Honorable Aileen Mitchell ;
County Auditor, Fort Rend Cbunty
Richmond, Texas
'
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Dear Madam: OpinLon Ro. O-6834
Re: Whether the Colmnissioners'Precinct or
County.can issue emergency warrants to
cover the cost of a right-of-way for
building a farm-to-market road by the
State and Federal Government; and
whether this would be consldered a
permanent improvement.
A-
This in reply to your request dated September 18, lgbs, which
request reads as follows:-
"The quest%on has arisen whether the Co%nnission&s~ .__
Precinct can issue'emergency warrants to cover the cost of '.
. . . the:kpunchaseof.~rS.ght.
of way for the building of farm&o
market roads by the State .and Federal Government, and
whether.thls would.be consaderedpermanent improvement,and. "
also whether the aounty would have authority to issue these
.warrants.+* *"
In your request you ask ,threequestions and~we will answer
them in the order 1n;whlch they appear,tberein.
1. Can a.C6&ssioners1 precinct issue emergency
. warrants to.cover.the cost of the purchase of
rights-of-way for the building of farm-to-
market roads by the.State snd Federal Govern-
.ments?
We have searched the .statutesand Constitution of this State
and have been unable to find anv authorization for a commissioners.'ure-
cinct tolssue any kind of warrants.
2. Whetheremergency warrants can be issued for
the purpose of purchasing rights-of-way and
be paid from the Permanent Improvement Fund.
The nurpose of rights-of-way of publ:.cr&d s is i+p;rt :J?
the Z-036systen'and must be paid from the Count::'sRoed nnd RrSc:se1?und,::I"
cannot be paid.'outof tiie Permanent LlrproveaentPund. Carrnl Y';W!.lliams,
202 S.W. ~534.
. nonoraolc Hlleen ItiitchcJ.1,page 2 (Copy) O-U&j4 .,
the purchase of rights-of-way for,the bililding_
of farm-to-market roads by the State and Federal
Qovernments.
The public policy relating to farm-to-market rends is Provided
for in Articlee6673-c,j.Vernon'sAnnotated Civil Statutes, w;lichwe quote:
"Section 4. The State Highway Commission is aut-
horized to designate any county road In the State as a~
farm-to-market roajdfor purposes of construction, recon-
: struction, and maakenance drily, provided that the Corn--
missioners Court& the county in which any such County
road is located shall pass and enter in itsminutes an
order waiving any.rights such county may have for partici-
pation by the state in any indebtedness incurred by the
,county in the construction of such county road; and pro-
vided further that the State Highway Commission and the
Commissioners Courtof.%he county in which any such raod
is located may en%er Into ,a contract that shall set forth
the duties of the state in the construction, reconstruc-
tion, and mainterqanceof the county road in consideration
T of the county ax-d/or road district relinquishing any and
all claims for state participation in any county, road
district, or defined road district bonds, warrants, or
other evidences of indebtedness outstanding against.such
road for the construction or improvement of the road be-
fore being*$signated bgthe State Highway:Commiss~on.
,- .‘.. *. .
'i -
"Sec. 2. It & hereby de&red to.be the policy.of
the state that.the assumption by the state of the obl&a-
tion to construct:'andmalntaln such roads designated by the
State HIghway Commission as farm-to-market roads under,the
,provisionsof this Act constitutes fulLand complete com-
pansation for any and all funds that might have &en ex-
pended by any county, qoad district, or defined road dis-
.~ trict in the construction and maintenanceof said road prioz
to its designation by the'State Highway Commission.. as a farm-
to-market road. '*.* * *" .
Article 6674n,~Vernon's Annotated Civil Statuteq.is the
s&utary authority authorizing the county to purchase highway rlghts-
of-way and we quote, in Part, from said article:
"Whenever, in the'judgment of the State Highway
Commiss5on, the use or acquisition of any land for road,
right.of way purpPses, timber, earth, stone, gravel or
.othermaterial, nec.essaryor convenient to any road to
be constructed, reconstructed, maintained, widened,
straightened or lengthened, or ,landnot exceeding one
hundred (103) feet in width for stream bed diversion in...*
connectIon with.the locatling,relr\Cating or cpnst~ctjon
of a des%gneted St&e Highway by the Sta~teHighWa:7Come
mission, the same may be ac'quiredby purchase or condem-
nationby the County CommLssioners-Court. Provided .that
the County ir,which the State .Higimay is located mar P3Y
for .same out of the County Rozd and Br'l.dse filno;'oran:?
a,r:*ilahle tiountyv fundz.
Honorable Aileen Ivlitchell,Page 3 o-6834
"Any Commissioners Court is hereby authorized to
secure:by purchase or by condemnation on behalf of the
State of Texas, any new or wider right of way or land not
exceeding one hundred (100) feet in width for stream bed
diversion in connection with the locating, reldcating or
construction of a.designated State Highway, or iiand or
lands for material or borrow pits, to be used ) the con-
struction, reconstruction or maintenance of Sts&e High-
ways and to pay for the same out of the County Road and
Bridge Fund, or out of fny special roa~dfunds or any
available county funds.
Since the Commissioners' Court has the statutory 'authority to
purchase rights-of-way, the Commissioners' Court has the implied authority
to issue interest bearing warrants for the purpose of purchasing rights-
of-way. Lassiter v. Lopez, 217 S.W. 373. The manner of issuing said
warrants is controlled by the provisions ~ofArticles2368a.
In your request for an opinion you do not state any facts
from which this department can determine whether the county would be
authorized to issue emergency warrants: Tne secondiparagraph of Section
5 of Article 2368a, provides as follows:
"Provided, that in case of public calamity caused
by fire,.flood, storm, or to protect the public health,
or in case of unforeseen damage to public property,
machinery or equipment, the Commissioners' Court of the
' Boverning bodymay issue such time warrants as are neces-
sary to provide for the immediate repair, preservation
or .protection of public property and the lives and ,health
of the citizens of such county or city, irrespective of
the limitations contained in this Section and the restric-
tions imposed by Sections 2,,3 and 4 hereof."
If the purpose for wh~ichyou desire to issue emergency war-
rants comes within the above quoted statute, then the county would be
authorized to issuesaid warrants. .,.
Yours very truly,
ATTORNEY GENERAL OF TEXAS
By s/ R.J. Long
R.J. Long
Assista.nt
RJL:EP:wc
APPROVED OCT 18, 1945
s/ Ca~rlosC. Ashley
FIRST ASSISTANT
AlTORNEY GENERAL