             OFFICE   OF THE ATTORNEY GENERAL   OF TEXAS
                                AUSTIN
 GROVER SELLERS
 ATTORNL~ GLNERAL




I&O Donald E* treey i
county blctirtor
rlq or corm ty
Kermit, rexar
Dear Hr.   Traoyt              Oplnlon lo. O-7428

                               Aer tmder Artlole 66
                               TlnlclerCoun tT
                               for snwve~ing
                               notes for a p
                               nay, where the




                                                 to your letter,
which reads as fol10W




                                      of the oanstruotlm
                                     &ray Department .
                               know whether the above Is
                               e 6674q-4 of 1943 supple-
                        xas Statutes.
                    oslng copies of letters between
                      ray
                       Department and the County
     Judge which may olarlfy the point nf the Rlgh-
     way Department taking over the road.'

          Prom the copies of the letters attached to the opla-
Ion request, and f'roma copy oi'the oontraot which has heen fur-
nished US made by the engineer with Tinkler County, it appears
that Tlnkler County has been endeavoring for serernl years to
construct a road from Kermit to the line or Andrewa County, and
Mr.   Donald E. Traoy - page 2




ban been endeavoring to aat the Mate   Ele;hwajDepartment   to oo-
oper)ts with aald venture.
          It appears that on April 24, 1946, the County made a
oontraot   81th
              the engineer to draw plans and speoliloations and
supenlse the building of oertaln roads In Winkler County. The
oontraot states that the englneer is to reoeive oertaln sums
for the oempleted right-of-way  surveys, lo~atlon, platting and
legal desorlption for the Andrews road , and a different amount
tor the pipe-line road from Wink-
          From Information furnished to us by the State Blghwaj
Departmeat, the read from Kermit to the Andrews County line on
May 89, 1940, was designated as a portion of the State Highway
s7stem. On August 24, 1946, the State Highway Department oan-
oeled this desl@atlon.
          We hare also been Informed by the State SJlghsaJCom-
mission, as well as the County Judge of 'llnklerCountr, that
there Is a plan on foot whereby It 15 hoped an agreement oaa
be inadewith the State Highway Coa?mlsalon and Wlnkler County
to hare the~road in question designated as a farm-to-market
road, and thee hare same oompl ettd by the County snd the State
Si@wa;l Connnlssionjoint17 as such road.
          We are not Informed how much of the work was done, ii
any, by the engineer between Hay 29th and Aagttst 24, 1046, while
this road was a part of the state Rigbray system* IleltberIs
there any way for u5 to tell from the lnformatlon furnished the
amount the engineer desire5 the County to pay him at this time.
          Under Artiole 0814q-4, Gited by you, the County Is
not authorlaed to expend any of the County s funds on roads that
hare been designated as a part of the State Highway systemj
nejther Is there any provision In said Artiale eor the State
Alghway Department to aooperate with the County In building any
portion of a road that has been Beslgnated as a part or the
State Highway system.
          Under Article 6673-o. the State HlKhway Commission Is
luthorlaed to deslgnate any oountj road as a farm-to-market
road *for purposes of COnsttWOtim  , re-construction and malnte-
nones only * + *e and provided furthor that the state Highway
Commission and the Comissinners   Court of the oounty in whloh
any such road is looated may enter into a contraot that shall
set forth the duties of'the State In the onnstrtlctlon, reaon-
struction and maintenance of the county road, In consideration
&!r. Donald B. Tracy - Cnae 3




of the oounty and/or road districts relinqutshtng nny and all
olaims for State part3aipatfoa in any county, rend distriot or
defined road dlstrlot bonds, warrants, or other evidences of
indehtodness outstanding;against such road.'
          ?rom the ‘infarmafioa Purnlshed we cannot ansver ca'te-
gorloally the questions you hare propounded.
          At the ti.@etho County entered into tha contraat with
the engineer in April, 1948, the County was authorized to make
a contraot to hate the roads surveyed, plattorland aonstruoted,
beoause It had not heen desigrtatedas a State hlghway. For the
work done by the en@.neer while tho road was or is a county
road, he can he paid out of Ownty Punds. xe the road skauld
be designated by the Stato Elghwn~ CornmiarinnRO a Pan?-te-Tar-
ket road, then the work thereafter done muet be rflth the ap-
proval aP the State FigMay  Conmisoion.

                  The contruct      which   tke   county ~nde          rith    the    cnclnecr
is    extremely       arrW.guous    In rdbrcnce        to    the    yrjce     t.keCounty is
to ;ay US the work progressed.
           AS above dated,  Article db74q-4 cf the Ravised St.at-
utes r\rohibltsthe Colmty from spending any oP Its fund?ion
rcrads that hare hoen dosigated an a part OP the State Higkway
system. ‘The statute authorizing the dt?BtpYatim  br tk% State
IJlghway Co~~~lssionaP Parm-to-?narketroads sutkcrizes the county
and    t.be   State    JiiFhwsy    Comls~ion      td   entor       into   n   joint    arseoment
Par the bulldinE oP a lamto-market   road. There is, hr)wever,
no law which autknrlaes the aountf And the St.ateitixxhtray    SOIS-
mission to jointly construot a road which kAn hecn dos~.gnAtcd
a~ Fart aP the State IfiFhwnysystem.
           Your question yeAente   R situation t.katin not autkor-
lzed by tho statute, in that you state the roar? in qusstion is
being cantdrueted  or built.partly by the Stabe fllghvay  depert-
mcnt and partlr by the CeuntY,   while the erldenoe shows that 1 t
ha*    not    been    aenipmatcd     ~5   a fern-to-nark3t            rma.
                Sinae the Cnunty trndtl>%ri@'t.to ~alrc the contract
fn  question on April 29, 39415,ft in our eyjnion,                        under the
anthnrlty of le3t Audit co. v. Ynakum Colmt?,                      35   S.    v.   (2) 404,
the    Condssianers         Court   md  f,??e en(Tjno.“r     O:XY~~ Ad just        their
ojfrt-+?ncoa,nn,!the Cnuntr aoald ?a~ the onrineer nn a qnuntum
meritItbasjs for tkc war?: he t-senerenmod.                      UnquC!ntil?nahlp,        110
think-;,   tbjc   na~~lcl he   true  If the   Ftctu    !‘l,rhaof     Ccnmjsnjrr nnd
3fr.Donald I?.Traay - page 4



the County flnrlly reroh 8n agreement under which the road in
question is to be designated as a farm-to-market road.
          We are sending copies of this opinion to the State
ni@IaJ  Commission,  the engineer  emploJed by the County
                                                        and
the County Judge ot;Winkler   County.       :



                                 Very   truly yourn

                            ATTORNEY Cf%ERAL OF TEXAS


                            By      A3.-
                                           itear1. Barous
                                                ASSISTAXT
