Untitled Texas Attorney General Opinion ( 1942 )

OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
Honorable 0. G. Roam
county Attorney
Fort Bend County
Rlahmond, Texas
Dear Slrr
we are in rooeipt or
this department upon the author
of Fort Bend County to oondem
of the Texas Hi&way Departmen
Your request state County has been re-
quested to prooure additiona eroeBs of 100 feet
In vldth for the purpose of lghvay lo. 288. Tour
request further states;
thee Artio1e
therefore, becomes neoearary to de-
temslnr vhether’the lav, as it existed vhen the oon-
deannation proceediPg vas Instituted, authorized a
commlsrionersl court to oondemn land on behalf of the
state of Texas for F, right of vay for a state hLghv&ay.
Article 6674n, Vernon’s Annoteted Texas Statutes, as
soaorable 0. 0. Rome, Page 2
it existed at that time, la found in the amenda-
tory act of the Forty-Third Legislature, c. 207,
Senate Bill Ao. 531. That act clearly expresses
that power In this languaget Whenever, In the judg-
ment of the State Highway Oommisalon, the use or aa-
quisition of any land for road, right-of-vay purposes,
timber, earth, stone, gravel or other material, neces-
sary or convenient to any road to be constructed, re-
construoted, maintained, widened, straightened or
lengthened, * l l the same may be acquired by purchase
or condemnation by the County Comalsalonersl Court.’
“The pover Is again expressed In the next pare-
graph of the same act. The contention that this aot
should be construed to limit the pover of commlesion-
ers * courts to condemn laud for stream-bed dlverslon
only is, to our xuindm, vholly untenable. But ve do
not think It would be profitable to enter into a fur-
ther discussion of this question, for, if the language
of the act should be construed ae contended for by ap-
pellant, it would derive no benefit from such construo-
tlon, for the folloving reaaonst The caption of the
last amendment is as follovst ‘Chapter 207. An Act
amandlng Artlole 6674n, Revised Civil Statutes of 1925,
as amended by Chapter 10, Acts of the Third Called Ses-
sion of the Forty-first Legislature, and Chapter 79,
Acts of the Fifth Called Session of the Forty-flret~
Legislature, so as to authorlte the Comlsalonerst
Court to condemn land not more than one hundfed feet
ln vidth for stream-bed diversion ln connection with
the looating, relocating or oonatructlon of a dealg-
nated State Hlghvay; and declaring an emergency.’
“This caption gave notlas that amended article
6674n vaa to be mther amended so as to confer the
additional power upon commissioners’ oourts to condemn
land for stream-bed diversion. It aertainlg gave no
notice of an intention to take from such courts povers
vhich they then possessed under the article to be emend-
ed. If the language of this last amendment should be
conetme8 tie expressing suah intention, it would not be
effective for that purpose, because of the failure of
the title to give notice of that aubjeot, and suoh
courts would still posaese all of their origins1 powers.
Eonorable (t. G. Roane, Page 3
Ward Cattle & Pasture Co. v. Carpenter, 100 Tex.
103, 200 s. w. 5211 Chanoe v. Dayton-Goose Creek
Ry. Co. (Tex. Clv. App.) 2i; 0 9. W. 843. Unquea-
tlonablg, under this article ae it existed prior
to the last amendment, county conmIssIoners courts
had the pover to condemn land for rights of vay for
state hlghva a. Cernooh v. Colorado County (Tax.
Clv. App.) 45 5. U. (26) 470. Since the last amend-
ment, however its language be construed, was inef-
fective to revoke that pover, the same still exists,
end commissioners1 courts vould be authorized to
proceed under the povere existing prior to its enact-
ment . Our conclusion Is that comissionersl courts
have the power to condemn lend, for and on behalf of
the’ state, for rfghts of vay for state highway purposes.’
You are, therefore, advised that the commlssloners~ court
of FortBend County does have authority under Article 6674n, supra,
to condemn land for hlghway right-of-vay for the benefit of the
State Iiighvay Department.
Yours very truly
RKCtej