                                                               459



            OFFICE   OF THE   ATTORNEY    GENERAL   OF TEXAS

                                 AUSTIN




Ronornble ?red Hrlaman
Criminal Diatrlot Attorney
Longrlelr, %x*8
Gear Sir:




           “The con0truct10n 0r the highvay as nov
     denQpated,   vi11 pam through property ovned
     b7 a duly elected and qualified   County Coarpia-
     sloner,  vi11 destroy tvo ponda and necemitate
     the removal of Earm, houtoa and other improve-
     ments, aa vell an occasion oonsiderable   damage
     to graving crop8 on the drrlted right   o? vay.
                                                                               460

Eonarable Fred Srtsman, Page 2


            “The County Commlorloner is ready, anxloua
      and vllllng  to assist in the oonstruotlon   of
      the~hlghvay an4 to loaept a reasonable amount
      of damages to be lssesoed,   either by dislnterest-
      ed partfor or by a Board of Condamnat:‘on.

            “It 1s the oplnlon of our oiiioe   that be-
      caum   of the provlslons   of Artlole 373 of the
      Pmrl Code of the State of Texas, that thls Coun-
      ty Commlssfoner cannot execute right of vay deeds
      for  this property,   or enter fnto any oontract,
      vhareby he vould receive money from Oregg County,
      for the damages occraimed     by tho oomtructlon  ot
      the road.
             “Ue have discussed  the probability    of re-
      looat-     the proposed hlghvay vith engineera of
      thQ State Blghvay Department an4 are advised that
      this IQ the most desirable    location,    and any
      other looation   would not be satisfactory     to the
      Federal Bureau of Roads or economloal       In oon-
      atruotlon.
             “WI11 you plerree advl.mQ me vhsther or not
      the provisions   of Artiole   373 of the Penal Code,
      prohibitr   this County Commlssloner from selling
      the derircd land to the County for this prpose;
      aedond, vhether or not a condemnation pK@QQdlIig
      lnstltutsd   by the County vould be authorl%ed to
      condemn thr desired land, an4 if the payment of
      the condemnation avard out of the Comty road
      funds to the County Commlraloner by a vote of
      the County Conmisrloners~ Court, vould be R
      violation   of ArtlclQ 373’)

            “It is the opinlm   of this office that such
      property cannot be,acquirsd   by the County from
      ths County Commissioner, Qlthsr by direct con-
      tract or by condewatiof,    because of the pro-
      vl$lona  of Article  373.
             Article   373,   Vermn’s   Annotated   Pcrzd   Coda, reads   as
follcvs:
             'Ii any officer  of any oounty, or of any
       city or town shall beoome In any manner pecunlartly
       Interested  In any contrncts  made by such county,
                                                                             461


Honorable Fred Brloman,       Page 3



     city or tom, through its lgont8, or other-
     V~BQ, for the oonatruotion    or repair of any
     bridge,  road, strQet, alley or house, or
     any other vork undertakrn by such county,
     city or tom, or shall becoae interested
     in any bid or proposal for suah vork or in
     the purchase or male oi anything made for
     or on account 0r nuch county, city or tom,
     or vho shall aontract for or receive any
     money or property,   or t-hs representctive    of
     either,  or ag emolument or advantage vhat-
     soever ln oonrideratlon    of such bid, pro-
     possl,  contract,  purchase or sale, he shall
     be fined not less than fifty     nor more than
     five hundred dollars.’
              Article   6674n, V~rnon~s Annotated Civil   Statutes,   pro-
rideal
            tienever,     In the judgment of the State
     Hi&way Commission, the use or aoqulaltion
     of nny land for road,       right o? vay ~UP~OSQS,
     timber,    earth, stone, gravel or other material,
     necessary or aonvenlent to any road to be
     COnQtNOtQd,      reconstructed,    maintained, vidaned,
     StraaighteAQd or lengthened,       or land not QXCQQd-
     ing onQ hundred (100) feet in vidth for stream
     bed diversion     In connection Vith    the locating,
     relooatlng     or oonstruction    of a deslgnstbd
     3tate Blghvay by the Stats Righvay Commission,
     the same may be aoqulred by purahase or cm-
     dematlon     by the County ComalssIonera Court.
     Provided that the County In vhich the State
     Elghvay la located may pay for same out of
     the County Road and Bri&gQ Fund, or any Waila-
     blQ oounty ?Unds.
               “hy Coxmlssloners Court La hereby author-
         ized to secure by purchase or b7 oondemation
         on behalf of the StatQ of Texas, any nev or vider
         right of vay or land not exceeding one huadred
         (100) feet in width for stream bed diversion
         In connection vifh the loeating.    relocating or
         conotruotion  of a designated  State Xilghny, or
         land or lands for material or borrov pits, to
         be used In the conatmction,    ~OOMtNOtiO~,
Honorable   Fred   l5rlsmm,   ?a*   I



