Hon. Walker Carson Opinion NO. o-2778
County Attorney Re: Can the commissioners' court
Hudspeth County legally purchase road machinery
Sierra Blanca, Texas for the maintenance of lateral
roads out of the lateral road main-
Dear Sir: tenance fund mentioned?
Your recent telegram requesting an opinion of this
department upon the above stated question has been received.
We quote from your telegram as follows:
"Please advise me by wire collect whether
or not in your opinion the county commissioners'
court can legally purchase road machinery for
the maintenance of lateral roads out of the la-
teral road maintenance fund created by State
money paid this year to county for lateral road
construction and maintenance. This is a new
fund under a new statute and the only authority
I find is particle66749-7 IHI and ,Article6674q-
13. The commissioners1 court has heretofore
elected to use this money for construction and
maintenance of lateral roads as required by Ar-
ticle 66744-7 lHt."
Paragraph H of Article 66749-7 reads, in part, as
follows:
"The monies allocated to each county from
the Lateral Road ,Accountshall be used by said
county first for paying the principal, interest
and sinking fund requirements maturing during the
fiscal year for which such money was allocated
to such county on bonds, warrants and other le-
gal.obligations issued prior to January 2, 1939,
the proceeds of which were actually expended in
acquiring rights of way for State designated high-
ways, it being the intention of the Legislature
to designate and set apart sufficient money to
pay off and discharge said outstanding obligations
incurred for right of way acquisition. Funds re-
maining in the Lateral Road Fund of any county
Hon. Walker Carson, page 2
after the payment of said right of way obliga-
tions may be used by the county, under the direc-
tion of the Commissioners Court, for any one or
all of the following purposes: (a) for the ac-
quisition of rights of way for county lateral
roads and for the payment of legal obligations
incurred therefor prior to January 2, 1939, (b)
for the construction or improvement of county
lateral roads, (c) for paying the principal, in-
terest and sinking fund requirements of any bonds
or warrants which were legally issued by such
county or Road District prior to January 2, 1939,
the proceeds of which were actually expended in
the construction or improvement of lateral county
v roads, (d) for the purpose of supplementing funds
appropriated by the United States Government for
Works Progress Administration highway construction,
and such other grants of Federal funds, as may be
made available to the counties of this State for
county lateral road construction and (e) for the
purpose of cooperating with the &ate Highway De-
partment and the Federal Government in the con-
struction of farm-to-market roads.
QUter such allocation has been made to the
several counties in the State, the Board shall in
writing notify the Chairman of the Commissioners
Court of each county of the amount which has been
credited to that county. After receiving said no-
tice, the Commissioners Court shall, within sixty
days, notify the Board of the manner in which it
has exercised its option as to the one or more
specified uses of said money permitted under this
Act.
"In the event the Commissioners Court of a
county shall have elected to use all or any part
of the money thus allocated to said county for the
purpose of paying principal and interest or sink-
ing fund requirements of its indebtedness for la-
teral roads, such money shall be applied pro rata
to the payment of the debt service requirements
of all issues of lateral road indebtedness of the
county and all included defined road districts,
in the proportion that the debt service require-
ments of each issue bears to the aggregate debt
service requirements of all issues for that year.
When any issue of obligations which will receive
Hon. Walker Carson, page 3
aid under this section is already listed with
the Board of County and District Road Indebted-
ness, the Board shall credit the amount appli-
cable to said issue to the account of said issue
in the State Treasury. wasto all other issues
of obligations, which will receive aid under this
subsection (h) theCommissioners Courts of the
specific counties affected shall have the right
if so desired to utilize the facilities of the
State Board of County and District Road Indebted-
ness in paying the amounts of principal and in-
terest on said issues substantially in the manner
that payments are effected as to such eligible
obligations.
“In the event the Commissioners Court of a
county elects to use the money allocated to it
from the Lateral Road Account for the construc-
tion of lateral roads it shall notify, in writ-
ing, the said Board oh its election to make such
use of said money. Whereupon, said Board shall
remit said money, or the part thereof to be util-
ized for such purpose, to the County Treasurer
of such county, said money to be deposited by the
County Treasurer in accordance with the law, and
the same shall be utilized by the county, acting
through the Commissioners Court, for the con-
struction of lateral roads. Each county may call
upon the State Highway Commission to furnish ade-
quate technical and engineering supervision in
making surveys, preparing plans and specifica-
tions, preparing project proposals and supervis-
ing actual construction; the actual cost of such
aid in supervision shall be paid by the county as
a charge against its project.
“In order that maximum benefits may be ob-
tained in the expenditure of the State fund made
available to the counties under this Act for the
construction of county lateral roads, and so that
the counties may have the benefit of widespread
competition among contractors in bidding on such
projects, such counties may, in l~lkieir
discretion
authorize the State Highway Commission to mceive
bids in Austin on all such construction in the
same manner as is now provided by law for the
award of contracts on State Highways.
