               OFFICE   OF THE ATTORNEY          GENERAL    OF TEXAS
                                        AUSTIN



GFRILD
     c.MAraN
 A”- ...OYIL                                               Earoh 6, 1939




          Deer Sir:




                        Pour letter 0                    is hereby ao-
                                                     uest an opinion per-
                                                     . In pars-aphs nuw
                                                      k the following ques-




                 pleted and paid ior release the land owner
                 frozesay lisbilitp b,y virtue of 8uoh appli-
                 cation."
                    Also, by separate letter under date of February
          lOth, you desire this Department to subdt a contraot form
                                                            .




lion.    'L. J. GittInSer,LZorch6, 1939, Pace 2


.agplIcobleunder said act and particularlyas provided
 for In Seotion 5 thereof. Tho provi.sIonof Senate Bill
 Fo. 227, Chapter 214, Aots of 1935, 44th LeSlsleture,and
 seotlon 5 appllcablo,Is set forth In Vernon's,Annotated
 Texas Civil Statutes, 1925, under &tIole 165a-1, Sec-
 tion 5 and reads a8 follow:
              -'TheCommissioners'Courts of the,sever-
         al OOgIltd.08
                     may prOVidc for the construction
         of improvementson the lenas lyin:   Mithln
         their rzcpective counties‘,in the naturo of
         farm tI3rraCe8,'dikes,,ditches, soil and water
         reservoirs, and other soil and water conscrva-
         tion anZlerosion prevention services, assessing
         the landovmerwith an aseess:nent  not to exceed
         tileactual cost of'lobor, notarial, and fuel,
         and no charge shall be m&e for depreciation
         and/or other expenses.   The amount so assessed
         against the lonaov.ner,shall bc and remain a
         lien upon and against the lands upon which such
         money was used for any or all of the Improvq-
         monts mentioned in this section.
   _
               "The'CountyCommissioners'Courts shall
          oonoult and advise with the County Farm Domon-
          strators, an&/or employ other capable and ox-
          perlenaed aGent or agents, In the application
        ,.and operation of this Act.
              *The Commissioners'Court of the several
         counties cannot undertake the improvements
         hereon, unless the landovmer petitions said
         Sourt so to do. Said courts must enter into
         a written oontmot,v:iththe landoxner, for any
         and all,of the.improvementsherein specified,
         provided that.no oontract can.Grant the lsnd-
         owner a periociof moro than ten years from
         date of the contract Itsolf for payment.to             .
         the Commissioners'Courts of assessments
         agsinst said lanDo?;nerin makin% the said lm-
         provements, anti'providedfurther that Said as-
         sessments shall.,bearno interest until after
         ranturity,said contract form to be 6rm.n by
         the Attorney General's Department. Onlg.one
         contract oen be made with any individual land-
         ovmcr In any one calendar year, and not more
    Bon. L. J. GIttin3or,Xarch 6, 1939, i'ilS,e
                                             3


