Untitled Texas Attorney General Opinion ( 1951 )

ENERAIL
Hon. 'CarrollF. Stilllvant Opinion No. V-1282
County Attorney
Cooke County Re: Wh&ther condemnation pro-
Gainesville, Texas ceedings for lands for
*.~ farm-to-market roads
should be Instituted in
the name of the State or
Dear.~Sir: the county. .
Your request for an opinion reads in part as
follows: .
"Your opinion is requested as to the
procedure necessary for the 'condemnation
of land to be used as farm to market roads,
partiizularlya8 to whether the proceedings
are to be filed in the name of the State of
in the name of the County.
"It appear; that a prerequisite for
the condemnation of lands for right-of-way,
by counties, in the name of the ;gtate of
Texas may be that such lands be reauired
for state highways and that farm to-market
roads are not part of any designated state
highway as that term is used in the statute.
"I have been unable to find any statute
directly authoritltigcpunties to condemn
lands in behalf of the State for farm to
market roads, nor have I been able to locate
any decisions of our appellate courts hold-
ing that farm to learketroads are state
highway@ within the contemplation of Arti-
cle 6674n, R.C.S.
"Piumeroustracts of land have been con-
demned ln the n&me of the State, acting by
and through the Commls~loners~ Court Of Cooke
County, but I am inclined to the opinion that
Hon. Carroll F. Sulllvant, page 2 (V-1282)
such procedure Is incorrect and that the
Commissioners' Court should institute such
proceedings in the name of the County and
thereafter convey the right-of-way to the
State. Your opinion with reference thereto
is respectfully requested."
Cossulssloners~courtshave the authority to
condemn land to be used for the construction of a road
either under the general eminent domain statutes (Art.
364 et seq., V.C.S.) or under the statutes relating
strictly tothe establishment of roads (Art. 6702 et
seq., V.C.S.). Tarrant County v. Shannon, I29 Tex. 264,
104 S.W.2d 4 (1937); Doughty v. DeFee, ,152S.W.2d 404
(Tex. Clv. App. 1941, error ref. w.o.m.). Article 3264a,
V.C.S., which confers the right of eminent domain upon
counties, provides that condemnation proceedings shall
be Instituted under the direction of the oommlssioners'
aourt and In the name of the county. The only authority
for counties to institute such proceedings "on behalf of
the State of Texas" and "with title to the State of Texas"
is found in Article 6674n, V.C.S., which applies only to
land needed for designated State highways. Under this
latter Artiole, the commissioners* court acts not for the
benefit of the county but as the authorieed agent of the
State and institutes the condemnation proceedings in the
name of the State. State v. McLendon, 111 S.W.2d 287
(Tex. Civ. App. 1937, error dlsm.). Thomuson v. State,
165 S.W.28 131 (Tex. Civ. App. 194s);.T_raders'Comnress
Co.. State, 77 S.W.2d 245 (Tex. Civ. App. 1934); &
v. State, 77 S.W.2d 606 (Tex. Clv. App. 1934, error ref.);
Kgier v. Balser, 48 S.W.26 668 (Tex. Civ. Ap 1932, error
ref.); O%sefe v. Hudsueth County 25 S.W.2d tf ' (Tex. civ.
25
Ohio App. 1930). Title vests In the SCate and not in the coun-
WllbarRer County v. Hall, 55 S.W.2d 797 (Tex. COmm.
A";;. 1932).
The right of eminent domain Is inherent in a
State, but the Legislature may delegate this right to
various agencies. The Legislature has delegated the right
to counties by specifically conferring upon them the power
to condemn land for road purposes. It is elementary that
the statutes relating to eminent domain and prescribing
the procedure must be strictly followed.
Although we have been unable to find any au-
thority directly on the subject, we are of the opinion *
that the proper procedure in condemning land for a
farm-to-market road Is for the county to institute the
prooeedings in its name rather than In the name of the
Hon. Carroll F. Sullivant, page 3 (V-1282)
State. The Legislature has directed that the proceed-
ings be instituted in the name of the county in all
instances where the county ma$ exercise the right ex-
cept as to land needed for a designated State Highway,"
whiah term does not include farm-to-market roads. See
Art. 7083a, Sec. 2, subdlv.(4b), V.C.S.
If the condemnat$on proceeding Is instituted
" in the name of the county, the title Is taken in the name
of the county. Regardless of this, it has been the unani-
mous holding of the Texas courts that the rOadB belong to
the State and not to the counties. The titles are merely
held by the counties for the use and benefit of the State.
These same authorities hold that the Legislature can take
over tram the counties all hlghwags and place them under
the exclusive control and jurisdiction of some other agency.
This is not a taking@ the property of the county within
the meaning of the Constitution. defferson County,v. Board
of Count and District Road Indebtednez,143 Tex. 99, 1
25``.~d``q````)Robbins v. Limestone County, 114 Texy*345,
. . .
You are therefore advised that the proper proce-
dure for acquiring land for a farm-to-market road is to
institute condemnation proceedings in the name of the
county. You are further advised that it Is not necessary
for the county to deed the right-of-way to the State in
order for the Highway Commission to designate it as a
farm-to-market road and to authorize the expenditure of
State funds on the road. The county does not own the land
in e proprietary sense but only holds it as an agency of
the State for the use and benefit of the State.
We are not her*&holding that condemnation pro-
ceedings for rights of way for farm-to-market roads which
are brought by the commissioaers~ court In the name of
the State are void. Since the county acquires title to
the right of way as an agency of the State, it may be that
the acquisition of title in the name of the State rather
than in the name of the county Is not such a defect as
would render the proceeding void. The question of the
validity of such a prooeeding has not been presented for
our opinion, and we therefore pretermit a discussion of
the arguments in support of the view that this irregu-
larity would not vitla'tethe proceeding.
Hon. Carroll F. Sullivant, page 4 (V-1282)
SUMMRY
A county should institute condemna-
tion proceedings for land to be used as
a farm-to-market road in the name of the
county and not in the name of the State.
APPROVED: Yours very truly,
Ned &Daniel PRICE DANIEL
State Affairs Dlvisldn Attorney General
Jesse P. Luton, Jr.
:. Reviewing Assistant
By~%?f&it
Everett Hutchinson William S'.Lott '
Executive Assistant Assistant
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