Hon. Walker Carson, page 4
"When any road which shall have been con-
structed by any county wholly from the County
Lateral Road Account shall be designated by
the State Highway Commission as a part of the
system of designated State Highways, the desig-
nation of such road by the State Highway Com-
mission shall constitute a full and complete
discharge of any and all obligations of the
State, moral, legal or implied, for the payment
of such highway.
"In the event the Commissioners Court
elects to cooperate with the Highway Department
in the building of or in the construction of,
farm-to-market roacls, it shall by proper reso-
lution entered upon its minutes, authorize the
State Treasurer to pay such funds to be so used
over to the StatesHighway Department for use on
certain designated projects. Regardless of how
the funds allocated to the counties from the
Lateral Road Account are used, the County Judge
of each county shall file with the Board on or
before October lst, of each year, a verified
report showing the manner in which the said
funds have been expended, the nature and loca-
tion of the roads constructed and such other
information as the Board may hrom time to time
require."
,Article6741, Vernon's Annotated Civil Statutes,
provides:
"The commissioners court may make and en-
force all reasonable and necessary rules and
orders for the working and repairing of public
roads, and to utilize the labor to be used and
money expended thereon, not in conflict with
the laws of this State. Said court may purchase
or hire all necessary road machinery, tools or
teams and hire such labor as may be needed in
additfon to the labor required of citizens to
build or repair the roads."
We quote from Texas Jurisprudence, Vol. 21, p. 630,
as follows:
"Subject to any local law, commissioners'
courts are invested with the power and charged
Hon. Walker Carson, page 5
with the duty of creating and maintaining
adequate roads. They are commanded tihai out
and establish roads when necessary.
words mean *make, create or found permanently’
-- that is to say they are empowered to do all
such acts as may be necessary to construct
permanent roads. They are further directed to
‘exercise general control over all roads, high-
ways, ferries and bridges in their counties.’
Accordingly, where a statute applicable to
highways merely empowers commissioners’ courts
to exercise their powers in a particular way,
it will be construed as being subordinate to
the general power of control, and not manda-
tory. Similarly the doctrine of implied pow-
ers enables colid ssioners’ court3 to do all
that is necessarily incidental to their declared
powers of road improvement and regulation. The
limits of their powers, however, are reached
when they exceed what may fairly be implied.
“Just as in matters involving the establish-
ment of a highway, the administrative powers of
commissioners’ courts are exercisable according
to their discretion with which the-courts re-
frain from interfering except upon a clear show-
ing of abuse. ***‘I
Lasater v. Lopez, 202 S.W. 1039, affirmed 217 S-W.
373.
It will be noted that paragraph H of Article 6674q-7,
supra, specifically provides that the moneys allocated to each
county from the lateral road account shall be used by said
county first for paying the principal, interest and sinking
fund requirements maturing during the fiscal year for which
such money was allocated to such county on bonds, warrants
and other legal obligations issued prior to January 2, 1934.
As stated in the statute it was the intention of the Legisla-
ture to designate and sec apart sufficient money to pay off and
discharge said outstanding obligations incurred for right-of-
way acquisition. It is further provided that funds remaining
in the lateral road fund of any county after the payment of
said right-of-way obligation may be used by the county, under
the direction of the commissioners1 court for any one or all
of the purposes as set out in the statute. Two of the purposes
for which the remaining fund may be expended as provided in the
statute is for the acquisition of rights-of-way for county
, -- .
Hon. Walker Carson, page 6
lateral roads end for the payment of legal obligations incur-
red therefor prior to January 2, 1939, and.for the construc-
tion or improvement of county lateral roads.
When the commissioners1 court of a county elects to
use the money allocated to it from the lateral road account
for the construction or improvement of county lateral roads,
it is our opinion that the court may exercise all implied pow-
ers that.is necessarily incidental to their declared power of
constructing or improving of county lateral roads. Therefore,
you are respectfully advised that it is the opinion of this
department that the commissioners1 court may use the funds
remaining in the lateral road fund of a county to purchase
road machinerv ?or the maintenance of lateral roads when such
machinery is necessary for the maintenance, Construction or
improvement of the county lateral roads.
In this connection we call your attention to our
Opinion No. O-2320 which held that:
"The county is without authority to use the
funds specifically credited to the various defined
road districts by the terms of this Act for any
purpose except that which would confer a direct
benefit upon the taxpayers living within those
particular defined districtsi and in harmony with
such construction we advise hat the county cannot
expend road district moneys pursuant to the option
provided in Section 'El, paragraph 5, subsection
(h), Section 6 of House Bill 688."
Trusting that the foregoing fully answers your in-
quiry, we are
Yours very truly
ATTORNEY GENERAL OF TEXAS
By /s/ Ardell Williams
,ArdellWilliams, Assistant
APPROVED SEP 30, 1940
/s/ Gerald C. Mann
AGGORNEY GENERAL OF TEXAS
APPROVED: OPINION COMMITTEE
BY8 BWB, CHAIRMAN
AW:eaw:wb
Untitled Texas Attorney General Opinion
Combined Opinion