                                           July     14,   1958


Ronorable   D. C. Greer,                             Opinion     Ho. W-472
State Highway Engineer,
Austin,   Texas                                     Be:    May Court Costs in Condemnation
                                                           suits to secure rights  of way for
                                                           State Bighways be paid out of
                                                           Section  23 of the Highway Depart-
Dear Mr. Greer:                                            meat Appropriation?

               We have   received   your   letter     in which    you state:

               “We wish to be advised whether or not it is proper
               to pay court costs in connection   with eminent drain
               procedures,  in connection with the acquisition    of
               right of way in connection   with the construction     of
               highways out of the appropriation    included  in Section
               23 of the Eighway Department Section     of House Bill
               133. ”

            The general  appropriation    bill for the biennium ending August 31,
1959 is   contained  in House Bill    133, Chapter 384, page 869 et, seq. of the
Acts of   the Regular Session of the 55th Legislature,      1957.

               Section 23 (page 1002) of the Highway Department                Appropriation
appropriates      money for purposes reading in part as follows:

               “for establishing,     planning, constructing           and
               maintaining    a system of highways”

           Other provisions of the above appropriation    bill which might be
pertinent  in answering your question  are (1) the provision   et page 1004
providing  for the transfer of funds from the Righway Department to the
Attorney  General and (2) the regular  appropriation   for the Attorney General
at page 947.

             The question  to be answered is out of which of the above approp-
riations    should the court costs  in condemnation  suits be paid.   It is our
opinion   that such costs should be paid out of the first     of the above quoted
appropriations     for the Highway Department,  for the reasons hereinafter
stated:
Bonorable    D. C. Greer,     Page 2 (W-472).




           The term “caurt costs”  as used in this opinion includes    the cost
of the condemnation  proceedings,  including the cost of hearings   before  the
special caissioners     as wall as coots on appeal from the award.

             Beginning     with the enactment of Chapter 186, Acts 39th Legis-
lature,    Regular Session,       1925 (V.A.C.S.    Art. 6674a et seq.),        the Highway
Department for the first          time was authorized      to construct     highways.
Immediately     prior    to the enactment of House Bill         179, Chapter 300, Page 724,
Acts Regular Session,         55th Legislature,      1957 (V.A.C.S.     Acts 6674~ to 6674w-4)
and Rouse Bill 620, Chapter 301, Page 731, same Acts,                 the Highway Department
had no authority       to condemn property       for rights   of way except under certain
conditions    when the county failed         or refused    to acquire    the same by purchase
or condemnation       as provided     in Art. 6674n V.A.C.S.        Prior to the enactment
of said House fills        179 and 620, the Highway Department did not pay for any
rights   of way, but the counties         were required     to pay for the same.       Under
Section    4 of House Bill       179 (Art. 6674w-2),     the Highway Department is
authorized     to acquire     rights   of way by condemnation       as well as by purchase.
(The Federal Government currently            reimburses    the State for 90% of the cost
of rights    of way on Interstate        Highways).

             The specific       power above mentioned         to construct    highways and the
additional     specific    power to condemn property            for rights   of way clearly       make
the cost of acquisition          of a right of way a part of the cost of constructing
a highway.      LIn this connection,         attention     is called    to the fact that the
Federal    Government pays a part of the costs of rights                  of way and under
23 U.S.C.A.     Section     23, it is provided       that the term “construction”           includes
“the cost of the rights          of way:/.      There is no specific        appropriation      for
the payment by the Righway Department of the cost of rights                      of way, and
such payment must necessarily           be paid out of the appropriation             for’kbimtruct-
lug” highways.        Therefore,     it clearly     appears that the appropriation           under
Section    23 of the State Appropriation            Bill aforesaid      for “constructing”
highways will include          the cost of securing        rights   of way by condemnation
proceedings.       This   leaves   only   to  decide    if   court  costs expended in condem-
nation   suits    in acquiring     rights    of way is a part of the cost of such rights
of way,

             1n acquiring     rights     of way, either    by purchase or by condemnation,
there are certain      elements      that go into the cost of securing         the smse as
well as the actual       amount paid for the land alone.            Before the Highway
Department will make an offer            to a land owner for his property,         it is neces-
sary that the Department employ appraisers               to value the property.        It is the
POliCJp  of the Department in each case to employ two appraisers                  who work
independently    of each other.          It may be necessary     for the Department to
employ other persons       for work in connection         with the acquisition       of rights
of way.    If  any  private     utility     should be  forced   to  file   a suit  to  condemn
property   for a right of way, it certainly           would charge such expenses          just
mentioned    es a part of the cost of such right of way.                 Can it be said,     then,
Wonorable   D. C. Greer,   Page 3 (WW-472).




that such costs incurred      by the Righway Department      is not      properly   a part
of the cost of securing      the right of way?

