             Tart    .L%TTORNEY          GENERAL
                           OF%-EXAS
                      AUSTIN.   TEXAS   78711

                       December 10, 1968


Hon. J. C. Dingwall                     Opinion No. M-312
State Highway Engineer
Texas Highway Department
Hain ,office Building
11th and Brazoa
Austin, Texas 78701                      R8:    Whether the Texas Highway
                                                Department can legally
                                                cofitractwith an adjoin-
                                                ing State for participation
                                                in the cost of a joint con-
                                                struction projection aa
                                                reimburse the adjoining
                                                State for services per-
                                                formed on that portion of
                                                the project located in
                                                Texas.

Dear Mr. Dingwall:
          You have requested an opinion on the above-referenced
matter and have outlined the following pertinent facts relative
thereto:
               (a) The section of U. S. Highway 59 and 71
          involved is situated half in Texas and half in
          Arkansas.
               (b) It is in the public interest for the
          State Highway Department of Texas and Arkansas
          to cooperate in the planning and contracting of
          construction for the widening and improving of
          this highway, provided that each State Highway
          Department is responsible only for that portion
          of the work in its respective State.
               (c) You desire to enter into an agreemeat
          under which the personnel of the Arkansas State
          Highway Department will be used for the prelimi-
          nary engineering of the project and for construction

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Hon. J. C. Dingwall, Page 2    (M-312)



          engineering and with a provision for reimbursement
          to the State of Arkansas from the Texas Highway
          Department Fund for that portion of the cost of
          the above engineering work performed on the part
          of the project in Texas.
               (a) Each State under the proposed agree-
          ment is to separately approve the contract bias
          received and separately approve the award of a
          contract.
          Your request calls for an opinion concerning three
separate questions which are stated, followed by our answers.
                       Question No. 1
               Es__th.~-.-~exas_Highway.~~.Department~.unpowered.
          &?-co.nsractwith..theB-kansas..StateHighway
          pepz+mec$?
          We observe at the outset there is no specific statu-
tory authority confirming such a right on the Highway Department.
Although we answer this question in the negative, the Texas~.High-
way Department does have the authority to negotiate-an agreement
which may become a binding contract~upon approval by the Governor
of Texas. Article IV, Section 10, of the Constitution of Texas
provides:
               Yie,..[the Governor] shall cause the
          laws to  b&~
          c;o.auct.;
                   ,...fag$hf$ly
                        person ;. executed and shall
                    i5.,.,
                                 or iti.
                                       such mannerlyas
          shhll~be'prescr,ibed
          ._.~~_.--_..-.
                   ,~.                   'dL1~
                                -by_,law;-   inter-
          course ana.business of the S~tatewith....
          o$her iState~,and~,.with~_thel,~,gnMed,
                                               States."
          The "Interpretive Commentary" under this Article in
Vernon's Texas Constitution reads, in part, at page 795, as
follows:
               "As the chief executive officer of
          the state, Section 10 also makes the
          governor the channel of intercourse and
          business between the State and other
          States, and the United States. . . .*

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Hon. J. C. Dingwall, Page 3    (~-312)


           This article directs that the Governor, either in per-
 son, or in some manner prescribed by the Legislature, is vested
with power to contract in the name of the State of Texas where
 the subject matter involves "~~,,fercourse-aniLbusiness
                                                      af,.Ahe
 State_w~~~,.,~~~h.er~...States...and...with.-the_United
                                             Sta$$~s,l-_.'Ehe
                                                           "in
-&&son" part of the quoted section is self%Z@l.anatory.
          It has been held that, “in.such.manner asshall~be   pre-
scribed,by,,law"is a phrase which:




Highway Commission of Texas v. Vaughn, 288 S.W. 875 at 879 (Tex.
Civ.App. 1926, error refused).
          In Highway Commission of Texas v. Vaughn, supra, it
was held that Article IV, Section 10, of the Constitution of
Texas, was not violated by a Legislative enactment which failed
to mention the Governor, but authorized Wichita County and the
Texas Highway Conunissionto work out an agreement with Oklahcana
and the Federal Government concerning construction of a bridge
across the Red River. The Court observed, 288 S.W. at 879:
               "Why should the Legislature direct
          the Governor to perform an act which the
          Constitution has made his mandatory duty
          to perform? The Governor is charged with
          the duty of executing all laws enacted by
          the Legislature in the manner required by
          the Constitution and laws of this State,
          and the failure of the Legislature to
          specifically direct that officer to exe-
          cute a law does not vitiate the law."
          In our opinion, Highway Commission of Texas v. Vaughn,
supra, states the law in relation to the first question presented.

