Hon. Brady Gentry, Chairman   Opinion No. O-42%
State'Highway
        -   _ Commission      Re: Whether or not it Is manda-
Austin,,Texas                 tory for State Highway Commission
                              to accept funds tendered it under
                              the County and District Road Bond
Dear Sir:                     AssumptionLaw.
         We acknowledgereceipt.of _ your-request
                                          --     on the ques-
tion herein stated.. Your request is as follows:
         18Reference.ismade to paragraph 4 of Section
    6-A,.Actsof the,FirstCalled Session of the 47th
    Legislature,and;particularly>tothat part of
    paragraph 4 wblch.reads:
                              .
         t8C****and where such bonds or warrants were
    voted prior to January 2. 1939 and prior to the
    designation.ofthe road-as a-State Highwayand
    which have'not yetbeen issued or expended,the
    county or def&ned road district may issue such
    bonds or warrants or other legal evidence of in-
    debtednessand place the-proceedsZ.nescrow with
    the State Highway Commission for the construction
    of such road under.plans, contracts, specifica-
    tions and supervisionof the State Rlghway.Depart-
    me&, and when~so expended the bonds warrants or
    other evidences of Indebtedness shali be eligible
    to participateln,.the.Coirntyand Road District:
    Highway Fund the same as If the bonds,had been is-
    sued and.expended prior to January 2, 1939****'
          ,UFromthe above wordi&;it will be seen that
     under.certa5neondltlons:thereinoutlined, county
     funds may be .expended.by.theState Highway Depart-
     ment on designated State Highways after which  the
     county bonds, warrants and.other iegal -evidences
     of indebtednessbecome eligible for participation
     in the county and road dl.stri.ct
                                     Highway Fund. The
     references to .theHighway Commission and Highway
     Departmenthave raised in our minds the following
     questions,on which we would be pleased to have
     your opinion: First, does the act require the
     Highway Commission to accept all funds coming within
Hon. Brady Gentry, page 2


     the paragraph referred to which may be tendered
     to it by ~kounties,and expend such funds in the
     constructionof the destgnatedroads, or does
     the act confer upon the Highway Commission the
     discretion to determinewhich, if any, county
     funds will  be accepted and expended and which
     shall not be accepted and expended?"
          The answer to your request necessarily depends upon
whether or not the quoted portions of the County and District
Road Bond Assumption Law is an expressed grant to the counties
of'the power to determine when, where and how State Highways
shall be constructed. This is true because if it is mandatory
that the State Highway Commission accept all funds tendered it
by the various counties such would be the necessary result.
          The 38th Legislature of Texas authorizedthe State
Highway Commission to take over and maintain the various State
Highways. The effect of this Act was to vest in the State High-
way Commission all the power with reference to State Highways
that was formerly exercised by Commissioners'Courts. State
Highway Commission v. Humphreys, 58 S.W. (2d) 144. Therefore
the State Highway Commission has the sole power to determine
when and where highways will be located, (Mosheimv. Rollins,
79 S.W. (26) 672 AndyCity of Wichita Falls v. Real Estate
Trust, 135 S.W. f2d) 7361, and the individual counties of the
State have no right or power to construct and maintain State
IIighways. Iverson v. Dallas County, 110 S.W. (2d) 255.
          The counties were permitted to aid in the construc-
tion of State Hlghways by the Acts of 1925, Article 6674c, Re-
vised Civil Statutes but the 42nd Legislature, 3rd Called
Session, page 115, oh the Acts of 1932, repealed said Article
and thereafter the counties could do nothing in regard to
State Highway construction,except procure rights-of-wayunder
Article 6674n, Revised Civil Statutes.
          The p&?tifbn,ofthe enactmentunder considerationonly
authorizesthe aounties to issue.the..bopds,which were voted -.
prior to SBnuary 2, 1939, and prior to the designation of the
road as a State highway. It is a grant to the counties,whose
bonds will qualify, of the power to assist in highway construc-
tion subject to the plans, contracts, specificationsand super-
vision of the State Highway Department.
         From the time of the creation of the State Highway
Department it has always had complete and exclusive powers to
Hon. Brady!Gentry,page 3


determine all questions relating to State Highway construc-
tion and we do not regard the enactment here in questionas
being a mandatory order to the State Highway Commission to
accept the funds and build the highway authorizedby the
bond issue.
         You are, therefore, advised that the State Highway
Commission may determinewhich county funds it will accept
and expend for State Highway Construction.
          Trusting that the foregoing fully answers your in-
quire, we are
                              Yours very truly
                              ATTORNEY GENERAT,OF TFXAS
                              By /s/ Richard H. Cocke
                              Richard H. Cocke, Assistant
APPROVED DFC la, 1941
/s/ Grover Sellers
FIRST ASSISTANT ATTORNEY GERERAL
APPROVED: OPINION COMMITTEE
BY:       BWB,CHAIRMAN
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