OFFICEOFIHE   A'170RNEY GENERALOFTEXAS
                  AUSTIN




Honorable D. C. Oremr
Stats fiighwayXnglmor
Aurrtin,Teaa

Dear Sir:                 Opinion No. 0485E
                          .Ber The authority of the
                               Etato blghway Department
                               to require hQhway oon-
                               ld!uo tio   o onntr a a to
                                                        tor a
                               two paint puroha8ed and
                               omd   by tha State of Texas
                               and deduot the uoat of suoh
                               paint from the oontraotor'a
                               Axmthly sstlmate8.
      ke aoknomlgbge reoeipt oi your request r0r en oeinlcn
of thie Deportlmt on the question arrto whether the 4ate
highway Departimnt ia authodmd to pur~hmm paliSt be LIEO~
on all maintenanoo and oonetruotlon work ‘ml require al9
oontraotorr rer.oons+uotlon of Mrk to use the paint’ao   pur-
                                           eatiwte -the 90')
ohassd and .to~doduot. Zmm tfre..oontraotcpt'a
of the.gialnttied by #ueh oontraotor.                    7
     'The exo'luilveand 8010 l&hitirrtratire~qontrolof the
&ate d.ghwayr Fe tested in the state &&&my    Qomiaaion.
(Art. 5663 fi.C.8,) In the odm oi k%m.v.     Be&n, 46 S. W.
(2d) 586 (6om.App.), the oourt saidt
          V&e &foot of t&e prwmt     statute (Vsrnon~s
      imnotataa Cirfl Statutor,-Art,6666~et seq.1 on
      the subjoot is to ve6t admfnietratlre oontrol of
      all public road8 whioh might be a pati of the
      Eon. D. C. Crew,   page 2


           state highmy system in the state hi(zhwaydepart-
           ment, with reepeot to the designation, lboatlon,
           relocation, I~prov:znent,construction, abandonment,
           or discontinuance thereof. chatever said deoart-
           ment may do in the premisea, in the exercise of
           eu honest discretion, must be respeoted when
           untainted by fraud and unassailed on aooount of
           accident or cisteke ooourrihg In their performanoe,
           or suoh abuse of discretion as under the authorities
           WOUld SVOid the ABme." (Undersoorlng ems)
i-.
 I          ns above held It la solely with the Ltate highway
      Commission to determine the manher In whioh aaid highway
      should be oohstruoted and their deterrrinatlonoan be assailed
      only it it is tainted with some speoles of fraud.
            If the state highway Comiesion determines that the
      interest of the.Et&e will be beat served by requiring  all
      contractors to use paint aoqulred by the State Highwa'y*De-
      partzmnt as above rot forth that is a matter that can be
      determined only by the btate al&way ComuIssion. In the
      eeee of Losheim v. kollins, 79 S. b. ($33)678, the Court of
      Civil Appeal6 held:
               -'The&ate hli'hwayConunlsslonIs authorized
           to take over and maintain     the various   state high-
           wuye in Texas, an6, In aooompliahiug this duty
           imposed upon it, the judtgnentot the highway
           Commission, and not of eomaone else, 18 euprem.
           The faot'that there are better my8 of maintaining
           the highways is unlmportant.w     (Undersoorlng   owa 1

            hot only do ve bell&e that the broad grant of powers
      to the State highway Ccwmlsslon authorizes the purohase and
      L+ndling of paint as outlined In your request, but we be-.
      liere that Artiole 6674k, hevised Cirll Statutes is au ex-
      press authorization 80 to do. Sal6 Artlole being as follower
               *The State Flghway Cormniasionshall prescribe
           the form of suoh contract and may Inolude therein
           such rotters as they may deem advantaneous to the
           State.n
            Go ( thererore, see no reason why, If the State hi&?.?.way
      Commission determInes that it would be edranteCeou8 to the
      Ltate, eald Comlsslon cannot require all contractors to 1288
L   -




        a0n. U. C. Greer, page 3


        paint which has theretofore been purchased by the state
        hlghwey fiepartmmt and deduct the cost of such paint from
        the estlmtee of the contractors. You are, therefore,
        advised that our answer to yc,urinquiry la in the ai'flnue-
        tlve.
              However, this opinion Is not to be oonstrued as auth-
        orizing the state Ughwey Department to oherge oontreotore
        more than cost because we find nothing in the law that would
        authorize it to engage in a proprietary enterprlae.

             om   SEP 19, 1941             Yours vary tNly
