Untitled Texas Attorney General Opinion

Tart .L%TTORNEY GENERAL OF%-EXAS AUSTIN. TEXAS 78711 December 10, 1968 Hon. J. C. Dingwall Opinion No. M-312 State Highway Engineer Texas Highway Department Hain ,office Building 11th and Brazoa Austin, Texas 78701 R8: Whether the Texas Highway Department can legally cofitractwith an adjoin- ing State for participation in the cost of a joint con- struction projection aa reimburse the adjoining State for services per- formed on that portion of the project located in Texas. Dear Mr. Dingwall: You have requested an opinion on the above-referenced matter and have outlined the following pertinent facts relative thereto: (a) The section of U. S. Highway 59 and 71 involved is situated half in Texas and half in Arkansas. (b) It is in the public interest for the State Highway Department of Texas and Arkansas to cooperate in the planning and contracting of construction for the widening and improving of this highway, provided that each State Highway Department is responsible only for that portion of the work in its respective State. (c) You desire to enter into an agreemeat under which the personnel of the Arkansas State Highway Department will be used for the prelimi- nary engineering of the project and for construction -1520- . . Hon. J. C. Dingwall, Page 2 (M-312) engineering and with a provision for reimbursement to the State of Arkansas from the Texas Highway Department Fund for that portion of the cost of the above engineering work performed on the part of the project in Texas. (a) Each State under the proposed agree- ment is to separately approve the contract bias received and separately approve the award of a contract. Your request calls for an opinion concerning three separate questions which are stated, followed by our answers. Question No. 1 Es__th.~-.-~exas_Highway.~~.Department~.unpowered. &?-co.nsractwith..theB-kansas..StateHighway pepz+mec$? We observe at the outset there is no specific statu- tory authority confirming such a right on the Highway Department. Although we answer this question in the negative, the Texas~.High- way Department does have the authority to negotiate-an agreement which may become a binding contract~upon approval by the Governor of Texas. Article IV, Section 10, of the Constitution of Texas provides: Yie,..[the Governor] shall cause the laws to b&~ c;o.auct.; ,...fag$hf$ly person ;. executed and shall i5.,., or iti. such mannerlyas shhll~be'prescr,ibed ._.~~_.--_..-. ,~. 'dL1~ -by_,law;- inter- course ana.business of the S~tatewith.... o$her iState~,and~,.with~_thel,~,gnMed, States." The "Interpretive Commentary" under this Article in Vernon's Texas Constitution reads, in part, at page 795, as follows: "As the chief executive officer of the state, Section 10 also makes the governor the channel of intercourse and business between the State and other States, and the United States. . . .* -1521- Hon. J. C. Dingwall, Page 3 (~-312) This article directs that the Governor, either in per- son, or in some manner prescribed by the Legislature, is vested with power to contract in the name of the State of Texas where the subject matter involves "~~,,fercourse-aniLbusiness af,.Ahe State_w~~~,.,~~~h.er~...States...and...with.-the_United Sta$$~s,l-_.'Ehe "in -&&son" part of the quoted section is self%Z@l.anatory. It has been held that, “in.such.manner asshall~be pre- scribed,by,,law"is a phrase which: Highway Commission of Texas v. Vaughn, 288 S.W. 875 at 879 (Tex. Civ.App. 1926, error refused). In Highway Commission of Texas v. Vaughn, supra, it was held that Article IV, Section 10, of the Constitution of Texas, was not violated by a Legislative enactment which failed to mention the Governor, but authorized Wichita County and the Texas Highway Conunissionto work out an agreement with Oklahcana and the Federal Government concerning construction of a bridge across the Red River. The Court observed, 288 S.W. at 879: "Why should the Legislature direct the Governor to perform an act which the Constitution has made his mandatory duty to perform? The Governor is charged with the duty of executing all laws enacted by the Legislature in the manner required by the Constitution and laws of this State, and the failure of the Legislature to specifically direct that officer to exe- cute a law does not vitiate the law." In our opinion, Highway Commission of Texas v. Vaughn, supra, states the law in relation to the first question presented. -1522- __ Hon. J. C. Dingwall, Page 4 (M-312) It also provides a guide concerning the type endorsement desira- ble to make the agreement reached by the Texas Highway Commission a binding contract. The contract in Vaughn was approved by the following endorsement: "April 9, 1926 *Examined, ratified and confirmed in all things as my act and deed as Governor of the State of Texas insofar as I am required and authorized by law to make said contract. "Mirian A. Ferguson "Governor of Texas' In Attorney General Opinion No. C-284 (19641, it was held that the Highway Department was authorized to use its funds to pay an agency of the united States for obtaining research data to design highway drainage structures. It appears that the only question therein presented and considered was whether the appro- priations