couprising the Covoty Road system."
The case of Stovall vs. Ghivsrs, 75 8. W, (2d) 276, affirlaed (Corns. App.) 103 S. w. (2d) 363, on page 367 of the latter opinion, con- tains the followiug stateieent with respect to the above quoted sectiou:
"As to that portion of autoxwbile registmtiou fees retained .by Van Zandt County, Article 6@!%-10, Vernpn's Annotated Civil Statutes, expressly prov?des how sama shall be expeudad, and for that reason It is obvious that article 6740 has no application to same."
The purpose as stated iu Article 667!%-10 is tha "coustructiou and mainteuance of lateral roads" or "payment of obliggtions" incurred in the construction or,.~provemeut of all roads within the county. There
Honorable Rob MeCampbell., page 3 bO-3137)
is no formula for the spending of thfs perticKler portfon of the county Road and Bridge Fnnd. Article 6740 has no application, according~to the decision of Novell vs- Shivers, supra. The resyonsIbility for the proper expenditure of these funds rests primarily upcm tha Comm~lssfone~s~ Court. We qnote further from t&e above mantioned case as follows:
"Ry article 2342 of the Revised Statutes, it is provided that the'several commissioners, together with the county judge, shall. compose the 'commissioners court.' Such court is menffestly a unit, and is theagency of the whole county. The respeotive mambars of the commissioners court are therefore prfiParily representatives of the whole connty, and not merely represrntetives of their respective precfncts. Tha duty of the coiiLrrlssPoncrs court is to trsns- act the business, protect tie Interest, snd promote tba wel- fare of ,the county as a whole. A~gtbe puwers conferred ?qim swh COUPE by 8FtiCiC? :!.;:~>I a:- t.& Pdk~tnny: ,?Phe power to lay out adI estklblfab, ahmge am? discontfnua roads and highways) the mer to buitfl~. br;lg~, and keep them in repair, and the Rower to exercise genepal arr-;trol over all rosds, higtweyo, ferries, end brifiges in their counties.
They have the power ta levy 13 tar not to exceed 15 'cents on th% $100 valwtfon fog ~oels and b17:.dgeso This fund is, of course, for the benefit of ell roads and bridges of the con&y. These provisions of the Saw, as weiE as others which mi#.A be mvntfoned, clearly contemplate that the com- missioners court of each connty shall regard the reeds and highmys of the county as a system, to be laid out, changed repaired, improved, and mafntarned, as far as practlcel,, as a whole to tiw best interests and welfare of all the people of the county . It is clear2.y contemplated that all roads and brfdges of "he con&y shall be maintained, repaired, and improvedwben necessary, as the conditions my requke, re- gardless of tha precinct in which same may be located, so far as the fun3s WilL equitably jusLiiy.7'
As for that portion of the county Road and Bridge Fund con- sisting of county taxes, Article 6740, vernonus Annotated Civil Statutes, provides:
"'Tha commissioners court &all see that the road and brid~ge fund of their county is jndiciously and equitably expended on the roads and brfdges of their county, and, as nearly 8s the condition and necessity of the reads will permit, it shall be expended in each county cosnnissioners precinct in proRcu%fon to the amouut collected in such pre- cfnct. Money used in building parnmnent roads shall ffrst be used only on first or second4Lass roads, and on those which shall have the right of way furnished free of cost to
- a Honorable Bob McCampbell, pege 4 (o-3137)
mke ea rtraieprt a roud as 18 prclctlcable and having the gmatert btmw offered by the olti,senlr of may, labor or other prol?e*.*
This Article baa been ocmtrued by the gcmniaekm of Appaala of the Etete of Tows. gtovall vs. ghlvers, aupra.
We quote thewfrontas follow:
"It will be obwrved that the article in questlou provides thsttheroad audbridgefwdshallbe judi- cloudy and enpitably expended COI the roads and bridges of the county, and, as nearly aa the condition and neces- si+q oftheroadsuQlperarlt,shallbeexpaded in each county coxmisaioners precinct In prowrtion to the emount collected in such precinct. In our opinion, there i~ ob- vlowly nothing in this article which compels the comuis- sioners court to dl~ide the road and bridge fund according t~snyfixedwthweticalformula, andayportlon same In advance for the purpose of kfngexpemded in any given precinct. Theuseoftheword'exgended~toourminds cleerly suggests t$at said fwds shall be Bpporticmed and pid out from time to time as the neoesafby for their we $rp$s in the ordinary ad&nlatration of the cowty affairs
. "gotwithstanding this, the cowilaaiwers court must give effect to said article 6740 except when the necessi- ties of the roads and bridges re¶uire a departure from it.
That article reclnires thet the wad and bridge fwds of all couuties shall be judlciou~4 and Nuitably expended. It fur- ther requirei that such fuuda shall, a8 nearly as the condl- tlm and necessity of the rmds will permit, be expended In each cozemlasionercl precinct in proportion to the awwt col- lected in such precinct. The dominant pcrwse of this statute seems to be to rauire that the roadandbrldge fund shallbe eqended in each comnissiwers precinct in proportion to the amowt collected therein. In this regard, the statute means that each precinct shallpriw facie be entitled to Its own funds, and in the absence of any reasons to the contmry thay should be so divided and expmded. However, the duty to ex- pad the fwda in the groprtionabovewntlcnedisnotan absolutely iuflexible one. Thi6 is evident from the fact that the dominent.purpose of the statute,ls qualified to the extent that the court by clear implication is given the right to ex- pendthe roadandbrldge fund ina proportion other than In the proportion in which they are collected when the condition8 of the roads In the rcapective precinct6 creates a ncceseity 80 to do. We thinlc, however, that the requirewnt to expend the
Ecmorable Bob McCampball, mga 9 (O-3137)
fund in the proportion mentioned mot be avoided except in CBGCS or conditiona of necessity. Of course, the conmisslonere court has the right to exercise its sound jud@ne& In determining the necee- city, but it cannot act arbitrarily in regerd to such mtter."
In view of the above mentioued gtstutea and case, your first que3t1cm is respeotfully answered in the affirmtlve.
In reply to your second question, you are advised that it is our opinim that the Conanissioners ' court may secure the above llmltioned right-of-way in the nmuer provided by Article 6674n, supre, end "pey for the sore out of the Couuty Road end Br3rfdge Fued, or out of any special road funds, or any evcileble county %nda," es stated in Article 66741~. However, tM.3 Gtatute doe8 not authorize the Comdselcmers' Court to trans- far nmney from one constituticmel fund to another, or to expand, for one purpose, tax moeey rafred nstensibly for another purpose. The Cnnstitutlon prescribes the maximum rate of faxes for general purposes, for roads and bridges, for juries, end for pernmnent improvements, respectively. The moneys arising from taxes levied end collected fir each of the enumerated purwaes are ccmvtitutlonel funds. (Cerrollv. Williams, 202 g. W. 504; Tax. Jur., Vol. ll, p. 609). Neither can the Corenlasloners' Court trens- fer or expend noneye obteined by the iseuance and sale of bonds for any purpow other than the ;qecific purpose for which said moneys were raised end obtained by the issuance and sale of said bonds. We think the tern "evalleble county funds" ee uaed in the gtetute means such funds as have not bean relsed, collect&, or appropriated for a specific purpose.
Trusting that the foregofng fully ansfrers your inquiry, we are Yours very truly &q /a/ Ardell Williams Ardell Williams Assistant AW:RG:FC
/a/ OmAm c. l.!Am
ATTORaLPCEBERALQTEXAS