                                      ENERAIL




Hon. 'CarrollF. Stilllvant Opinion No. V-1282
County Attorney
Cooke County               Re: Wh&ther condemnation pro-
Gainesville, Texas              ceedings for lands for
                 *.~            farm-to-market roads
                                should be Instituted in
                                the name of the State or
Dear.~Sir:                      the county.      .
           Your request for an opinion reads in part as
follows:                           .

         "Your opinion is requested as to the
    procedure necessary for the 'condemnation
    of land to be used as farm to market roads,
    partiizularlya8 to whether the proceedings
    are to be filed in the name of the State of
    in the name of the County.


         "It appear; that a prerequisite for
    the condemnation of lands for right-of-way,
    by counties, in the name of the ;gtate of
    Texas may be that such lands be reauired
    for state highways and that farm to-market
    roads are not part of any designated state
    highway as that term is used in the statute.


         "I have been unable to find any statute
    directly authoritltigcpunties to condemn
    lands in behalf of the State for farm to
    market roads, nor have I been able to locate
    any decisions of our appellate courts hold-
    ing that farm to learketroads are state
    highway@ within the contemplation of Arti-
    cle 6674n, R.C.S.
         "Piumeroustracts of land have been con-
    demned ln the n&me of the State, acting by
    and through the Commls~loners~ Court Of Cooke
    County, but I am inclined to the opinion that
Hon. Carroll F. Sulllvant, page 2 (V-1282)


     such procedure Is incorrect and that the
     Commissioners' Court should institute such
     proceedings in the name of the County and
     thereafter convey the right-of-way to the
     State. Your opinion with reference thereto
     is respectfully requested."
           Cossulssloners~courtshave the authority to
condemn land to be used for the construction of a road
either under the general eminent domain statutes (Art.
364 et seq., V.C.S.) or under the statutes relating
strictly tothe establishment of roads (Art. 6702 et
seq., V.C.S.). Tarrant County v. Shannon, I29 Tex. 264,
104 S.W.2d 4 (1937); Doughty v. DeFee, ,152S.W.2d 404
(Tex. Clv. App. 1941, error ref. w.o.m.). Article 3264a,
V.C.S., which confers the right of eminent domain upon
counties, provides that condemnation proceedings shall
be Instituted under the direction of the oommlssioners'
aourt and In the name of the county. The only authority
for counties to institute such proceedings "on behalf of
the State of Texas" and "with title to the State of Texas"
is found in Article 6674n, V.C.S., which applies only to
land needed for designated State highways. Under this
latter Artiole, the commissioners* court acts not for the
benefit of the county but as the authorieed agent of the
State and institutes the condemnation proceedings in the
name of the State. State v. McLendon, 111 S.W.2d 287
 (Tex. Civ. App. 1937, error dlsm.). Thomuson v. State,
165 S.W.28 131 (Tex. Civ. App. 194s);.T_raders'Comnress
Co..    State, 77 S.W.2d 245 (Tex. Civ. App. 1934); &
v. State, 77 S.W.2d 606 (Tex. Clv. App. 1934, error ref.);
Kgier v. Balser, 48 S.W.26 668 (Tex. Civ. Ap      1932, error
ref.); O%sefe v. Hudsueth County 25 S.W.2d tf  ' (Tex. civ.
                                               25
App. 1930). Title vests In the SCate and not in the coun-
     WllbarRer County v. Hall, 55 S.W.2d 797 (Tex. COmm.
A";;. 1932).
          The right of eminent domain Is inherent in a
State, but the Legislature may delegate this right to
various agencies. The Legislature has delegated the right
to counties by specifically conferring upon them the power
to condemn land for road purposes. It is elementary that
the statutes relating to eminent domain and prescribing
the procedure must be strictly followed.
          Although we have been unable to find any au-
thority directly on the subject, we are of the opinion       *
that the proper procedure in condemning land for a
farm-to-market road Is for the county to institute the
prooeedings in its name rather than In the name of the
 Hon. Carroll F. Sullivant, page 3 (V-1282)


 State. The Legislature has directed that the proceed-
 ings be instituted in the name of the county in all
 instances where the county ma$ exercise the right ex-
 cept as to land needed for a designated State Highway,"
 whiah term does not include farm-to-market roads. See
 Art. 7083a, Sec. 2, subdlv.(4b), V.C.S.
            If the condemnat$on proceeding Is instituted
" in the name of the county, the title Is taken in the name
  of the county. Regardless of this, it has been the unani-
  mous holding of the Texas courts that the rOadB belong to
  the State and not to the counties. The titles are merely
  held by the counties for the use and benefit of the State.
  These same authorities hold that the Legislature can take
  over tram the counties all hlghwags and place them under
  the exclusive control and jurisdiction of some other agency.
  This is not a taking@   the property of the county within
  the meaning of the Constitution. defferson County,v. Board
  of Count and District Road Indebtednez,143 Tex. 99, 1
  25~~.~d~~q~~~~)Robbins     v. Limestone County, 114 Texy*345,
       . .           .
           You are therefore advised that the proper proce-
 dure for acquiring land for a farm-to-market road is to
 institute condemnation proceedings in the name of the
 county. You are further advised that it Is not necessary
 for the county to deed the right-of-way to the State in
 order for the Highway Commission to designate it as a
 farm-to-market road and to authorize the expenditure of
 State funds on the road. The county does not own the land
 in e proprietary sense but only holds it as an agency of
 the State for the use and benefit of the State.
           We are not her*&holding that condemnation pro-
 ceedings for rights of way for farm-to-market roads which
 are brought by the commissioaers~ court In the name of
 the State are void. Since the county acquires title to
 the right of way as an agency of the State, it may be that
 the acquisition of title in the name of the State rather
 than in the name of the county Is not such a defect as
 would render the proceeding void. The question of the
 validity of such a prooeeding has not been presented for
 our opinion, and we therefore pretermit a discussion of
 the arguments in support of the view that this irregu-
 larity would not vitla'tethe proceeding.
  Hon. Carroll F. Sullivant, page 4 (V-1282)


                         SUMMRY
            A county should institute condemna-
       tion proceedings for land to be used as
       a farm-to-market road in the name of the
       county and not in the name of the State.
  APPROVED:                       Yours very truly,

  Ned &Daniel                       PRICE DANIEL
  State Affairs Dlvisldn          Attorney General

   Jesse P. Luton, Jr.
:. Reviewing Assistant
                                  By~%?f&it
  Everett Hutchinson               William S'.Lott    '
  Executive Assistant                    Assistant

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