bill authorized the expenditure of funds and the statu- tory authority to support the same. The constitutional question of the requirement for the approval by the Governor of the con- tract was not passed upon by this office. Question No. 2 May personnel of the Arkansas Highway Department, under the facts stated, plan and supervise construction of that part of the highway located in Texas? Our answer to this question must be in the affirmative, provided, however, that the Texas Highway Department maintains final authority over that part of the highway work being done in Texas. The State Constitution provides (Article 16, Section 24) that the, "Legislature shall make provision for laying out and working public roads. . . ." The Legislature may delegate this power as it sees fit. Texaa Highway Commission v. El Paso Bldg. L Con&. Trades Council, 149 Tex. 547, 234 s.W.Zd 857 (1951). -1523- I Hon. J. C. Dingwall, Page 5 (M-312) The provisions of the highway statutes of Texas create in the Texas Highway Commission, .. . , an agency in which are vested powers to formulate and execute plans and policies for the loca- tion, construction and maintenance of a comprehensive system of state highways and public roads.* Robbins v. Limestone County, 114 Tex. 345, 268 S.W. 915 (1925). The department of government headed by the Texas High- way Commission is sp$cifically charged by Article 6667, Vernon's Civil Statutes, to, . . . investigate and determine the methods of road construction best adopted to the different sections of the State. . . .* Article 6674q-4, Vernon's Civil Statutes, provides: *All further improvement of said State Highway System shall be made under the exclusive and direct control of the State Highway Department and with appro- priations made by the Legislature out of the State Highway Fund. . . . In the development of the System of State High- ways aa the maintenance thereof, the State Highway Connuissionshall from funds available to the State Highway Department, provide: "(a) For the efficient mainte- nance of all highways comprising the State System.' The term "improvement" as used in Article 66746-4 and defined in Article 6674a, Vernon's Civil Statutes, is, we believe, inclusive of the work described in your request for this opinion. Article III, Section 56 of the Constitution of Texas, prohibits, with certain exception, enactment of special laws aa contains this mandate: "And in all other cases where a general law can be made applicable, no local or special law shall be enacted." The Legislature has delegated exclusive and immediate control of the improvement of the State Highway System to the -1524- .’ - Hon. J. C. Dingwall, Page 6 (~-312) Texas Highway Department, with the direction that there be efficient maintenance of the State System, Article 6674q-4. It is our opinion that the scope of authority dele- gated to the Texas Highway Department is broad enough to allow the procedure outlined above for cooperation with the State of Arkansas: provided it is in the public interest, as you have determined that fact to be; provided it is in furtherance of efficient maintenance; and provided the Texas Highway Depart- ment retains final authority wer that portion of the work done in Texas. We do not believe the Texas Highway Department is authorized to negotiate an agreement whereby final determina- tion of the construction requirements and specifications, right- of-way requirements, etc., of the entire project, are vested in any authority other than the Texas Highway Department, because such an agreement would be a relinquishment of the exclusive and direct control delegated specifically to the Texas Highway Department by Article 6674q-4. Question No. 3 May money from the Texas Highway Fund be used under the facts stated to reimburse the State of Arkansas for the portion of the work done in Texas7 We answer this question in the affirmative. The provi- sions of law cited above which authorize the Highway Department to use the procedure outlined impliedly authorize payment therefor. Article 6674q-4 specifically authorizes use of such moneys for the efficient maintenance of the Highway System. SUMMARY A contractural agreement with the State of Arkansas may be negotiated by the Texas Highway Department for the approval of the Governor of Texas. Upon approval by the Governor, the agreement can become a binding contractural obligation of the State of Texas. - 1525 - _ . Hon. J. C. Dingwall, Page 7 (~-312) The Texas Highway Department may, in order to promote more efficient construction practices, further the public interest, and prevent waste of manpower, allow personnel of the Arkansas Highway Department to do preliminary engineering and construction engineering work on that portion of the road in Texas, provided final control and authority over that portion of the road in Texas rests in the Texas Highway Department. Texas Highway Department funds may be used to reimburse Arkansas for that portion of the cost of such work applicable to the part of the road in Texas. Prepared by SAMUEL D. MCDANIEL Assistant Attorney General APPROVED: OPINION COMMITTEE Kerns Taylor, Chairman Thomas Mack Larry Craddock Louis Neumann Jack Sparks A. J. Carubbi, Jr. Executive Assistant - 1526 -