Untitled Texas Attorney General Opinion ( 1958 )

EA ORNEY GENERAL
OF TEXAS
Honorable George W. Morris Opinion No. WW-405
County Attorney
Montgomery County Re: Atithorityof e courit,y
to-re-
Conroe, Texas locate or rebuild fences,
cattle guards, and culvert-s
as a part of the corieider-
ation for the purchase of
right of way for a County
Road or a Farm to Market
Road.
Dear Sir:
Your request for an opinion states the foIlowing ques-
tions:
"Can Montgomery County, Texas, acquire
right of way by purchase, contract or otherwise
(except by condemnation proceedings) and legally
obligate itself to remove and re-establish and/or
rebuild the fences, cattle guards and culverts
where the work is the whole or a part of the
consideration for such new right of way or addi-
tional right of way secured by the county either
for itself or for and on behalf of the State of
Texas for Farm to Market Highways?"
Your letter indicates that the performance'of this ,work
by county employees, rather tlhanby an independent contractor en-
gaged by the property owner, will result in savings both ,tothe
landowner and the county. Further, you state that such a proce-
dure would eliminate delay In clearing ,thanew right of way for
future construction.
In Attorney General's Opinion No. O-1457, it was
stated:
"While right-of-way is acquired by
purchase, contract or other wise except by con-
proceedings, and the construction or
demriatiorl
rebuilding of t'hefence is ,thewhole or a part
of the consideration for such new rlg!!.t-of-way
or additional right-of-way secured by the county,
ther,the county ,wouldbe obligated t;ocarry out
its agreement with the landowner regarding the
re'buildingor construction of the fence accordLng
Honorable George W. Morris, page 2 (w-405)
to the contract or agreement had between the
parties."
We think the above statement to be sound, and adopt It
as our opinion in this case. Accordingly, the county may con-
tract with a landowner, as a part of the consideration for the
purchase or right-of-way, to replace the fence of the owner along
the right-of-way taken for road or highway purposes.
We do not think that the use of county labor and equip-
ment to satisfy this obligation constitutes the use of county
equipment for private purposes as condemned by Article 9780,
Vernon's Penal Code, and Rowan v. Pickett, 237 S.W.2d 734 (Tex.
Civ. App.), for the reason that this use of county employees and
equipment is in the furtherance of a lawful governmental func-
tion of the county, i.e. the building and maintenance of a system
of roads.
We would further point out that the funds used as con-
sideration for the purchase of such right-of-way may not be
taken from the Permanent Improvement Fund of the County. At-
torney General's Opinion V-831 (1949). The Road'and Bridge
Fund of the County should be used for this purpose.
The consideration for the work and labor done and
materials furnished by the county as a part of the purchase price
and consideration to be paid for the acquisition of the land in
question should be specifically set forth In the contract.
SUMMARY
A county may legally contract as a part of
the purchase price of right-of-way to relo-
cate or rebuild the fences along said right-
of-way caused by the widening or changing
of the road or highway. Said services should
be paid for out of the Road and Bridge Fund
of the County.
JHM:mg:pg:wc Yours very truly,
APPROVED: WILL WILSON
OPINION COMMITTEE Attorney General of Texas
Se0 s P. Blackburn, Chairman
J.C. Davis, Jr. By s/John H. Minton, Jr.
C.X. Richards John H. Minton, Jr.
John Reeves Assistant
REVIEWED FOR THE ATTORNEY GENERAL BY: W. V. Geppert.