.   -




                THE     ATTOWNEY          GENERAL
                                   EXAS




    Honorable James E. Jeffrey             Opinion No. C-302
    County Attorney
    Taylor County                         I Rer   Whether a county is
    Abilene, Texas                                 authorized to expend
                                                   county funds in coop-
                                                   eration with the federal,
                                                   state and city govein-
                                                   ments to carry on a
                                                   continuing comprehensive
                                                   trsnsportation   plan or
                                                   survey to acquire approv-
                                                   al for federal funds for
                                                   the construction    of
                                                   highways in urban areas
                                                   under the Federal Aid
                                                   to Hi hways Act of .1962,
                                                  ‘if (17 the survey Is
                                                   made completely within ;
                                                   the county, and (2’) the
                                                   survey is carried on to
                                                   some extent in an ad-
    Dear Mr. Jeffrey:                              joining county.
              You have requested   the opinion     of this   off ice   in regard
    to the above subject.
                Article 6663, Vernon’s Civil Statutes, vests control of
    the State   Highway Department in the State Highway Commission and
    the State   Highway Engineer.
               Article  6673, Vernon’s Civil Statutes, provides that
    the Commission Is responsible     for the highways in Texas and that
    the counties   are free from  any  cost, expense or supervision of   .P’
    such highways.
              Article   667h, Vernon’s Civil      Statutes,  defines’ certain
    terms that are used throughout Articles       6674a-6674n, Vernon’s
    Civil Statutes,   by reciting:
               “The term ‘highway’ as used in this Act shall
         include any public road or thoroughfare or section
         thereof and any bridge,   culvert or other necessary
         stru$ture appertaining   thereto.  The term I Improvement t
Hon. James E. Jeffrey,    page 2 (C-302)


     shall include construction,    reconstruction     or malnte-
     nance, or partial  construction,    reconstruction    or
     maintenance and

     the term ‘Department’ refers to the State       Highway
     Department. ” (Emphasis ours).
            You will note that the term “improvement” not only
includes “construction,      reconstruction   or maintenance, or partial
construction,   reconstruction     or maintenance,” but It also,includes
“the making of all necessary plans and surveys preliminary         thereto.”
(&nphasls ours 17
          Article   66746, Vernon’s Civil Statutes,   governs improve-
ment of the state’s   highways with Federal aid.    The aforesaid
article states :




     commissioners’ court of any county unless and until
     the plans and specifications  for said Improvement
     have been approved by the State Highway Engineer.
           n . . . It (Emphasis ours).

           The statute is divided into two categories      of highway
iSprovement, to-wit:      improvement with Federal Aid and improve-
ment without Federal Aid.      In the instance of Federal Aid, the
statute clearlv   snecifles   that such lmnrovement “shall be made
under the exclusive    and direct control of the State
                                     ssma~ly   th; Leogi:‘$%“““u;     ofe
statute further states r that “surveys, plans, specifications       and
estimates for all furt ;her improvement” shall b “made and prepared
by the State Highway Departmeniu.       O%lD
                                           hasis o&s).       In the i nstance
of improvement “without Federal
                             ---.~I Aid;” the statute’states     that they
may be made with or withou It county aid.    The statute also states
      .

,.I




      Hon. James E. Jeffrey,       page 3 (C-302)


      that when a county does participate, which would be in the case of
      improvement without Federal Aid, it must be with the approval of
      the State Highway Engineer.
                  The role   of a county,   :in highway Improvement, is further
      limited   by Article   6674q-4, Vernon's     Civii Statutes, which recites:
                  "All further improvement of said State Highway
            System shall be made under the exclusive    and direct
            control of the State Highway Department and with
            appropriations   made by the Legislature  out of the
            State Highway Fund. Surveys, plans and specifica-
            tions and estimates for all further construction
            and improvement of said system shall be made,
            prepared and paid for by the State High y Depart-
            ment. No further improvement cf said stttem shall
            be made with the aid of or with any moneys furnished
            by the counties except the acquisition    of right-of-
            ways which may be furnished by the counties,     their
            subdivisions   or defined road districts.   But this
            shall in nowlse affect    the carrying out of any
            binding contracts   now existingbetween   the State
            Highway Department and the Commissioners Court of
            any county, for such county, or for any defined
            road district.    . . .
                  "(a)   e . .
                  "(b)   0 e .
                  "(c)   . * -8'   (Emphasis ours).
                The United States Court of Appeals for the Fifth Circuit,
      in Bardin County, Texas v. Trunkline Gas Company, 311 F.2d 882
                 1963) 64 S DC0 49 cert. granted, 330 F.2d 789 (5th
                  original  judgment re-entered    and reaffirmed,   stated
                  role of the commissioners court relative       to highway
      improvement and contracts  pertaining   thereto,  saying:
                  "Basic Texas law dictates   that in the absence of
            a statute authorizing   some other agency to contract,
            the authority  to contract on behalf of a county is
            vested in the Commissioners' Court.     Anderson v. Wood,
            137 Tex. 201, 152 S.W,2d 1084. The contractual     authority
            of a Commissioners' Court is very limited and its limited
            nature is well stated in Canales v. Laughlin, 147 Tex,
            169, 214 S.W.2d 451, as follows:
                  'The Constitution     does not confer   on the Commis-
                                      -Y44D-
                                          - ,,
                                                                _.




