Untitled Texas Attorney General Opinion ( 1948 )

NEY NEIRAIL
TEXAS
August 6, 1948
Hon. W. R. Baldridge Opinion No, V-652
County Attorney
Denton County Rs: Authority of the Com-
Denton, Texas missioners'Court to
use the described road
bond funds to erect
bridges, culverts,and
approaches to connect
private property to
farm-to-marketroads.
Dear Sir:
Reference is made to your recent request
which reaall, in part, as Pollows:
'Pursuantto the provisions of ArtI-
cle 3, Section 52, sub-section (c) of the
Constitutionof Texas, and Article 752a,
R, C, S, 1925, (Acts 1926, 39th Leg., 1st
cas.* P. 23, Ch. 16, #1) an election was
held In Denton County, Texas, on the 5th
day of November, 1946, and the following
issue was carried by more than a two-thirds
majority, to-wit: 'For the issuance of road
bonds and the levy of ad valorea taxes In
payment thereof, to-wit, $25O,OOO road bonds
for,the purpose of,purchasing rights-of-way
and to pay all necessary costs and damages
Incident thereto," The bonds were issued
and sold and the proceeds were deposited
in a fund known as 'Right-of-wayfund,"
The said fund has been paptlallj consum-
ed and expended In purchasingrlght-ef-
way for farm-to-marketroads and In pay-
ment of condemnationawards*
910 title to the roads and right-of-
way aforesaid was placed in the State of
Texas, the State of Texas built the roads
and-has assumed the obligationto repair
and maintain said roads,
Hon. W. K, Baldridge, page 2 (V-652)
"As a result of the constructionof
the roads, drainage areas and ditch back
slopes, travel from the road to private
adjoining property became difficult and
impossible in some instances, At the re-
quest of some owners of adjoining private
propept7, some county commissionerserect-
ed culverts,bridges and driveways across
ditches conneotingprivate property with
the raadway O O o
* 0 0 I shall appreciate it very
much if you will give me your opinion as
to whether the County CommissionersCourt
can expend an portion of the said 'Right-
of-way Fund9 7derived from the sale of
bonds as aforesaid) for the construction
and erection of bridges, culverts and ap-
proaches connectingprivate property with
State designated and maintainedFarm-to-
market roads, I call your attention to
the fact that the bridges and culverts
are constructednot upon private propsr-
ty but in and upon the highway rlght-of-
way and in the aitche$ and drainage areas
of said right-of-way.
Article 66749-4 provides, in part, as follows:
"All further improvementof said
State Highway System shall be made under
the exclusive and direct control of the
State Highway Departmentand with appro-
priations made by the Legislatureout of
the State Righway Fund. Surveys, plans
and specificationsand estimates for all
further constructionand improvementof
said system shall be made, prepared and
paid for by the State Highway Department.
No further Improvementof said system
shall be made with the aid of or with any
moneys furnished by the counties except
the acquisitien of right-of-wayswhich
may be furnishedby the counties, their"
subaivialonsor defined road districts,
It is stated by the court In the case of Gab-
bert v. City of Brownwood, 176 S,W,(2d) 344 that:
"It is settled by the decisions that
Hon. W. K. Baldridge, Page 3 (V-652)
the last quoted statutory provision did
operate to transfer the former jurisaic-
tion of counties and/or county commis-
sioners' courts over state highways with-
in county limits to the State Highway Com-
mission.
The bond issue in question was voted for the
purpose of "purchasingrights-of-wayand tg pay all nec-
essary costs and damages incident thereto.
The Court, in passing upon this question in
the case of Fletcher v. Ely, 53 S.W.(2d) 817, writ re-
fused, lays down this well-settledproposition:
"That, when the voters thus speak,
the proceeds of the bond Issue are 'ear
marked' with the character of a trust
fund which may not be diverted to anoth-
er purpose or project, any such attempt will
be enjoined by a court of equity. The re-
sult thus obtained has been referred to as
having the binding effect and force of a
contract. Black v, Strength, 112 Tex. 188,
246 S.W. 79; 19 Rawle C. L. ppe 1163, 1164;
Roane County Court v. t'Brisn, 95 W. Va.
32, 122 S.E. 352, 355.
In view of the foregoing, It is our opinion
that the County Commisrianers Court may not expend any
portion of the said right-of-wayfund for the construc-
tion and erection of bridges, culverts and approaches
connectingprivate property with State designatedand
malntslnedfarm-to-marketroads.
SUMMARY
The County Commissioners1Court may
not expend any portion of the Right-of-
way Fund (derived from the sale of bonds)
for the constructionand arection of bridges,
culverts,and approaches connectingprivate
property with State designatedand maintain-
ed farm-to-marketroads. Fletcher V. Elg,
53 s,w.(2a) 817.
Yours very truly,
ATTORNEY GENERAL OF TEMS
Assistant