           If the Department is unable to purchase           the property    after  going
to the expense above mentioned and it is necessary             to file  a suit to con-
demn the property     and in such suit the court costs         are adjudged against
the State,   the State must pay the same.         Why, then, are such court costs
not as much a part of the cost of securing           the right of way as the cost
of employing    appraisers    and other expenses     in securing    the property?    Even
the cost of employing      attorneys   to prosecute    a condemnation    suit would be
a proper item of cost of securing         the rights   of way, but we will hereinafter
see that the appropriation       hereinafter   mentioned has provided       for this item
of cost of the rights      of way.

            The other   provision   at page   1004 reads   as follows:

                   “The State Highway Cmission          is authorized    to
            direct   the State Comptroller       to transfer   funds as
            it may consider     necessary    from the State Wighway
            Fund to the appropriated        funds available    to the
            Attorney   General for the purpose of meeting the
            expenses    and salaries    of the staff    of the Attorney
            General in the handling       of the legal work of the
            State Highway Department for the purpose of acquir-
            ing State Highway right of way.          Any unobligated
            balances    in such transferred      amounts at the end of
            each fiscal    year of the biennium beginning         Septem-
            bar 1, 1957, shall revert         to the State Righway Fund.”

            It seems clear     that court costs   should not be paid out of the
funds provided     for in the above quoted provision,      for the reason that it
expressly   provides     that such funds are to pay the “expenses      and salaries
of the staff    of the Attorney     General in handling   the legal work of the
State Highway Department for the purpose of acquiring          State Highway right
of way”.    We do not believe      that court costs can be claimed as an “expense”
or “salary”    of the staff    of the Attorney   General.   Therefore,   it is our
opinion   that this fund is not a proper fund out of which to pay court costs
in condemnation      suits.

          ‘fhe third and last       appropriation  above mentioned     is Section      30,
page 947 of the appropriation        for the Attorney   General’s  office   which
reads in part as follows:

                   “For the purpose of paying necessary       salaries
            for attorneys,    accountants,    collectors   and stenog-
            raphers,    court costs and other ~necessary expenses
            for collecting    delinquent   corporation   franchise
            taxes.    . .‘I
Honorable   D. C. Greer,   Page 4 (WW-472).




           Only the sum of $7,000.00     is appropriated     in the above item for
the two years of the present     biennium.    The entire   amount:appropriated      in
the above item would not be five, par cant,      it is estimated,     of the amount
needed to pay the court costs      in the condemnation    suits.    It certainly
was not contemplated    that this small appropriation      should take care of
such a large item of expense in condemnation       suits,    as well as the other
items mentioned.    Also,~ there ere some condemnation       suits under Rouse Bill
620, above mentioned,    where the Righway Department will be required           to pay
a part of the court costs     in suits filed   by a county.

           Rven if the appropriation        to the Attorney    General should be larger
and enough to pay the costs of condemnation          suits,  the fact that the Legis-
lature did make a specific      appropriation    under Section    23 of the Highway
Department Appropriation     for construction     of&$&ways,      which will include  the
cost of rights   of way, which will      include  court costs    in securing  the same,
shows, in our opinion,     that no part of such court       costs should be paid out
of the appropriation    for the Attorney      General.

             In view of the above, you are advised that court  costs in con-
demnation suits should be paid out of the appropriation     in Section 23,
page 1002 for the Highway Department and should not be paid out of any other
appropriation.

                                         SUMMARY

                    Court costs in condemnation  suits filed  by
                 the State should be paid out of the appropriation
                 for the Righway Department contained  in Section  23,
                 page 1002 for the biennium ending August 31, 1959.

                                            Yours   very    truly,

                                            WILL WILSON
                                            Attornyy General         of   Taxes




                                                Assistsnf
HGC:fb:pf
APPROPED:
OPINIOW COMMITmE

J. C. Davis, Jr.,    Chairman
Marietta  M. Payne
Tom McFarling
Jack Goodman
Henry Braswell
RRVIRWRDFOR TIlE ATTORNRTGHNRRiu
By:   w. V. Geppert.
