Untitled Texas Attorney General Opinion ( 1964 )

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THE ATTOWNEY GENERAL
EXAS
Honorable James E. Jeffrey Opinion No. C-302
County Attorney
Taylor County I Rer Whether a county is
Abilene, Texas authorized to expend
county funds in coop-
eration with the federal,
state and city govein-
ments to carry on a
continuing comprehensive
trsnsportation plan or
survey to acquire approv-
al for federal funds for
the construction of
highways in urban areas
under the Federal Aid
to Hi hways Act of .1962,
‘if (17 the survey Is
made completely within ;
the county, and (2’) the
survey is carried on to
some extent in an ad-
Dear Mr. Jeffrey: joining county.
You have requested the opinion of this off ice in regard
to the above subject.
Article 6663, Vernon’s Civil Statutes, vests control of
the State Highway Department in the State Highway Commission and
the State Highway Engineer.
Article 6673, Vernon’s Civil Statutes, provides that
the Commission Is responsible for the highways in Texas and that
the counties are free from any cost, expense or supervision of .P’
such highways.
Article 667h, Vernon’s Civil Statutes, defines’ certain
terms that are used throughout Articles 6674a-6674n, Vernon’s
Civil Statutes, by reciting:
“The term ‘highway’ as used in this Act shall
include any public road or thoroughfare or section
thereof and any bridge, culvert or other necessary
stru$ture appertaining thereto. The term I Improvement t
Hon. James E. Jeffrey, page 2 (C-302)
shall include construction, reconstruction or malnte-
nance, or partial construction, reconstruction or
maintenance and
the term ‘Department’ refers to the State Highway
Department. ” (Emphasis ours).
You will note that the term “improvement” not only
includes “construction, reconstruction or maintenance, or partial
construction, reconstruction or maintenance,” but It also,includes
“the making of all necessary plans and surveys preliminary thereto.”
(&nphasls ours 17
Article 66746, Vernon’s Civil Statutes, governs improve-
ment of the state’s highways with Federal aid. The aforesaid
article states :
commissioners’ court of any county unless and until
the plans and specifications for said Improvement
have been approved by the State Highway Engineer.
n . . . It (Emphasis ours).
The statute is divided into two categories of highway
iSprovement, to-wit: improvement with Federal Aid and improve-
ment without Federal Aid. In the instance of Federal Aid, the
statute clearlv snecifles that such lmnrovement “shall be made
under the exclusive and direct control of the State
ssma~ly th; Leogi:‘$%“““u; ofe
statute further states r that “surveys, plans, specifications and
estimates for all furt ;her improvement” shall b “made and prepared
by the State Highway Departmeniu. O%lD
hasis o&s). In the i nstance
of improvement “without Federal
---.~I Aid;” the statute’states that they
may be made with or withou It county aid. The statute also states
.
,.I
Hon. James E. Jeffrey, page 3 (C-302)
that when a county does participate, which would be in the case of
improvement without Federal Aid, it must be with the approval of
the State Highway Engineer.
The role of a county, :in highway Improvement, is further
limited by Article 6674q-4, Vernon's Civii Statutes, which recites:
"All further improvement of said State Highway
System shall be made under the exclusive and direct
control of the State Highway Department and with
appropriations made by the Legislature out of the
State Highway Fund. Surveys, plans and specifica-
tions and estimates for all further construction
and improvement of said system shall be made,
prepared and paid for by the State High y Depart-
ment. No further improvement cf said stttem shall
be made with the aid of or with any moneys furnished
by the counties except the acquisition of right-of-
ways which may be furnished by the counties, their
subdivisions or defined road districts. But this
shall in nowlse affect the carrying out of any
binding contracts now existingbetween the State
Highway Department and the Commissioners Court of
any county, for such county, or for any defined
road district. . . .
"(a) e . .
"(b) 0 e .
"(c) . * -8' (Emphasis ours).