     or maintenance of State Highvsys and to pay
     for the same out of the County Road and Bridgs
     ?und, or out of any spsclal road funds or any
     arsllable    count7 funds.     Ths State Xighva~
     Comrmisslon shall be charged vlth the duty
     of furnlshlng     to the County Commlssloners
     Cotit ths plats or field notes of such
     right of ray or land and the desailptlon
     of suah materials as mar be rsqulrsd,           after
     vhich the Comlsrloner8       Court ray, end la
     hereby aathorlred      to purchare or aonilepm
     ths same, vlth title      to the 8kte      of Texas,
     In aaoordanae    vlth suah field notes.         ?ro-
     vlded that ln the event of condemnation
     bT the County the procedure rhall be the
     ssm a8 that 8et out in title          53, Artioles
     3264 to 32'71, lnclusioe,      Revised Cl111 Stat-
     uter of Tex88, of 1925.        Provided that if the
     county Conml88loners court of any County in
     vhich 8UCh right Of Var 18, in the jUd@88nt
     Of the state    m&Nay     CO~m.i88iOn, nsce88ary
     for the con8trUotion      of a part Of 4 d@8f@ated
     Atate tilghva~ rhall fall or refure         to abcure
     by purEhare or by condexmatlon for or on
     behalf of the State of Texa8, 8uah right of
     vay or part thereof,      immediately    and as
     speedily a1 o88lb1e        under 8*id tit10      52,
     ArtlCh8    32 4 to 3271, lnclu8lre,        Revised
     Civil Statute8 of Taxa8, of 1925, rfter
     being raved vlth a copy of an order of the
     State Klghva~ Comi88lon        ldentlfylng    by fLeld
     notes, the part of the Highvay neoemaq               for the
     construction    of 8Uoh designated State HighVq
     and rsqueatlng      such Count7 comfsisrioner8 Court
     to 8ecun     888~ then and In such event and
     vlthin ten (1Oj day8 after the servicre of 8uoh
     notice,   raid State Hi@Wa~ COlQai88iOn 8ba11
     direct the Attorney Oeneral of texar, to
     institute    oondeamatlon prooeedlngr       In the
     name of the Stats of Texa8, for the purpose
     of securing such right of vay.          The right of
     erlnent domain to condemn any part of a
     rlght of war for a State dallgnated          highway,
     under the oondltlonr      herein art out 1s hereby
     conferred    on the Stats Bighvay Conal88lm and
     the juri8diatian      for the eX6rGL8e Of 8UCh
.

