Untitled Texas Attorney General Opinion ( 1947 )

THEAYTORNEY GENERAL
OFTEXAS
August 16, 1947
Hon. V. H. Sagebiel Opinion No. V-347
County Attorney
Gillespie County Re: Where a county pro;
Fredericksburg,Texas cures a right-of-way
for a farm-to-market
road wholly within
two precincts, is it
a county-wideproject
to begpaid from funds
of the entire county, i
Dear Sir:
.
Your statement and request for an opinion ere
in part as follows:
"The population of Gillespie County,
according to the last Federal Census is
10,670, and the.assessedvaluation is ap-
proximately$8,000,~00.00.
"The Conmissioners,who are also ex
officio Road Commissioners,operate, build
and maintain county roads individually~in
their several precincts, each.out.ofroad
building funds apportionedtheir precincts
pro rata according to assessed valuations
in their individualprecincts. For in?
stance, Precinat Number One, which includes
the valuations of the city of Fredericks-
burg, receives 37/100 of the total county
road funds and spends about l/5 thereof in
building and maintaining streets in the
city of Fredericksburg. The other three
precincts are apportioned 23/100, 22/100
and 18/lOO, respectively.
*A Federal farm-to-marketroad is be-
ing surveyed under the supervisionof the
State Highway Department and the right-of-
way must be procured. This highway is be-
ing built in a section of the county.affect-
ing only two of the Commissioners'Pre-
cincts and is not in any way beneficial to
the residents of the other'two precincts.
Hon. V. H. Sagebiel - Page 2 (V-347)
"Under these facts is the procuring
of the right-of-waya matter to be paid
for out of the funds of the precincts in
which the farm-to-marketroad is being
constructed,or is it a county-widepro-
ject for which all the Commissionerspre-
cincts must provide funds?"
The question imaediatelyarises as'to what
'interpretationand effectshall be given Article 6740,
V.C,S., which reads in part as follows:
"The commissionerscourt shall see
that the road and bridge fund of their
county is judiciouslyand equitably ex-
pended on the roadsand bridges of their
county, and, as nearly as the condition
and necessity of the roads will permit,
it shall be expended in each county com-
missioners precinct in proportion to the
amount colleoted in such'precinct,"
In regard to similar situations involving
State highways, it is well settled that the Comtnission-
ers' Court may look to the entire county for funds to
procure a right-of-waythat affects only one precinct.
Shivers v. Stovall, 75 S.W. (2d) 276, affirmed 103 8.W.
@;~i5;``)Garland v: Sanders, 114 S.W. (2d) 302 (writ
The principles and theories in relation to
a nfarm-to&rketW road are just the same. It is stated
in the Shivers case that:
"These provisions of the law, as well
as others which might be mentioned, clearly
contemplatethat the aommissionerscourt of
each county shall regard.the roads and hiph-
ways of the county PS a system, to be laid
out, changed, repaired, improved, and main-
tained, as far as practical,as~a whole to
the best interests and welfare of all the
p pie of the county_ It is olearly con-
tE:plated that all riads and bridges.ofthe
county shall be maintained, repaired, and
imorovedwhen necessarv'" as the conditions
may require, regardless*ofthe 3recinct in
which same may be located,so far as the
funds will equitably justify.
-.
Hon. V. H. Sagebiel - Page 3 ‘(V-347)
bridge fund acoording to any fixed mathe-
matical formula, ana apportion same in aa-
Vance for the purpose of being expended in
From the above cited case, it is apparent that
the court makes no distinction as to the type or classi-
fication of roads in regard)to its constructionout of
the county road fund, Nor do the later statutes, Article
6674-20, V.C.S., and H, Bc No. 21 of the 50th Legislature,
which deal specificallywith nfarm-to-narketll roads, in
any way change the above holding.
On the other hand, ‘it is elementary that the
Commissioners*Court is the agency of the whole county
with ,eachcommissionerresponsibleto more than his owns
precinct, Iiisduties are county-wide;he must safe-
guard the welfare of all the county, and in carrying out
his powers of establishing and maintaining a county road
system, the ‘aountyroad fund may,be used in one or all
precincts d.ependingupon the needs of the county. This
should not .betaken to mean, however, that it is manda-
tory that the Commission&s* .Courtshould look to the
whole oounty to procure the funds for a right-of-way.
Article 6740, supra, clearly points out that, as nearly
as .conditionswill allow and as nearly as necessity will
permit, the said funds shall be expended in specific pre-
cincts in proportion to the amount collected therein. In
this regard, also, the Shivers case, supra, explains:
n the commissionerscourt must
give eif&i to said article 6740 except when
the necessities of the roads and bridges re-
quire a departure from it. That article re-
quires that the road and bridge funds of all
counties shall be judiciouslyand equitably
expended. It further requires that such
funds shall, as nearly as the condition and
necessity of the roads will permit, be ex-
pended in each commissionersprecinct in pro-
Hon. V, H, Sagebiel - Page 4 (V-347)
portion to the amount collected in such pre-
cinct, The dominant purpose of this statute
seems to be to require that the road and
bridge fund shall be expended in each commis-
sioners precinct in porportion to the amount
avoided except In oases or oonditionsof
neosssitg, Of oourse, the commissioners
court has the right to exercise its sound
judgment in determining the necessity, but
it cannot act arbitrarily in regard to such
matter-* (Bnphasis supplied)
In view of the foregoing, it is our opinion
that “each precinct shall prima facie be entitled to its
own funds;” however, in “cases or conditionsof neces-
sity* the Commissioners’Court in “its sound judgmentW
may expend funds allocated to one precinct in another
precinct. In other words, this matter must be decided
by the Comuissioners’Court, and so long as said Court
exercises its best judgment and does not act arbitrar-
ily in regard thereto, its findingswill not be dis-
turbed.
Under the facts submitted, the cost of procur-
ing the right-of-wayfor the farm-to-marketroads should
be paid for out of the funds allocated to the two pre-
cincts in which the roads are to be located, unless the
Commissioners1Court in its sound judgment finds, by
proper court order, that this is such a case, or condi-
tions are such, that the funds allocated to one precinct
or precincts should be expended in another precinct or
precincts,
SuA5!44RY
The cost of procuring a right-of-way
for a farm-to-marketroad should be paid
for out of funds allocated to the precincts
in which’the road is to be located,‘unless
Ron, V,. II,Sagebiel - Page 5 (V-347)
the Oommissioners~Court in its sound udg-
mant finds; by proper court ora&,, thai
conditionsare such that~the fur&asall?-
cated.to one:precinct or precincts should
be expended in another .precinotor pre-
cAgtsM~ (Shiv(rrs vI &tovall, 103 WVR (2d)
,.
Very truly y.ours
JHR:djm:wb
.