                         September 25, 1989



Honorable John T. Montford    Opinion No. JR-1101
Chairman
State Affairs Committee       Re: Whether a farm-to-market
Texas State Senate            road is a "state highway" for
P. 0. Box 12068               purposes of right-of-way acgui-
Austin, Texas   78711         sition under section 4.301(c)
                              of article 6702-1, V.T.C.S.
                              (RQ-1708)
Dear Senator Montford:
     you ask whether farm-to-market roads are "state high-
ways" within section 4.301(c) of article 6702-1, V.T.C.S.,
which provides that the state shall pay 90 percent of the
cost of acquiring right-of-way for state highways.       The
State Department of Highways and Public Transportation has
not viewed farm-to-market roads as state highways within
that provision, and the counties have traditionally paid the
full cost of right-of-way acquisition.
     The provision you inquire about is part of the County
Road and Bridge Act. V.T.C.S. art. 6782-1, 5 1.001. Section
4.301(a) of this act authorizes the commissioners court to
condemn land which the State Highway and Public Transporta-
tion Commission determines is needed for a state highway.
Section 4.301(c) makes the following provision for payment
for right-of-way secured for certain highways:
           In the acquisition of all rights-of-way
        authorized and requested by the State Depart-
        ment of Highways and Public Transportation
        in cooperation with local officials for all
        hiahwavs desianated bv the State Hiahwav and
        7   ‘C                             as U 't
        States or state hiahwavs, the State Depart-
        ment of Highways and Public Transportation
        is authorized and directed to pay to the
        counties and cities not less than 90 percent
        of the value . . . of the requested right-of-
        way . . . . (Emphasis added.)




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Honorable John T. Montford - Page 2 (JM-1101)




     The question before us is whether farm-to-market roads
are designated as state highways within section 4.301(c) of
article 6702-1, V.T.C.S. Some consideration of the role of
farm-to-market roads in the network of Texas highways and
roads will help us to answer this question.
     Farm-to-market roads are generally rural roads that may
be jointly constructed and maintained by the state and
counties. 36 D. Brooks, County and Special District Law
5 40.23 (Texas Practice 1989). They carry local traffic and
serve as feeder roads between the major highway system and
local county roads. Texas Legislative Council, T&w~s Roads
and Hia-     37, 46, 136'(0ct. 1952) (Staff Research Report
52-3). The state began a program of building farm-to-market
roads in response to public demand that it take some action
to insure all-weather surfaces on the more important local
roads. Texas Research League, A Program for Texas Highways:
A Digest of a Report to the Texas State Highway Commission
(1957). A 1943 enactment authorizes the highway commission
to designate "any county road in the state as a farm-to-
market road for purposes of construction, reconstruction,
and maintenance . . . .'I Acts 1943, 48th Leg., ch. 244, at
365 (codified as V.T.C.S. art. 6673c).l Counties may levy
an ad valorem tax to fund the construction of farm-to-market
roads and may use the tax revenues in cooperation with the
highway department to acquire rights-of-way for and to build
and maintain such roads.    Tex. Const. a*.    VIII, 0 l-a:
V.T.C.S. art. 6702-1, 8 4.103 (implementing legislation);
Attorney General Opinion V-1169 (1951).
     A farm-to-market road fund is established by section
4.002 of article 6702-1, V.T.C.S., to finance the construc-
tion, improvement, and maintenance of farm-to-market roads
by the highway department. The fund is to be used for a
system of roads selected by the State Department of Highways
and Public Transportation after consultation with        the
commissioners courts of the counties as to the most needed
roads in the counties. V.T.C.S. art. 6702-1, 5 4.002(c).
The roads "shall serve rural areas primarily" and "shall not
be potential additions to the federal aid primary highway


     1. Article 6673c, V.T.C.S., appears to be one of a
series of enactments which shifted most of the costs of
providing highways and roads from the counties to the state.
See aeneu     Jefferson Countv v. Board of Countv and Dist.
  .   debtednesa 182 S.W.Zd 908, 912 (Tex. 1944): see al o
V.T.C.S. arts. 6k70, 6673, 6674b, 6674q-2, 6674q-4; Attorn&
General Opinion V-1115 (1950).