            than Threa mnarca    (c300.00) Dolln.rs'shall
.           bo s;;entper annum cn any one farm. Suoh
            contracts shall be filed and recorded In the
            office of tho County Clerk of the County In
            which the lanl is situated, and such filing
            shall serve to fix the lion on said land.
            Anyone receiving any benefits herounder mpct
    .       bo the owner of racer-:of such .lendon which
            any impr6vonent.s  hereunder are to be ma&e;
            provided further that nothing In this &t
            shall affect the existing statutes regard-
            Inp,InpounciInC; 2ater reservoirs."
                The &poso of this provision in the act a8
    ox$resscfiin tho onnctin~ oiause of the bill was to eon-
    fer on the Coxnissionors1 Court of the several oounties
    authority g nrovitiofor the construotlonof imgrove-
    ments on 1andS in thonnture of farm terraoes.Likea.
    ditches and other servioos expressed; providing for
    e:sossing   landowners for the aonstruotionan8 mainten-
    ence’oi   such Improvencntsan8 ievices, under rules and
    regulations to be prescribed by the said conservation
    board; providing for the contributionby the landoxners
    for such improvements,enterins into contraotsu:Iththe
    Commissioners'Court for same an& other purposes more
    or loss conneoted with the above.
             It appears, In the r.cadinf:
                                        of Section 5 of said _
   act, that the Commissioners1Court shall enter into a
  .writtencontract with the landowner for any and all of
   the Improvementsapeoified In said sot. The act requires
   tt,atsuch assessmentbe ma&e, that a contract be entered
   Into ana a lien retained, thereby securin.Sthe funds of
. .the oounty emen'$ed In suah causesand which are to be    -
   paid bsok by the Individual landowner.
                  The primary and cardinal purpose of this enaot-
        ment was to create a fund an& provi8e vrhrabythe oounty,
        throu,:hIts Coxmissionors'Court could, if it saw fit,
        exnanz a s'umof money or its equIv&eat In labor, material
        an; fuel to suoh a project, at the landownerPsroquest anG
        in suoh amount as not to exceed @JOO.OO -forthe designated
        improvementsin any one calendar year. Such sum available
        vrithoutInterest and payments deferred, would be an in-
        duoement to having the work done by any landovmer who deeirea
Hon. L. J. Gittinger,%!aroh6, 1939, 3360 4


to avail himself of the privilege.:The act Itself WI-
dently contemplatesthat t!scounty shall perioim the
Vsor!cand the latter part cf %wt10n 6 of the aot appears
to leava it within the illscretion of We Co:~mlsslonera*
Court to ;Icrr;lit
                 rosa machinery, Vhcn not necessarily,
in use on the. putlio roads, to be Us0a on private lands.
for purposes expressed. :;uchprovisions are as follows:~
            Yin order to jZOViiS a fl13aIn nitiof
     the oonstruotioni,nil  nsfntennnoe of the im-
    provencnts~unci    structuresname;2In ~cotion 5
    .of this bot, the Corn-lissioutirs~ Ccurt of aach
                   appropriate any amount up to twOnty-
     gpy2;;
                YP er cant of the net collections
    mede In each suoh county of the motor vehialo
     liccnne Pees not to exo~eclTwelve Thousand Xve
    ilunarca($12,300.00)Dcllnrs.....Xoneysmnp
    be wIth~raV~nfrom saia fund under the dircc-
     tion of the Cor!;ilIssioners' Courts, and used for
     the purpcoss of purchasing,maintaining and re-
    PaIrInS machinery anG equipment, ani:furnishing
     labor, an& any 8uCh mnchinery so purchased by
     the county, an& any rosa maohinery oVXnadby
     the oountg an& not noc~noarlly U8Od on the
    publia roa&s, may be used on private lands for
     the purpose of constructingand maintaining the
     Improvementsand structuresIn this Aot pro-
     vided.m
         -Theabovo provisions quotod, of tho Acts of the
44th Legislature,are to bo read with and considered in
the 1IGht of the authdrity .crantedand as expressed In
Artlole 23720, Bcviosd Civil Statutes, 1923, Aots Of 1931;
42na Legislature, Chapter 33, Sootion 4 of whiah cot
reads:
          "In the public service of conservI.nS the
     soil ferility of the lands Of the,County,the
     Commissioners'Courts shall havo the authority
     to co-operatewith the land o-+!ners and tax-
     peyors of th.0CorvltyIn all judiciousefforts
     for the preservation of the produotivenessof
     the 'soilfrom avoidable waste, anti1008 Of pro-
     ductiveness of the soil from avoidable ?.aste,
     ana loss of productivenessof agriculturalcrops
     neces8aTy to the publia welfare, thr0U!#l pC+I’dSS-
     Ion to use the machinery and equipment that may
Eon. 3,.J. GIttIn5;or,
                     Yorch 6, 1939, Pa5e 5

