Honorable Aileen Mitchell ;
County Auditor, Fort Rend Cbunty
Richmond, Texas
                          '
                          -
Dear Madam:                    OpinLon Ro. O-6834
                                 Re:   Whether the Colmnissioners'Precinct or
                                       County.can issue emergency warrants to
                                       cover the cost of a right-of-way for
                                       building a farm-to-market road by the
                                       State and Federal Government; and
                                       whether this would be consldered a
                                       permanent improvement.
                          A-
              This in reply to your request dated September 18, lgbs, which
request reads as follows:-
               "The quest%on has arisen whether the Co%nnission&s~        .__
      Precinct can issue'emergency warrants to cover the cost of   '.
. . . the:kpunchaseof.~rS.ght.
                            of way for the building of farm&o
      market roads by the State .and Federal Government, and
      whether.thls would.be consaderedpermanent improvement,and. "
      also whether the aounty would have authority to issue these
      .warrants.+* *"
              In your request you ask ,threequestions and~we will answer
them in the order 1n;whlch they appear,tberein.

              1.     Can a.C6&ssioners1   precinct issue emergency
                   . warrants to.cover.the cost of the purchase of
                     rights-of-way for the building of farm-to-
                     market roads by the.State snd Federal Govern-
                    .ments?

              We have searched the .statutesand Constitution of this State
and have been unable to find anv authorization for a commissioners.'ure-
cinct tolssue any kind of warrants.

              2.    Whetheremergency warrants can be issued for
                    the purpose of purchasing rights-of-way and
                    be paid from the Permanent Improvement Fund.
              The nurpose of rights-of-way of publ:.cr&d s is i+p;rt :J?
the Z-036systen'and must be paid from the Count::'sRoed nnd RrSc:se1?und,::I"
cannot be paid.'outof tiie Permanent LlrproveaentPund. Carrnl Y';W!.lliams,
202 S.W. ~534.
. nonoraolc Hlleen ItiitchcJ.1,page 2            (Copy)           O-U&j4   .,


                       the purchase of rights-of-way for,the bililding_
                       of farm-to-market roads by the State and Federal
                       Qovernments.
                  The public policy relating to farm-to-market rends is Provided
     for in Articlee6673-c,j.Vernon'sAnnotated Civil Statutes, w;lichwe quote:
                    "Section 4. The State Highway Commission is aut-
           horized to designate any county road In the State as a~
           farm-to-market roajdfor purposes of construction, recon-
       : struction, and maakenance      drily, provided that the Corn--
           missioners Court&     the county in which any such County
           road is located shall pass and enter in itsminutes an
           order waiving any.rights such county may have for partici-
           pation by the state in any indebtedness incurred by the
          ,county in the construction of such county road; and pro-
           vided further that the State Highway Commission and the
           Commissioners Courtof.%he county in which any such raod
           is located may en%er Into ,a contract that shall set forth
           the duties of the state in the construction, reconstruc-
           tion, and mainterqanceof the county road in consideration
         T of the county ax-d/or road district relinquishing any and
           all claims for state participation in any county, road
           district, or defined road district bonds, warrants, or
           other evidences of indebtedness outstanding against.such
           road for the construction or improvement of the road be-
           fore being*$signated bgthe State Highway:Commiss~on.
              ,-          .‘..                                 *.       .
'i     -
                    "Sec. 2. It & hereby de&red       to.be the policy.of
           the state that.the assumption by the state of the obl&a-
           tion to construct:'andmalntaln such roads designated by the
           State HIghway Commission as farm-to-market roads under,the
           ,provisionsof this Act constitutes fulLand complete com-
           pansation for any and all funds that might have &en ex-
           pended by any county, qoad district, or defined road dis-
.~         trict in the construction and maintenanceof said road prioz
           to its designation by the'State Highway Commission..   as a farm-
           to-market road.      '*.* * *" .
                  Article 6674n,~Vernon's Annotated Civil Statuteq.is the
     s&utary   authority authorizing the county to purchase highway rlghts-
     of-way and we quote, in Part, from said article:
                  "Whenever, in the'judgment of the State Highway
         Commiss5on, the use or acquisition of any land for road,
         right.of way purpPses, timber, earth, stone, gravel or
         .othermaterial, nec.essaryor convenient to any road to
         be constructed, reconstructed, maintained, widened,
         straightened or lengthened, or ,landnot exceeding one
         hundred (103) feet in width for stream bed diversion in...*
         connectIon with.the locatling,relr\Cating    or cpnst~ctjon
         of a des%gneted      St&e Highway by the Sta~teHighWa:7Come
         mission, the same may be ac'quiredby purchase or condem-
         nationby the County CommLssioners-Court. Provided .that
         the County ir,which the State .Higimay is located mar P3Y
         for .same out of the County Rozd and Br'l.dse  filno;'oran:?
         a,r:*ilahle tiountyv  fundz.
Honorable Aileen Ivlitchell,Page 3                             o-6834


              "Any Commissioners Court is hereby authorized to
      secure:by purchase or by condemnation on behalf of the
      State of Texas, any new or wider right of way or land not
      exceeding one hundred (100) feet in width for stream bed
      diversion in connection with the locating, reldcating or
      construction of a.designated State Highway, or iiand or
      lands for material or borrow pits, to be used ) the con-
      struction, reconstruction or maintenance of Sts&e High-
      ways and to pay for the same out of the County Road and
      Bridge Fund, or out of fny special roa~dfunds or any
      available county funds.
             Since the Commissioners' Court has the statutory 'authority to
purchase rights-of-way, the Commissioners' Court has the implied authority
to issue interest bearing warrants for the purpose of purchasing rights-
of-way. Lassiter v. Lopez, 217 S.W. 373. The manner of issuing said
warrants is controlled by the provisions ~ofArticles2368a.
             In your request for an opinion you do not state any facts
from which this department can determine whether the county would be
authorized to issue emergency warrants: Tne secondiparagraph of Section
5 of Article 2368a, provides as follows:
              "Provided, that in case of public calamity caused
      by fire,.flood, storm, or to protect the public health,
      or in case of unforeseen damage to public property,
      machinery or equipment, the Commissioners' Court of the
  '   Boverning bodymay issue such time warrants as are neces-
      sary to provide for the immediate repair, preservation
      or .protection of public property and the lives and ,health
      of the citizens of such county or city, irrespective of
      the limitations contained in this Section and the restric-
      tions imposed by Sections 2,,3 and 4 hereof."
             If the purpose for wh~ichyou desire to issue emergency war-
rants comes within the above quoted statute, then the county would be
authorized to issuesaid warrants.                       .,.
                                   Yours very truly,
                                   ATTORNEY GENERAL OF TEXAS
                                   By s/ R.J. Long
                                         R.J. Long
                                         Assista.nt

RJL:EP:wc
APPROVED OCT 18, 1945
s/ Ca~rlosC. Ashley
FIRST ASSISTANT
AlTORNEY GENERAL