                             p. 5768
      Honorable John T. Montford - Page 3 (JM-1101)
. .



      system . . . .I* &   5 4.002(d). They are moreover to "be
      capable of early integration with the previously improved
            road svstem, and at least one end should connect with
      a road already or soon to be improved on the State svstem of
      w.n      Zg, 5 4.002(d)(5) (emphasis added).
           The provisions on building and financing farm-to-market
      roads generally refer to them as roads, and not state
      highways, thus suggesting that they are not state highways
      within section 4.301(c) of article 6702-1, V.T.C.S.    These
      roads primarily serve local needs for transportation and for
      access to other state roads, rather than the needs of
      traffic going through the county or the state. Thus, in
      acquiring the right-of-way for a farm-to-market road the
      county is ordinarily paying a cost of a facility that will
      principally benefit local users. Both the language and the
      purposes of farm-to-market legislation persuade us that
      these roads are not state highways for which the state must
      reimburse right-of-way costs under section 4.301(c).
           The circumstances under which the predecessor        of
      section 4.301(c), article 6702-1, V.T.C.S., was enacted and
      its legislative history also support our construction of
      this provision.    Section 4.301(c) derives from      former
      article 6673e-1, adopted in 1957 to authorize the highway
      department to spend money for "the purchase of rights of way
      for certain highways under certain conditions . . . .I8 Acts   ,,
      1957, 55th Leg., ch. 301, f 1, at 731 (title). Before 1957,
      local governments had to nav the entire cost of riaht-of-wav
      for state highways. Texas- n-New Hiahwav Riaht-Of-W& Policv
      TEX. RESEARCH LEAGUE ANALYZES, July 17, 1957. In that yea;
      the legislature changed this practice by adopting House Bill
      620, codified in part as article 6673e-1, V.T.C.S., and
      later recodified as section 4.301(c) of article 6702-1,
      V.T.C.S.
           A contemporary report on Texas highways prepared by the
      Texas Research League at the request of the highway commis-
      sion proposed a solution to the "right-of-way problem"
      that was subsequently adopted as House Bill 620.       Texas
      Research League, A Program for Texas Highways: A Report to
      the Texas Highway Commission, ch. V, "The Right of Way
      Problem" (1957). The report recommended that the State
      Highway Commission establish a policy of paying a percentage
      of the cost of right-of-way on interstate highway system
      projects and primary and secondary state highway system
      projects. &    at 65. It also recommended that the highway
      commission "continue to     require local governments     to
      purchase or otherwise provide the right-of-way for state
      farm and ranch to market roads." ;EBtat 67. The report
      explained its different treatment for farm-to-market roads



                                   p. 5769.
Honorable John T. Montford - Page 4 (JM-1101)




on the ground that most of them were built, at least in
part, along rights-of-way originally used for a county road.
The amount of additional right-of-way required could usually
be obtained at nominal cost and in many cases would be
donated by the abutting land owners "who are after all, the
primary beneficiaries of the project." &    1
     Section 1 of House Bill 620 appears to embody the
suggestions of the Texas Research League report as to
providing reimbursement for costs of acquiring right-of-way
for interstate highways and major state highways, but not
for farm-to-market roads.3     When   the bill was    being
considered at second reading by the House, the following
amendment was proposed and rejected:
           Section 4.   The provisions of this act
        shall also apply to the county expended costs
        of right-of-ways and right-of-way easements
        of Farm to Market Roads changed to State
        designated Highways within ten years of their
        construction.
H.J. of Tex., 55th Leg., Reg. Sess. 2435 (1957). The text
of the rejected amendment indicates that farm-to-market
roads are not state designated highways within section 1 of
Rouse Bill 620, which became article 6673e-1, V.T.C.S.
Thus, section 4.301(c) of article 6702-1, V.T.C.S., which
carries forward the language of section 1 of House Bill 620,
does not apply to farm-to-market roads.
     There are cases construing the predecessor of sub-
sections 4.301(a) and 4.301(b) of article 6702-1, V.T.C.S.,
which hold that a farm-to-market road is part of the state
highway system. &8    Bolin    Braz ria County , 381 S.W.2d
206 (Tex. Civ. App. - Hous&    19645)no writ): :Moodv Cotton


     2. Senate Bill 1528 of the 71st Legislature shows that
donation of right-of-way for farm-to-market roads is not a
thing of the past. Acts 1989, 71st beg., ch. 706, at 3238
(to be codified at      Local Gov't Code 8 43.032).      It
authorizes a home-rule city to annex a certain area crossed
by the proposed route of a farm-to-market road if the
landowner has donated or is committed to donate         the
right-of-way necessary to construct the road.
     3. The other provisions of House Bill 620 related to
financing the state's acquisition of rights-of-way.   Acts
1957, 55th Leg., ch. 301, f8 2, 3, at 732-735.




                             .P.~5770
      Honorable John T. Montford - Page 5 (JM-1101)
. .



