Untitled Texas Attorney General Opinion

EA ORNEY GENERAL OF TEXAS Honorable George W. Morris Opinion No. WW-405 County Attorney Montgomery County Re: Atithorityof e courit,y to-re- Conroe, Texas locate or rebuild fences, cattle guards, and culvert-s as a part of the corieider- ation for the purchase of right of way for a County Road or a Farm to Market Road. Dear Sir: Your request for an opinion states the foIlowing ques- tions: "Can Montgomery County, Texas, acquire right of way by purchase, contract or otherwise (except by condemnation proceedings) and legally obligate itself to remove and re-establish and/or rebuild the fences, cattle guards and culverts where the work is the whole or a part of the consideration for such new right of way or addi- tional right of way secured by the county either for itself or for and on behalf of the State of Texas for Farm to Market Highways?" Your letter indicates that the performance'of this ,work by county employees, rather tlhanby an independent contractor en- gaged by the property owner, will result in savings both ,tothe landowner and the county. Further, you state that such a proce- dure would eliminate delay In clearing ,thanew right of way for future construction. In Attorney General's Opinion No. O-1457, it was stated: "While right-of-way is acquired by purchase, contract or other wise except by con- proceedings, and the construction or demriatiorl rebuilding of t'hefence is ,thewhole or a part of the consideration for such new rlg!!.t-of-way or additional right-of-way secured by the county, ther,the county ,wouldbe obligated t;ocarry out its agreement with the landowner regarding the re'buildingor construction of the fence accordLng Honorable George W. Morris, page 2 (w-405) to the contract or agreement had between the parties." We think the above statement to be sound, and adopt It as our opinion in this case. Accordingly, the county may con- tract with a landowner, as a part of the consideration for the purchase or right-of-way, to replace the fence of the owner along the right-of-way taken for road or highway purposes. We do not think that the use of county labor and equip- ment to satisfy this obligation constitutes the use of county equipment for private purposes as condemned by Article 9780, Vernon's Penal Code, and Rowan v. Pickett, 237 S.W. 2d 734 (Tex. Civ. App.), for the reason that this use of county employees and equipment is in the furtherance of a lawful governmental func- tion of the county, i.e. the building and maintenance of a system of roads. We would further point out that the funds used as con- sideration for the purchase of such right-of-way may not be taken from the Permanent Improvement Fund of the County. At- torney General's Opinion V-831 (1949). The Road'and Bridge Fund of the County should be used for this purpose. The consideration for the work and labor done and materials furnished by the county as a part of the purchase price and consideration to be paid for the acquisition of the land in question should be specifically set forth In the contract. SUMMARY A county may legally contract as a part of the purchase price of right-of-way to relo- cate or rebuild the fences along said right- of-way caused by the widening or changing of the road or highway. Said services should be paid for out of the Road and Bridge Fund of the County. JHM:mg:pg:wc Yours very truly, APPROVED: WILL WILSON OPINION COMMITTEE Attorney General of Texas Se0 s P. Blackburn, Chairman J.C. Davis, Jr. By s/John H. Minton, Jr. C.X. Richards John H. Minton, Jr. John Reeves Assistant REVIEWED FOR THE ATTORNEY GENERAL BY: W. V. Geppert.