                                                                                   4633

    +Honoksble Fred Erlsman,     ?ago   5



          right  i8 herwbr aonferrod on the County Court
          of   Trerl8 County.   bush oondemnation proceed-
          1438 8hall be lnrtltuted    by the Attorney 5en-
          oral by filing   a statement for oondomnatlon
          vith the County Judge of Travis CouutT, Texas,
          and the venue of such proceeding rhall be in
          TravLs County, Texas, and jurlsdlotion       and
          authority   to appoint three (3) diSint6re8t6d
          Sreeholder8 of Travlr County, Texas, a8 Com-
          missloners 18 hereby conferred upon the Coun-
          ty Judge of Travi8 County, T4xa8, and othor-
          vi88 ruch oondemnation rhall be aooordlng to
          the provirlon   or lald Title 52, Artialrr
          3264 to 3271, inclusirek    Revised Civil Stat-
          Ut48 Of Texa8, Of 1925.
                Fzelnent domain 18 the right or pover of a 8or4mlgn
    Stat4 to appropriate        private property    for the promotioa     of the
    general welfare.         (Byrd Irr. Co. v. Smythe, 146 S. Y. 10&l
    Cravford Y. Prfo County, 153 9. V. 390t Tex. Jur., Yol. 16, p.
    560.)    The Legislature      has made revsral prorlslons       for the
    exorcise   of the paver of eminent domain by the State dlreatly'.
    Thus it 1s provided generally that 'vhen any land rhall be
    required bg the State for any character of public u8e" and
    the Uovernor ha8 failed         to agree vlth the ovner on the amount
    of compsnsatlon therefor,         he may eaure the Attorney Oenenl
    to institute     pPOCeeding8 for It8 oondemnatlon in the name of
    the State.      (Article    5240, Vernon’8 Annotated Civil Statut.8).
    Other 8tatut48 authorize the State to condemn any land “for
    road, right of var purp0~48, timber, earth, rtone, gravel oc
    other material,      necesrary or convenlentn for the oonrtmctlon,
    reconstruction,      maintenanoe, vldening,       stralghtenlng    or exton-
    slon of an State HighvaJ.            (Hall v. Yllbargsr     County, 37 8.
    Y. (2d) 10t 1; Watt v. State, 33 8. V. (26) 744; Article              667@n{
    Tex. Jur.,   Vol.    16,   p.  584).   The prooedure to be folloved       in
    condemnatl.ons of thi8 charaater 18 that ret forth in the gen-
    eral condemnation rtatutel.
                Article 6674n, suprsr authorlaes   the commi8sloners~
     ccurt to condemn land for right of Van purposes or for the
     sxtraction  of road bulldIng mterlals   and the establi8bmwt
     of borrov pltr in oonneatlan vlth the conrtructlon,     recon-
     struction,  or maintenance of Stkte Hlghvays.    this 8t8tute pm-
     rides that the prooedure to be folloved    shall be that retlbrth
     in the general condemnation rtatute8.    the venue of such pro-
     ceedings 18 fixed ln th4 county vherein the land 8OUght to be
     condemned lies.
                                                                              4614
 .

Bonorable   lr4d   Eri8mM,    Page 6



          The ease of O~Keere V. Xudspeth County, 25 9. W.
(26) 625, among other thlng8, holdo that vhen a county 8eeks
to oondoam land Under thlr rtatute (Artlole    667n, Vernon'8
Annotated Civil Ptatutsr),   the commls8laners~ court doe8 not
8Ct in behalf   of the county but in behalf of the State Xlgh-
voy Comolsslon.
            In vlev   of the foregoing
                                     authorities,  TOU are re-
rpectfully   Cdrlaed that It 18 the oplnlon of thlr department
that Article   373 of Vernon*@ Annotated Penal Oode prohibits
the count   oosmlsrloner   from relllng   the de8crlbed land to the
county.   Hovever, VI) believe  that A oondemnatlon pmceed
could be legally   and pmporly   lnrtltuted   Under Article  667
                                                              9 n,
~upra, and that the oondeuutlon       lvapd oould be legally  paid
out of the county road fund8 to the oounty ootirrfoner        ovn-
ing the land vhlch Ls condamned. Ye do not think Artlale         373,
Vernon’s  Annotated Penal Code, prohibits     the above mentioned
condemnation pmoedure or the paying of the oondsnutlon         avard
out of the County Road Fundr.
          Trusting     that   the foregoing   fully   ansvers   your in-
Wry,   ve are

                                                 Yours very truly




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