Honorable A. 3. Bryan, Jr.
Criminal District Attorney
Hill County
Hillsboro, Tex8.e
Dear Sir: Opinion Number O-2430
Rer May the Commissioners1Court purchase
material and pay for labor in fencing
right-of-wayout of bond money voted
for the purpose of purchaelng a right-
of-way for the use of the State Hlgh-
way Department In building State
designated highways?
We acknowledgereceipt of your opinion request of recent
date and quote your letter as follows1
~"Thisoffice would appreciatean opinion from
your-departmentconcerningthe following gactsr A bond
issue wa8 parseedinthia county which set aside $30,000
to be ueed for the purpose of purchasing right of way
for the use of the State HIghway Department in building
paved State designated highwaya. The Commissioners'
Court has purchased right of way for highways to be paid
for out of the bond money.
"In most lnstances~thenew highway will cut
across a pasture or open field. When such a case arises
--- the..landownershave asked that the county buy the
material;:arid
erect fences along the right of nay and pay
for the same out of the bond money.
"Question: Can the bond money be used to pur-
chase the material and pay for the labor on these fence@?
"I might add to the statementabove this
llluetrationr A man owns a strip of land and the new
highway goes through the middle of his pasture and he
asks $100.00 per acre for the,.three.:aore8
in the right
of way. The court agrees to pay him the $100.00 per
acre and secures from him a deed to the right of way.
Dater he asks that they erect the fences.
- "Question: If the cost of the fence was in-
cluded In the purchase price a8 a part thereof,would that
be proper?"
Hbnorable A. J. Bryan, Jr., Page 2 O-2430
,-
It Is elementary that the fund derived from the sale of
bonds may not be diverted from the purposes specified in the proposition
submitted to the electora. Aransas Counts vs. Coleman-FultonPasture
Company, l.91,sY.555; Reathman vs. Singl&ary, 12 S.W, f2d) 150; Hugglns
vs. Baden, 259 S.W. 204.
It follows that where a departure from the propositionappear-
ing on the ballot paper,ls alleged, the only question Is whether the ex-
penditure contemplated1s within or without the proposition upon Its true
construction. Adams vs. Mullen, 244 S.W. 1083.
As we understand It, the bonds In question were voted for
the purpdse 'of purchasing right-of-wayfor the use of the State Highway
Bepartment in building paved State designatedhighways."
In condemnations&s the Texas courts have held that reason-
able costs of sufficient fences may be taken %nto considerationin fixing
the amount of damages due the landowner. Morris VB. Coleman County, 28
i3.u.380.
It 1s the opinion of this department that the construction
of necessary fences or paying for fencing of lsnd acquired for rlght-of-
way purposes Is an incidentaland necessary expense in acqulrlng said
right-of-way.
Therefore, in our opinion, bond money may be used for fencing
-. land acquired for right-of-wayswhere bonds were voted for the purpose above
quoted. This may be done in one of two ways -- the Commissioners'Court may
Include the reasonableprice of necessary fences in the amount that they
pay for the land for right-of-way,or if in their sound discretion the court
believes it is better and more economicalfor the county, they may purchase
the material and pay for the labor to construct said fences out of bond
money, not IncPuding thlsitem In the purchase price of the land. Under the
IIlustratlon stated ln your letter, where the price of fencing was Included
In the original purchase price of the land, the court cannot later pay for
the fences out of bond money.
Trusting that thiplanswi)rsyour question, we are
Very truly yours
s/ Claud 0. Boothman
Claud 0. Eioothman
Aasietamt
COB: S!WC
APPROVED JUNE14 1940
s/mRALDc. MANi
ATTORuEpGEWERALOFTEXAS
up Approved Opinion Committee by s/BWB Chairman