     be mado available by the County for such pur-
     poses under vrrittencontra&, and the County
     shall rcceIvo fro3 such landownersand tax-
     pnpl% COin?enSntlon,upon suoh uniform basis as
     IMY bo deencd cquilable,and proper, for the
     co-operationextended and nervices  rendered,
     all suoh compensationor funds to the county
     to be paid into th::Zoad an; Eridfe Fund of
     tl2eCounty; and the County Commissioners*     .'
     Court may provide for payments from lando:;ners ,
     and taxpayer5 of the County ot suoh stated
     IMervals,and In such amounts, as and when the
     County taxes are oolleoted, 3s gay be equitable,
    ,for the use of the equipment for the protec-
     tion OS lands a&aInst contInuIn5 Imrseasurcble
     Injury throus:hsoil erosion; provided that the
     Corz:issIoners'Court or representativethereof
     shll net Co upon the:lznZ oSany owner to ix-
     provlz?,
            terrace, proteot, or dltoh such lands
     until requested to do so In wrItIn by suoh
     mmer;  and provided further, that the Commission-
     ers' Court or repre5enontIvethereof shall not
     be rquired to dossuch Improving,terracIn5,
     protecting, and dItchin unless such Court shall
     determine that suoh work is of some publio
     benefit and said Court elects to do the work.D
The Act of the 44th Legislature bclnp,enaotcd after the   .
ona last referred to and on the same penoral subject, its
S>CCiKC $rovIsIonswill control and prevail over the
prior eat v:hcreIts provIsions are general - the two
acts not necossarIly.contlIctin~.Suoh fu$ds advanced
for labor, material and fuel fumnished under either
provisionsof our statutes must be done by written con-
traot and orders duly made ahd entered upon the minutes
of said oourt.
          In Volume 11, Tex. Sm.,  Pera. 95, p. 632, it
Is said the authority of the Commissioners'Court as the
'governingbGdy.oS the uo,untyto make oontreots in its
behalf Is str&ctly limited to that conferred either ex6rs6s-
ly or by fair or neoessary implicationby the Constitution
and laws of the State. ,AlsO:                                .
          *%I dealing with the county, it Is necess-
     ary to have an express contraot with the Corn-
     missioners* Court and that court can only speak
 EIon.L. J. CittInCsr,i.Virch
                            6, 1339, Pago'6


       by and through its minutes and records."
       FerrIer vs. FZGI (Civ. 2.g.) 33.SA'896,8.
            Xe arc unable to extend the F-,?ortOS,the plain
  and unambiguous lenqa::e used In these enactncntsto In-
  clude an arrenpemnt  cs expressed In your letter, portions
  of which aro 'aboveset forth. The act provides for:
            *AsscssInCthe landoT::ner
                                   with an access-
       ment.n
  And unless a lanco?:nerdesires to avail hI.mselSof this
  esecssrnsnt with payments deferred and withoutinterest, we
  can conceive of no sueh benefits added cr acoruin5 to his
  land by the use of county fund::or amount assosscd,when
  his own money which would sdoquatoly pay for and provide
  said Inprovcmonts,Is v:lthiclCin escrow.
            Ye find no Inhibition,of course, for the Com-
  misslocers'~^ourt to perforiasaid work after CeInC pctl-
  tioned, asseGsz=sntmade end a contract entered Into, from
  accepting cash In payzst of the assessmentprior to the
  m&in: of said lmprovc~ents.
             It is, therefore, the opinion of this Department
  that the Commissioners Court would not be authorizedto.
  construct or provide for tbo construction Gf inyovencnts    .
  as mentlonod In Article 165a-1, Devised Civil Statutes and
  ZectIon 5 thereof.byallowin cash as security &n lieu of
  n contmot retainin!:, a lien as provided therein and that
  it v:Guld be necessary that said lien, in all instances
. where paymentsazredeferred; be filed and recorded.
            In keeDing with this opinion end as per your re-
  quest;ve hGrelrrith.submlta form oontraot,bearIn the ap-
  proval of this Dcyertmcnt,for such improvementsas are
  desired to bo made under the prOviSiOnS cf Seid ATtiCk
 '165a-1,Devised Civil Statutes and as provided In Section
 .5 thereof.
                                     Very truly yours
