Honorable Geo. H. Sheppard
Comptrollerof Public Accounts
Austin, Texas
Dear Sir:
                           Opinion No. O-1745
                           Re: Payment of court costs in con-
                                demnation proceedingsbr6ught-
                                under Article 667&n, V.A.C.S.,
                                by a Commissioners'Court.
By your letter of November 28, 1939, you ask the opinion of this
department upon the following questions:
     "1. Where the,condemnation.proceedings were brought under
     Article 6674x-t,
                    V. A. C. S.; by the Commissioners'Court of
     a county other than Travis, may the Highway Funds be used
     for the payment of court costs and for the actual payment
     of right of waysl
     "2. If such-HighwayFunds may be used for the payment of the
     aourt costs, is it proper that the warrants issue to the in-
     dividuals to whom the fees accrue, or should the warrants
     issue to the County Clerk in payment of court costs end the
     County Clerk, in turn, pay the witnesses and other items of
     the.court costs?
     “3. In aase an attorney is appointed to represent the State
     in the condemnationproceedings,then may fees for such
     attorney be paid out of the Highway Fund, or should they be
     paid out of the appropriationmade for the Attorney General,
     if payable at all?
Article 667&n, Vernon's Revised Civil Statutes, reads as follows:
     Whenever, in the judgment of the State Highway Commission,
     the use or acquisition of any land for road, right of way
     purposes, timber, earth, stone, gravel or other material,
     necessary or convenient to any road to be constructed,recon-
     structed, maintained,widened, straightenedor lengthened;
     or land not exceeding one hundred (100) feet in width for
     stream bed diversion in connectionwith the locating,
Honorable Geo. H. Sheppard, Page 2    o-1745


     relocatingor constructionof a designated State Highway by
     the State Highway Commission, the same may be aoquired by
      urchase or condemnationby the County CommissionersCourt.
     i rovided that the County in which the State Highway is located
     may pay for same out of the County Road and Bridge Fund, or
     any available county funds.
     "Any CommissionersCourt 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 hun-
     dred (100) feet in width for stream bed diversion in connec-
     tion with the locating, relocating or construdtionof a
     designated State Highway, or land or lands for material or
     borrow pits, to be used in the construction,reconstruction,
     or maintenance of State Highwa s and to pay for the same out
     of the County Road and Bridge $und, or out of any special road
     funds or any available county funds. The State Highway Com-
     mission shallbe charged with the duty of furnishing to
     the County CommissionersCourt the plats or field notes of
     such right of way or land and the descriptionof such materials
     as may be required, after which the CommissionersCourt may,
     and is hereby authorized to purchase or condemn the same,
     with title to the State of Texas, in accordance with such
     field notes. Provided that in the event of condemnationby
     the County the procedure shall be the same as that set out in
     Title 52, Articles 3264 to:3271, inclusive,Revised Civil
     Statutes of Texas, of 1925. Provided that if the County Com-
     missioners Court of any County in which such right of way is,
     in the judgment of the State Highway Commission necessary
     for the constructionof a part of a designated &ate Highway
     shall fail.or refuse to secu.reby purchase or by condemnation
                                              such rigRt.'of~way oi-
     for or on behalf of the State of Ti?%.as,~
     pbrk@r8tvf; immediatpryand as speedily as possible, under
     said Title 52, Articles 3264 to 3271, inclusive,Revised
     Civil Statutes of Texas, of 1925, after being served with a
     copy of an order of the State Highway Commission identifying
     by field notes, the part of the Highway necessary for the
      constructionof such designated State Highway and requesting
      such County CommissionersCourt to secure same, then and
      in such event and within ten (10) days after the service of
      such notice, said State Highway Commission shall direct the
     Attorney General of Texas, to institutecondemnationproceed-
      ings in the name of the State of Texas, for the purpose of
      securing such right of way. The right of eminent domain to
      condemn any part of a right of way for a State designated
      highway under the conditions herein set out is hereby con-
      ferred on the County Court of Travis County. Such condemna-
      tion proceedings shall be institutedby the Attorney General
      by filing a statement for condemnationwith the..County   Judge
      of Travis County,~Texas,and the venue of such proceeding
      shall be in Travis County, Texas, and jurisdictionand
Honorable Geo. H. Sheppard, Page 3   o-1745


     authority to appoint three (3) disinterestedfreeholdersof
     Travis County, Texas, as Commissionersis-herebyconferred-~
     bpon:the-CountyJndge of Travis Courity,'.Texas;,and'otherwise
     j3uohcon8emnationsbzilPbe according to the provision of
     said Title 52, Articles 3264 to 3271, inclusive,Revised
     Civil Statutes of Texas, of 1925."
The aase of Traders Compress Co. Y. State et al, (Civ. Ap.)
77 S. W. (2) 245, has the following to say about the statute
above quoted:
     "In a condemnationproceeding, such as this, institutedand
      rosecuted by the Commissioners'Court in behalf of the State
     Righway department,no provision is made by the statute obli-
     gating the State to pay compensationfor the land secured...
     "This statute does not impose on the Commissioners'Court
     the duty of securing land for the purposes therein specified,
     but does require that if the authority granted be exercised,
     the Commissioners'Court pay for the land purchasedor pay
     the damages for the land condemned out of the county road and
     bridge fund or out of any special fund that may be provided
     by law.
     We do not think any one would contend, if the Commissioners'
     Court should purchase land for the State under this statute,
     that the State would be obligated to pay the owner the pur-
     chase price. Neither, in our opinion can the State be bound
     by a judgment against it obtained in a condemnationproceed-
     ing institutedand prosecuted in the name of the State by
     the Commissioners'Court under this statute."
vJherethe condemnationproceeding is brought under 667&n by the
Commissioners'Court of the county, the expenses of prosecuting
such an action, including the court costs, and the amount necessary
to actually pay for the right of way condemned,are to be paid by
the Commissioners'Court out of the funds of the county desig-
nated in Article 6674n. In such a sktuation the Commissioners'
Court is without authority to obligate the State Highway Fund for
the payment of court costs, and for the actual payment of right
of way, or for any other expenses incident to the maintenanceand
prosecutionof the condemnationproceedings.
It follows that your questions are to be answered as follows:
1. Where condemnationproceedings are brought under Article 66M
by the Commissioners'Court of a county, the funds of the State
Highway Department may not be used for the payment of court costs,
or for the actual payment for right qB way.
Honorable Geo. H. Sheppard, Page 4       O-1745


2. In view of the answer made to your first question, your
second question need not be answered.

3. Attorney's fees incurred by the Commissioners'Court in the
prosecutionof condemnationproceedings under Article 6674n
are to be paid by the Commissioners'Court out of the funds of
the county designatedby such Article of the statutes. No authority   i
to represent the State as such in quch proceedings,and obligate
the State Highway Department or the Attorney General to pay the
fee of such an attorney.
                                     Very truly yours
                                ATTORNEY GENERAL OF TEXAS


                                BY
                                         R. W. Fairchild
Rb'F-MR

          APPROVED D!$. 11, 1939
            Gerald C. Mann
          ATTORNEY GENERfiLOF TEXAS
