       /’




‘.a.

                   THEAPTORNEYG~GNEFCAC
                               OF




            Hon. Sidney J. Brown    Opinion No."V-578.
            County Attorney
            Fort Bend County        Re:   The obligation of the Coun-
            Richmond, Texas               ty to pay for lands purchased
                                          to provide materials to be
                                          used by the State Highway De-
                                          partment in constructing a
                                          highway under the submitted
                                          contract.
            Dear Sir::
                     'The facts which are the subject of your re-
            quest may be briefly summarised as follows:
                      On June 18, 1945,the State Highway Commis-
            sion and Fort Bend County entered into a contract re-
            lating to the construction of FM Highway No. 359 in
            Fort Bend County. By the terms of the contract, which
            you have enclosed, the County agreed to remove or aban-
            don any encroachments on said road or right-of-way at
            the expense of the County and to obtain at the Coun-
            ty's expense any new or additional right-of-way upon re-
            quest of the State on location to be approved by the
            State Highway Engineer. The State agreed to construct,
            reconstruct; and or maintainthe highway at the sole
            cost and expense of 'the State., $Ihile'the highway was
            being constructed, the Resident Engineer of the High-
            way Department requested the County to obtain two tracts
            of land in order that the soil therefrom could be used
            in the construction of the highway,. The County obtain-
            ed both the tracts, one through negotiated purchase at
            a cost of #90.00, and the other by condemnation which
            resulted in considerable expense to the County.
                      Based upon these facts, you ask the follow-
            ing questions:
                      "(1). Under the contract copy'of which
                 is enc,losed,is the County ~obi&$ated-~oTurn-
                 ish any material to be used by tht~~@gh~+..~
                 Commission in the construction of,Highway FX    _(
                 No. 359?
Hon. Sidney J. Brown, Page 2,   V-578.


          (2) If your answer to question No.
    (1) i: in the negative, then is the Coun-
    ty entitled to reimbursement by the State
    Highway Commission of the following costs
    expended by it in connection with the ac-
    quisition of the above mentioned materials,
    namely, soil to be used as binder; (a) the
    actual sums paid to the landowners for the
    materials; and (b) attorneys fees; and (c)
    court.cbsts.'J
          Under the terms of the contract, 'the County
obligated itself, among other things, to obtain at its
expense "any new or additional right-of-way upon re-
quest of the State on location to be approved by the
State HighflayEngineer should same be considered rs c-
essary or desirable to the proper maintenance, construc-
tion, or reconstruction of said road as a part of the
State system." At the time these terms were agreed
upon Article 667&n, Vernon's Civil Statutes, was,and
stili is in effect. That Article expressly empowers
any Commissionerst Court to secure by purchase or con-
demnation right-of-ways for materials or borrow pits.
The pertinent provisions are:
          "Any Commissioners Court is hereby
    authorized to secure by purchase or by
     condemnation on behalf of the State of,
     Texas, any new or wider rightof way or
     land. . i or lands for material or bor-
     row pits, to be usea in the construction,
     reconstruction. or maintenance of the
     State highways'and to pay for the same
     out of the County Road and Bridge Fund,
  '. or out of any special rc,adfunds ,orany
   .,~availablecounty funds.: Th St t Hi h-
    'wavcommission shall 6e cha&edawzthZfhe
     duty of furnishing to the County Commis-
     sioners Court the plats or field notes of
     such right of way cr land and the descrip-
     tion of such materials as may be required,
     after which 'the Commissioners Court 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 if the County Com-
    ,missioners Court of any county in which
     such right of wa is,. '. . shall fail or
     refuse to secure y purchase or condemna-
     tion for or on beh.alf,ofthe State of Texas,
Hon. Sidney J. Brown, Page 3,   V-578.


    such right of way. . . then and in such
    event Andywithin ten (10) davs after the
    service of such notice,'said-state High-
    way Commission shall direct the Attorney
    General of Texas to institute condemnation
    nroceedinas in the name,of the State of
    Texas, foF the purpose of securing such
    right of way; . ."
Undoubtedly, this statute was in the.minds of the part-
ies executing the contract. It must be nresumed that
the parties understood that in the event'it became nec-
essary to acquire materials, such as contemplated in
this Article, such materials would~be ,acquiredk; ;g-
tue of the power grarxed in the said Article.
time the State requested the County to obtain the two
tracts of~,landfor materials, the County could have re-
fused to acquire the land, 'therebyrendering it incum-
bent upon the State to condemn or purchase the land.
But the County did not refuse or fail to comply with
the request ofthe State. Instead, it exercised the
power granted by Article 667l+n,and obtained both
tracts one by~purchase and the other by condemnation.
Having'acquired the land, the County was authorized to
pay for the same out of the YZounty Road and Bridge
Fund, or out of any special road funds or any avail-
able County funds." ;tiefind no provision requiring
the State to reimburse the County for expenditures thus
made.
          It was the State's duty to construct the high-
way at itsl'solecost and expense." Within this duty
certainly lay the obligation to bear the expense of ma-
terials used~to build the,highway, that is, nsterials
such as cement or asphalt, steel, forms, etc. All such
materials could be~purchased outright in definite *an-
tities. But, as to furnishing materials which could be
obtained through the acquisition of a right-of-way under
Article 6674n we believe the terms of the contract im-
posed that obligation upon the County.
          In answer to your first question, it is our
conclusion that the County isobligated to furnish that
material which could be obtained through the acquisition
d a right-of-way under Article 6674n. It follows,there-
fore, that since the County was obligated to furnish the
Hon. Sidney J. Brown, Page 4,       V-578.


materials inquired about, the County is not entitled to
reinhursement for (a) the actual 'sums paid to the land-
owners for materials;(b) attorney's fees; and (c) Court
costs.
                        SUMMARY
          Under the 'terms of a contract between
     Fort Bend County and the State of Texas,
     through the State Highway Department, where-
   : by the County is to,furnish "any new or ad-
     ditional right-of-way upon request of the
     State on location to be approved by the
     State Highway Engineer", and the State High-
    sway Department is to construct, maintain,
     and operate the highway at its sole expense,
    ~.theCounty is obligated to furnish mater-
     ials~which can be acquired by the acquisition
     of a right-of-way. Article 6674n, V. C. S.
        ,, The County is.not entitled to reimburse-
     ment~under Article 6674n for sums expended
     in condemnation proceedings in acquiring a
     right-of-way to be used for materials under
     the above-mentioned contract.
                            Yours very truly,
                       ATTORNEY GENERAL OF TEXAS


                 .,~
                       By   WE%eT            .
                                              Assistant


                       APPROVED:             ,.




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