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Hon. J. C. Dingwall, Page 4    (M-312)


It also provides a guide concerning the type endorsement desira-
ble to make the agreement reached by the Texas Highway Commission
a binding contract. The contract in Vaughn was approved by the
following endorsement:
                                "April 9, 1926
               *Examined, ratified and confirmed
          in all things as my act and deed as
          Governor of the State of Texas insofar
          as I am required and authorized by law
          to make said contract.
                                "Mirian A. Ferguson
                                "Governor of Texas'
          In Attorney General Opinion No. C-284 (19641, it was
held that the Highway Department was authorized to use its funds
to pay an agency of the united States for obtaining research data
to design highway drainage structures. It appears that the only
question therein presented and considered was whether the appro-
priations bill authorized the expenditure of funds and the statu-
tory authority to support the same. The constitutional question
of the requirement for the approval by the Governor of the con-
tract was not passed upon by this office.
                        Question No. 2
               May personnel of the Arkansas Highway
          Department, under the facts stated, plan
          and supervise construction of that part of
          the highway located in Texas?
          Our answer to this question must be in the affirmative,
provided, however, that the Texas Highway Department maintains
final authority over that part of the highway work being done
in Texas.
          The State Constitution provides (Article 16, Section
24) that the, "Legislature shall make provision for laying out
and working public roads. . . ." The Legislature may delegate
this power as it sees fit. Texaa Highway Commission v. El Paso
Bldg. L Con&. Trades Council, 149 Tex. 547, 234 s.W.Zd 857 (1951).

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    Hon. J. C. Dingwall, Page 5    (M-312)


    The provisions of the highway statutes of Texas create in the
    Texas Highway Commission, .. . , an agency in which are vested
    powers to formulate and execute plans and policies for the loca-
    tion, construction and maintenance of a comprehensive system of
    state highways and public roads.* Robbins v. Limestone County,
    114 Tex. 345, 268 S.W. 915 (1925).
              The department of government headed by the Texas High-
    way Commission is sp$cifically charged by Article 6667, Vernon's
    Civil Statutes, to, . . . investigate and determine the methods
    of road construction best adopted to the different sections of
    the State. . . .*
              Article 6674q-4, Vernon's Civil Statutes, provides:
                   *All further improvement of said
              State Highway System shall be made under
              the exclusive and direct control of the
              State Highway Department and with appro-
              priations made by the Legislature out
              of the State Highway Fund. . . . In the
              development of the System of State High-
              ways aa the maintenance thereof, the
              State Highway Connuissionshall from
              funds available to the State Highway
              Department, provide:
                   "(a) For the efficient mainte-
                   nance of all highways comprising
                   the State System.'
              The term "improvement" as used in Article 66746-4 and
    defined in Article 6674a, Vernon's Civil Statutes, is, we believe,
    inclusive of the work described in your request for this opinion.
              Article III, Section 56 of the Constitution of Texas,
    prohibits, with certain exception, enactment of special laws aa
    contains this mandate: "And in all other cases where a general
    law can be made applicable, no local or special law shall be
    enacted."
              The Legislature has delegated exclusive and immediate
    control of the improvement of the State Highway System to the

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Hon. J. C. Dingwall, Page 6     (~-312)




Texas Highway Department, with the direction that there be
efficient maintenance of the State System, Article 6674q-4.
          It is our opinion that the scope of authority dele-
gated to the Texas Highway Department is broad enough to allow
the procedure outlined above for cooperation with the State of
Arkansas: provided it is in the public interest, as you have
determined that fact to be; provided it is in furtherance of
efficient maintenance; and provided the Texas Highway Depart-
ment retains final authority wer that portion of the work done
in Texas.
          We do not believe the Texas Highway Department is
authorized to negotiate an agreement whereby final determina-
tion of the construction requirements and specifications, right-
of-way requirements, etc., of the entire project, are vested in
any authority other than the Texas Highway Department, because
such an agreement would be a relinquishment of the exclusive
and direct control delegated specifically to the Texas Highway
Department by Article 6674q-4.
                       Question No. 3
               May money from the Texas Highway Fund be
          used under the facts stated to reimburse the
          State of Arkansas for the portion of the work
          done in Texas7
          We answer this question in the affirmative. The provi-
sions of law cited above which authorize the Highway Department to
use the procedure outlined impliedly authorize payment therefor.
Article 6674q-4 specifically authorizes use of such moneys for the
efficient maintenance of the Highway System.
                        SUMMARY
          A contractural agreement with the State of Arkansas may
be negotiated by the Texas Highway Department for the approval
of the Governor of Texas. Upon approval by the Governor, the
agreement can become a binding contractural obligation of the
State of Texas.


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        Hon. J. C. Dingwall, Page 7        (~-312)


                  The Texas Highway Department may, in order to promote
        more efficient construction practices, further the public interest,
        and prevent waste of manpower, allow personnel of the Arkansas
        Highway Department to do preliminary engineering and construction
        engineering work on that portion of the road in Texas, provided
        final control and authority over that portion of the road in Texas
        rests in the Texas Highway Department.
                  Texas Highway Department funds may be used to reimburse
        Arkansas for that portion of the cost of such work applicable to
        the part of the road in Texas.




        Prepared by SAMUEL D. MCDANIEL
        Assistant Attorney General
        APPROVED:
        OPINION COMMITTEE
        Kerns Taylor, Chairman
        Thomas Mack
        Larry Craddock
        Louis Neumann
        Jack Sparks
        A. J. Carubbi, Jr.
        Executive Assistant




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