Hon. James E. Jeffrey,      page 4 (C-302)


     .sioners Courts "general authority       over the county
      business" and such courts can exercise       only such
      powers as the Constitution      Itself  or the statutes
      have "specifically     conferred upon them."     See
     ,Mills County v. Lampasas County, 90 Tex. 603,
      40 S.W. 403, 404; Anderson v. Wood, 137 Tex. 201,
      203, 152 S.W.2d 1084, 1085. While the commis-
      sioners courtshave      a broad discretion   In exer-
      cising powers expressly conferred on them,
      nevertheless    the legal basis for any action     by
      any such court must be ultimately       found in the           . :.
     Constitution     or the statutes.'
           "Thus, if neither the Constitution      nor
     statutes emPower a Commissioners Court to make
     a particular    contract,  the contract is null and
     void.~ Nunn-Warren Pub11 hi        C      H t hi
     Ety,      Tex.Clv.App.,   45sS.?2d0&'j:;  A:d:ic??
     Dallas County, Tex.civ.ADD..      167 S.W.2d 560;
     Baldwin v. Travis County-,-46 Tex.Civ.App;       149,
     88 S.W. 480; and Dodson v. City of Del Rio,
     Tex.Civ.App.,    172 S.W.2d 125.
           "Review of the Texas statutes relating to
     State highways manifests that a Texas county
     not only is not authorized to contract to

     expending count                 . The statutes
     and authorities                  the authority
     of a county is limited to acquiring right-of-
     way for a State highway."  (Emphasis ours).
            The authority of a'county in re ard to the acqulsltion
of rights-of-way   is governed by Article 6873e-1, Vernon's Civil
Statutes,   which states:
           II
                .   .   .



            "The'various  counties and cities   aa
     hereby,authorized    and directed  to acauire
     sucn rlgnt of wa for such highways as are
     requested and au horized by the Texas Highway_
     Department, as provided by existing      laws,
     and In the event condemnation is necessary,
     the procedure shall be the same as that set
     out in Title 52,~ Articles    3264 to 3271,
     inclusive,    Revised Civil Statutes of Texas,
     and amendments thereto.


                              -144X-                             .
Hon. James E. Jeffrey,                 page 5 (C-302)


         II
              .   *   *   '   (Emphasis ours).
          An examination of the statutes and court decisions
regarding highways reveals that the authority    of a county is
limited solely to acquiring right of way, pursuant to the
request and authorization    of the State Highway Department.   The
statutes clearly  recite  t hat "allUfurther improvement" with
"Federal aid" shall be made "under the exclusive    and direct




That pertain to highway improvement and planning specifically
exclude the counties,   save-for  their lim3ted roie in acquiring
right of ways.   Therefore,   a county is not authorized to expend
county funds to carry on a continuing comprehensive transportation
plan or survey to acquire approval for federal funds for the
construction  of hi hways in urban areas under the Federal Aid to
Highways Act of.19 8 2, either within or without the county.
                                        SUMMARY
            A county is not authorized to expend county
      funds in cooperation   with the federal, state and
      city governments to carry on a continuing compre-
     ,hensive transportation   plan or survey in order to
      acquire approval for federal funds for the construc-
      tion of highways in urban areas under the Federal
      Aid to Highways Act of 1962, either within or
      without the county.
                                                 Yours very truly,
                                                 WAGGONER CARR
                                                 Attorney General



                                                     Assistant
RBJ:sj




                                           -144&-
Hon. James E. Jeffrey,   page 6 (C-302)


APPROVED:
OPINIONCOMMITTEE
W. V. Geppert,   Chairman
Pat Bailey
Gordon Cass
Roger Tyler
Sam Lane
APPROVEDFOR THE ATTORNEY
                       GENERAL
BY:   Stanton ,Stone




                            -1443-
                                          .