The United States Court of Appeals for the Fifth Circuit,
in Bardin County, Texas v. Trunkline Gas Company, 311 F.2d 882
1963) 64 S DC0 49 cert. granted, 330 F.2d 789 (5th
original judgment re-entered and reaffirmed, stated
role of the commissioners court relative to highway
improvement and contracts pertaining thereto, saying:
"Basic Texas law dictates that in the absence of
a statute authorizing some other agency to contract,
the authority to contract on behalf of a county is
vested in the Commissioners' Court. Anderson v. Wood,
137 Tex. 201, 152 S.W,2d 1084. The contractual authority
of a Commissioners' Court is very limited and its limited
nature is well stated in Canales v. Laughlin, 147 Tex,
169, 214 S.W.2d 451, as follows:
'The Constitution does not confer on the Commis-
-Y44D-
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_.
Hon. James E. Jeffrey, page 4 (C-302)
.sioners Courts "general authority over the county
business" and such courts can exercise only such
powers as the Constitution Itself or the statutes
have "specifically conferred upon them." See
,Mills County v. Lampasas County, 90 Tex. 603,
40 S.W. 403, 404; Anderson v. Wood, 137 Tex. 201,
203, 152 S.W.2d 1084, 1085. While the commis-
sioners courtshave a broad discretion In exer-
cising powers expressly conferred on them,
nevertheless the legal basis for any action by
any such court must be ultimately found in the . :.
Constitution or the statutes.'
"Thus, if neither the Constitution nor
statutes emPower a Commissioners Court to make
a particular contract, the contract is null and
void.~ Nunn-Warren Pub11 hi C H t hi
Ety, Tex.Clv.App., 45sS.?2d0&'j:; A:d:ic??
Dallas County, Tex.civ.ADD.. 167 S.W.2d 560;
Baldwin v. Travis County-,-46 Tex.Civ.App; 149,
88 S.W. 480; and Dodson v. City of Del Rio,
Tex.Civ.App., 172 S.W.2d 125.
"Review of the Texas statutes relating to
State highways manifests that a Texas county
not only is not authorized to contract to
expending count . The statutes
and authorities the authority
of a county is limited to acquiring right-of-
way for a State highway." (Emphasis ours).
The authority of a'county in re ard to the acqulsltion
of rights-of-way is governed by Article 6873e-1, Vernon's Civil
Statutes, which states:
II
. . .
"The'various counties and cities aa
hereby,authorized and directed to acauire
sucn rlgnt of wa for such highways as are
requested and au horized by the Texas Highway_
Department, as provided by existing laws,
and In the event condemnation is necessary,
the procedure shall be the same as that set
out in Title 52,~ Articles 3264 to 3271,
inclusive, Revised Civil Statutes of Texas,
and amendments thereto.
-144X- .
Hon. James E. Jeffrey, page 5 (C-302)
II
. * * ' (Emphasis ours).
An examination of the statutes and court decisions
regarding highways reveals that the authority of a county is
limited solely to acquiring right of way, pursuant to the
request and authorization of the State Highway Department. The
statutes clearly recite t hat "allUfurther improvement" with
"Federal aid" shall be made "under the exclusive and direct
That pertain to highway improvement and planning specifically
exclude the counties, save-for their lim3ted roie in acquiring
right of ways. Therefore, a county is not authorized to expend
county funds to carry on a continuing comprehensive transportation
plan or survey to acquire approval for federal funds for the
construction of hi hways in urban areas under the Federal Aid to
Highways Act of.19 8 2, either within or without the county.
SUMMARY
A county is not authorized to expend county
funds in cooperation with the federal, state and
city governments to carry on a continuing compre-
,hensive transportation plan or survey in order to
acquire approval for federal funds for the construc-
tion of highways in urban areas under the Federal
Aid to Highways Act of 1962, either within or
without the county.
Yours very truly,
WAGGONER CARR
Attorney General
Assistant
RBJ:sj
-144&-
Hon. James E. Jeffrey, page 6 (C-302)
APPROVED:
OPINIONCOMMITTEE
W. V. Geppert, Chairman
Pat Bailey
Gordon Cass
Roger Tyler
Sam Lane
APPROVEDFOR THE ATTORNEY
GENERAL
BY: Stanton ,Stone
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