                        NEY          NEIRAIL

                       TEXAS




                        August 6, 1948

Hon. W. R. Baldridge           Opinion No, V-652
County Attorney
Denton County                  Rs: Authority of the Com-
Denton, Texas                      missioners'Court to
                                   use the described road
                                   bond funds to erect
                                   bridges, culverts,and
                                   approaches to connect
                                   private property to
                                   farm-to-marketroads.
Dear Sir:
           Reference is made to your recent request
which reaall, in part, as Pollows:
         'Pursuantto the provisions of ArtI-
    cle 3, Section 52, sub-section (c) of the
    Constitutionof Texas, and Article 752a,
    R, C, S, 1925, (Acts 1926, 39th Leg., 1st
    cas.* P. 23, Ch. 16, #1) an election was
    held In Denton County, Texas, on the 5th
    day of November, 1946, and the following
    issue was carried by more than a two-thirds
    majority, to-wit: 'For the issuance of road
    bonds and the levy of ad valorea taxes In
    payment thereof, to-wit, $25O,OOO road bonds
    for,the purpose of,purchasing rights-of-way
    and to pay all necessary costs and damages
    Incident thereto," The bonds were issued
    and sold and the proceeds were deposited
    in a fund known as 'Right-of-wayfund,"
    The said fund has been paptlallj consum-
    ed and expended In purchasingrlght-ef-
    way for farm-to-marketroads and In pay-
    ment of condemnationawards*
          910 title to the roads and right-of-
     way aforesaid was placed in the State of
     Texas, the State of Texas built the roads
     and-has assumed the obligationto repair
     and maintain said roads,
Hon. W. K, Baldridge, page 2   (V-652)


          "As a result of the constructionof
    the roads, drainage areas and ditch back
    slopes, travel from the road to private
    adjoining property became difficult and
    impossible in some instances, At the re-
    quest of some owners of adjoining private
    propept7, some county commissionerserect-
    ed culverts,bridges and driveways across
    ditches conneotingprivate property with
    the raadway O O o
           * 0 0 I shall appreciate it very
    much if you will give me your opinion as
    to whether the County CommissionersCourt
    can expend an portion of the said 'Right-
    of-way Fund9 7derived from the sale of
    bonds as aforesaid) for the construction
    and erection of bridges, culverts and ap-
    proaches connectingprivate property with
    State designated and maintainedFarm-to-
    market roads, I call your attention to
    the fact that the bridges and culverts
    are constructednot upon private propsr-
    ty but in and upon the highway rlght-of-
    way and in the aitche$ and drainage areas
    of said right-of-way.
         Article 66749-4 provides,   in part, as follows:
          "All further improvementof said
     State Highway System shall be made under
     the exclusive and direct control of the
     State Highway Departmentand with appro-
     priations made by the Legislatureout of
     the State Righway Fund. Surveys, plans
     and specificationsand estimates for all
     further constructionand improvementof
     said system shall be made, prepared and
     paid for by the State Highway Department.
     No further Improvementof said system
     shall be made with the aid of or with any
     moneys furnished by the counties except
     the acquisitien of right-of-wayswhich
     may be furnishedby the counties, their"
     subaivialonsor defined road districts,
          It is stated by the court In the case of Gab-
bert v. City of Brownwood, 176 S,W,(2d) 344 that:
          "It is settled by the decisions that
Hon. W. K. Baldridge, Page 3   (V-652)


     the last quoted statutory provision did
     operate to transfer the former jurisaic-
     tion of counties and/or county commis-
     sioners' courts over state highways with-
     in county limits to the State Highway Com-
     mission.
          The bond issue in question was voted for the
purpose of "purchasingrights-of-wayand tg pay all nec-
essary costs and damages incident thereto.
          The Court, in passing upon this question in
the case of Fletcher v. Ely, 53 S.W.(2d) 817, writ re-
fused, lays down this well-settledproposition:
          "That, when the voters thus speak,
     the proceeds of the bond Issue are 'ear
     marked' with the character of a trust
     fund which may not be diverted to anoth-
     er purpose or project, any such attempt will
     be enjoined by a court of equity. The re-
     sult thus obtained has been referred to as
     having the binding effect and force of a
     contract. Black v, Strength, 112 Tex. 188,
     246 S.W. 79; 19 R. C. L. ppe 1163, 1164;
     Roane County Court v. t'Brisn, 95 W. Va.
     32, 122 S.E. 352, 355.
          In view of the foregoing, It is our opinion
that the County Commisrianers Court may not expend any
portion of the said right-of-wayfund for the construc-
tion and erection of bridges, culverts and approaches
connectingprivate property with State designatedand
malntslnedfarm-to-marketroads.
                       SUMMARY
          The County Commissioners1Court may
     not expend any portion of the Right-of-
     way Fund (derived from the sale of bonds)
     for the constructionand arection of bridges,
     culverts,and approaches connectingprivate
     property with State designatedand maintain-
     ed farm-to-marketroads. Fletcher V. Elg,
     53 s,w.(2a) 817.
                                   Yours very truly,
                               ATTORNEY GENERAL OF TEMS



                                  Assistant
