      THEAYTORNEY               GENERAL
                   OFTEXAS




                    August 16, 1947

Hon. V. H. Sagebiel    Opinion No. V-347
County Attorney
Gillespie County       Re: Where a county pro;
Fredericksburg,Texas       cures a right-of-way
                           for a farm-to-market
                           road wholly within
                           two precincts, is it
                           a county-wideproject
                           to begpaid from funds
                           of the entire county,          i
Dear Sir:
                                              .
          Your statement and request for an opinion ere
in part as follows:
         "The population of Gillespie County,
    according to the last Federal Census is
    10,670, and the.assessedvaluation is ap-
    proximately$8,000,~00.00.
         "The Conmissioners,who are also ex
    officio Road Commissioners,operate, build
    and maintain county roads individually~in
    their several precincts, each.out.ofroad
    building funds apportionedtheir precincts
    pro rata according to assessed valuations
    in their individualprecincts. For in?
    stance, Precinat Number One, which includes
    the valuations of the city of Fredericks-
    burg, receives 37/100 of the total county
    road funds and spends about l/5 thereof in
    building and maintaining streets in the
    city of Fredericksburg. The other three
    precincts are apportioned 23/100, 22/100
    and 18/lOO, respectively.
         *A Federal farm-to-marketroad is be-
    ing surveyed under the supervisionof the
    State Highway Department and the right-of-
    way must be procured. This highway is be-
    ing built in a section of the county.affect-
    ing only two of the Commissioners'Pre-
    cincts and is not in any way beneficial to
    the residents of the other'two precincts.
     Hon. V. H. Sagebiel - Page 2   (V-347)


               "Under these facts is the procuring
          of the right-of-waya matter to be paid
          for out of the funds of the precincts in
          which the farm-to-marketroad is being
          constructed,or is it a county-widepro-
          ject for which all the Commissionerspre-
          cincts must provide funds?"
               The question imaediatelyarises as'to what
     'interpretationand effectshall be given Article 6740,
     V.C,S., which reads in part as follows:
               "The commissionerscourt shall see
          that the road and bridge fund of their
          county is judiciouslyand equitably ex-
          pended on the roadsand bridges of their
          county, and, as nearly as the condition
          and necessity of the roads will permit,
          it shall be expended in each county com-
          missioners precinct in proportion to the
          amount colleoted in such'precinct,"
               In regard to similar situations involving
     State highways, it is well settled that the Comtnission-
     ers' Court may look to the entire county for funds to
     procure a right-of-waythat affects only one precinct.
     Shivers v. Stovall, 75 S.W. (2d) 276, affirmed 103 8.W.
     @;~i5;~~)Garland v: Sanders, 114 S.W.  (2d) 302 (writ
                  The principles and theories in relation to
     a nfarm-to&rketW road are just the same. It is stated
     in the Shivers case that:
               "These provisions of the law, as well
          as others which might be mentioned, clearly
          contemplatethat the aommissionerscourt of
          each county shall regard.the roads and hiph-
          ways of the county PS a system, to be laid
          out, changed, repaired, improved, and main-
          tained, as far as practical,as~a whole to
          the best interests and welfare of all the
          p pie of the county_ It is olearly con-
          tE:plated that all riads and bridges.ofthe
          county shall be maintained, repaired, and
          imorovedwhen necessarv'" as the conditions
          may require, regardless*ofthe 3recinct in
          which same may be located,so far as the
          funds will equitably justify.




-.
Hon. V. H. Sagebiel - Page 3   ‘(V-347)




    bridge fund acoording to any fixed mathe-
    matical formula, ana apportion same in aa-
    Vance for the purpose of being expended in




          From the above cited case, it is apparent that
the court makes no distinction as to the type or classi-
fication of roads in regard)to its constructionout of
the county road fund, Nor do the later statutes, Article
6674-20, V.C.S., and H, Bc No. 21 of the 50th Legislature,
which deal specificallywith nfarm-to-narketll roads, in
any way change the above holding.
          On the other hand, ‘it is elementary that the
Commissioners*Court is the agency of the whole county
with ,eachcommissionerresponsibleto more than his owns
precinct, Iiisduties are county-wide;he must safe-
guard the welfare of all the county, and in carrying out
his powers of establishing and maintaining a county road
system, the ‘aountyroad fund may,be used in one or all
precincts d.ependingupon the needs of the county. This
should not .betaken to mean, however, that it is manda-
tory that the Commission&s* .Courtshould look to the
whole oounty to procure the funds for a right-of-way.
Article 6740, supra, clearly points out that, as nearly
as .conditionswill allow and as nearly as necessity will
permit, the said funds shall be expended in specific pre-
cincts in proportion to the amount collected therein. In
this regard, also, the Shivers case, supra, explains:
          n      the commissionerscourt must
     give eif&i to said article 6740 except when
     the necessities of the roads and bridges re-
     quire a departure from it. That article re-
     quires that the road and bridge funds of all
     counties shall be judiciouslyand equitably
     expended. It further requires that such
     funds shall, as nearly as the condition and
     necessity of the roads will permit, be ex-
     pended in each commissionersprecinct in pro-
Hon. V, H, Sagebiel - Page 4   (V-347)


    portion to the amount collected in such pre-
    cinct, The dominant purpose of this statute
    seems to be to require that the road and
    bridge fund shall be expended in each commis-
    sioners precinct in porportion to the amount




    avoided except In oases or oonditionsof
    neosssitg, Of oourse, the commissioners
    court has the right to exercise its sound
    judgment in determining the necessity, but
    it cannot act arbitrarily in regard to such
    matter-* (Bnphasis supplied)
          In view of the foregoing, it is our opinion
that “each precinct shall prima facie be entitled to its
own funds;” however, in “cases or conditionsof neces-
sity* the Commissioners’Court in “its sound judgmentW
may expend funds allocated to one precinct in another
precinct. In other words, this matter must be decided
by the Comuissioners’Court, and so long as said Court
exercises its best judgment and does not act arbitrar-
ily in regard thereto, its findingswill not be dis-
turbed.
          Under the facts submitted, the cost of procur-
ing the right-of-wayfor the farm-to-marketroads should
be paid for out of the funds allocated to the two pre-
cincts in which the roads are to be located, unless the
Commissioners1Court in its sound judgment finds, by
proper court order, that this is such a case, or condi-
tions are such, that the funds allocated to one precinct
or precincts should be expended in another precinct or
precincts,
                          SuA5!44RY
          The cost of procuring a right-of-way
     for a farm-to-marketroad should be paid
     for out of funds allocated to the precincts
     in which’the road is to be located,‘unless
Ron, V,.   II,Sagebiel - Page   5   (V-347)



         the Oommissioners~Court in its sound udg-
         mant finds; by proper court ora&,, thai
         conditionsare such that~the fur&asall?-
         cated.to one:precinct or precincts should
         be expended in another .precinotor pre-
         cAgtsM~ (Shiv(rrs vI &tovall, 103 WVR (2d)

                ,.
                                    Very truly y.ours




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