I       -




    Honorable G. E. Rigby
    County Auditor, Uvalde County
    Uvalde, Texas

    Dear Sir                        Opinion No. O-6764
                                    Rsr Procedure of the Commissioners'
                                         Court of L?valdeCounty to ss-
                                         curs the right to enter the prop-
                                         erty in question and survey for
                                         the right-of-way.

             Your letter of Deoember 9, 1943, requesting the opinion of
    this department on the above stated matter reads, in part, as follows%

             "I would like your advice on the following situation
        that has arisen in this County.

            "The State Highway Dspartment's Engineers are laying
       out a proposed new route for a State Highway between the
       towns of Sabinal and Utopia,,in Gvalde County, and in
       making some of their surveys, have found it necessary to
       enter upon the lands of individuals. One individual has
       ordered the Engineers off and have forbidden them to come
       on his premises again. 1 would appreciate knowing what
       legal rights the County Commissioners have in this matter,
       and what procedure they must go through in order to secure
       the right, to enter the property and surrey for ,theright-
        Of-way."


             Article 6674n, Vernon's Annotated Civil Statutes, authorize
    any commissioners' court to scours by purchase or by oondamnation on
    behalf of the State of Texas, any new or wider right-of-way or land
    not exceeding one hundred feet in width for stream bed diversion in
    aonnection with the locating, relocating or construction of a des-
    ignated State Highway, or land or lands for material or borrow pits,
    to be used in the construotion, reoonstruction, or maintenance of
    State Highways.

             This statute further provides that in the event of condemation
    by the oounty the proaedure shall be the same as set out in Title 52,
    Articles 3264 to 3271, inclusive, Revised Civil Statutes of Texas, 1925.
    The provisions of this statute charge the State Highway Commission with
    the duty of furnishing to the oounty commissioners' courts the plats
    or field notes of such right-of-way or lands and the description of such
    material as may be required, after which the commissioners' oourt may,
Honorable G. E. Rigby, page 2



purohase or condemn the same, with title to the State of Texas, in ao-
aordanoe with such field notes.

         As we understand the facts in your latter, a certain individ-
ual has refused to permit the engineers of the State Highway Dspartment
to enter upon his property for the purpose of making certain surveys
for the purpose of locating the route of highway in question. The
power of designating the route of the highway rests in the Highway De-
partment. and not in the Commissioners' Court. (See the case of San
PatricioVCounty v. Maxwell, et al, 56 S. W. (2d)'296 and authorit=
aited therein).

         We quote from the above mentioned case (San Patricia Countyv.
Maxwell, et al) as follows:

        "Moreover, it is apparent that, in the matter of des-
   ignating in detail the route to be followed by State Righ-
   ways the actions of the Highway Dapertment, being disare-
   tionary acts purely administrative in their nature, cannot
   be direoted by the courts or halted by them except in pos-
   sible extraordinary situations not disclosed here. ++**"

         We quote from the casa of Eobbitt, et al, v. Gordon, 108 S.W.
(Zd) 2S4, as follows:

        n* * +we quote the following proposition from Johnson
   v. Ferguson, (Tex. Civ. App.) 66 S. W. (2d) 155, 159, 160,
   as the correct statement of the law, controlling the exer-
   cise by the Highway Commission of its discretion in loca-
   ting e public road: 'In matters of Judgment touohing the
   commissioners' functions, theirs, and not that of another,
   is supreme. Certainly their acts other than those of a
   purely ministerial nature should not be stayed at the hands
   of the court, and the important functions of the department
   therefore impeded or impaired, except upon verified allega-
   tions of fact showing unequivocally that they are exceeding
   the bounds of their legal authority; and es certainly,
   their acts in the exercise of an honest discretion, must be
   respected when untainted by fraud and unassailed on account
   of accident or mistake occurring in their performance, or
   such abuse of discretion as under the authorities would a-
   void the same."'

         As the Stats highway Commission is charged with the duty of
furnishing to the county commissioners oourts the plats or field notes
of such right-of-way or land as may be required there is no duty im-
posed upon the county commissioners' aourt to secure the field notes
or plats of suah right-of-way or land. Therefore, it is our opinion
that there is no action to be taken by the ooasaissioners'court re-
garding the question under consideration. For the purpose of this
Honorable G. E. Rigby, page 3            O-5764



opinion, we are not concerned with the question of the State Highway
Commission securing the field notes or plat of the right-of-way or
land hsretofore mentioned. Therefore,  this opinion is not to be con-
strued es expressing any opinion concerning the duties, powers or
rights of the State Highway Commission in scouring the plat or field
notes of the right-of-way or lend on which the survey is desired to
be made.

                                           Yours   very truly

                                         ATTORREY GENERAL OF TEXAS



                                           By s/Ardell billiams
                                                Ardell yjilliams
                                                      Assistant

AW:EP:wo


APPROVED DEC. 23, 1943
 s/Gerald C. Mann
ATTORNEY GENERAL OF TEXAS

Approved Opinion Committee By s/BWB Chairman