                                                 (Tex. Civ. App. -
      Fort Worth 1953,                           v. a s     our&y
      243 S.W.2d 277 (Tex. Civ. ADD. - Waco 1951, no writ).   Sub:
      sections (a) and (b) of s&ion     4.301 derive from a 1925
      enactment, former article 6674n, V.T.C.S. Acts 1925, 39th
      Leg., ch. 186, 5 14, at 458. A 1929 amendment to article
      6674n, V.T.C.S., authorized a commissioners court to secure
      and pay for right-of-way for state hiqhwavs. Acts 1929,
      41st Leg., 3d CIS., ch. i0, at 243. a,     Woodv Cotton co.,
      and Bolin addressed ouestions about the authoritv of a
      commissioners court to-condemn property for a farm-to-market
      road on behalf of the state under former article 6674n,
      V.T.C.S.   Their statements characterizing farm-to-market
      roads must be read in that context.4 None of the cases
      addressed state reimbursement of right-of-way costs under
      former article 6673e-1, V.T.C.S.
           In w,     condemnation proceedings were filed by the
      state through the commissioners court of Palls County to
      condemn land for a farm-to-market road. The property owners
      argued that the state could not condemn land for a farm-to-
      market road under former article 6674n, V.T.C.S., which
      authorized condemnations of land for roads to be included in
      the designated state highway system. Since a farm-to-market
      road was a local road and not part of the designated highway
      system, the plaintiffs claimed that it could not be con-
      demned under that statute. The court found that the highway


           4. Attorney General    Opinion V-1282    (1951)   also
      addressed the correct procedure for condemning land for
      farm-to-market roads. The opinion concluded that the county
      should institute the proceedings in its name and not the
      name of the state, because eminent domain proceedings were
      required by statute to be instituted in the county's name
      except as to land condemned under article 6674n, V.T.C.S.,
      for a ."'designated State Highway,* which term does not
      include farm-to-market roads.@' Attorney General Opinion
      V-1282, at 3 (1951). Since the county acquired title to the
      land as agent for the state, condemnation proceedings for
      rights-of-way for farm-to-market roads brought by       the
      commissioners court in the name of the state were not
      necessarily void, but the opinion reserved discussion of
      this question, which had not been asked. 1nUl.L      MOOdV,
      and Bolin, the commissioners courts had instituted pro-
      ceedings in the name of the state to condemn land for
      farm-to-market roads, and the courts had to address the
      application of article 6674n, V.T.C.S., to those pro-
      ceedings.



                                   p. 5771
Honorable John T. Montford - Page 6 (JM-1101)




commission had implied authority under article        6673c,
V.T.C.S., to condemn land for farm-to-market roads.
     Moodv Cotton Co . also involved a suit by the commis-
sioners court to condemn land on behalf of the state for a
farm-to-market road. The court held that former article
6674n, V.T.C.S., authorized the commissioners court "to
condemn land in the name of the State for right of way
purposes necessary or convenient to any road in the State
Highway System to be constructed, reconstructed, widened,
straightened or lengthened and that Farm-to-Market Road No.
455 is such a road." Moodv Cotton Cot, m,      at 206.
     Thus, the court in Moodv Cotton Co. concluded that a
farm-to-market road was a road in the state highway system
for purposes of article 6674n, V.T.C.S., while the a
court did not. noodv and a       were decided prior to the
enactment in 1957 of former article 6673e-1, V.T.C.S.
Belln, on the other hand, arose after the reimbursement
requirement was adopted. In Bolin, the Highway Department
had agreed to build a farm-to-market road in Brazoria County
if the county would furnish the right-of-way free of cost to
the state. The county's eminent domain suit was contested
on the ground that the road in question was a county road
and the commissioners did not follow the correct procedure
for condemning land for county roads. The court stated as
follows:
        The order of the Highway Commission . . .
        provides that when the proposal has been
        accepted by Brazoria County it is ordered
        that a Farm to Market Road be designated
        along said route. It was a road, exceat f r
        the riaht of way   to be constructed undzr
        contract by the &ate at its expense. . . .
        This designation of a Farm to Market Road
        suffices to make it a part of the Highway
        system.
a,     a,     at 209.
     Thus, the farm-to-market road in Bolin was part of the
state highway system for purposes of condemning the right-
of-way, but the state was not to pay any of the cost of
acquiring the right-of-way. The holdings of u,         Moodv
Cotton CO-, and w     are not inconsistent with our reading
of section 4.301(c) of article 6702-1, V.T.C.S.         That
provision does not require the state to reimburse counties
for 90 percent of the cost of acquiring right-of-way for
farm-to-market roads.



                             p. 5772
        .   Honorable John T. Montford - Page 7 (JM-1101)
'   ,




                       Farm-to-market roads are not "state high-
                    ways08for purposes of section 4.301(c) of
                    article 6702-1, V.T.C.S., which requires the
                    State
                    -      Department
                            . ..       of Highways and     Public
                    Transportation to pay 90 percent of the cost
                    of rights-of-way acquired by counties and
                    cities for "highways designated by the State
                    Highway and Public Transportation Commission
                    as United States or state highways."

                                             Zky&
                                                       MATTOX
                                               Attorney General of Texas
            .MARYNRLLER
            First Assistant Attorney General
            LCUMCCREARY
            Executive Assistant Attorney General
            JUDGE ZOLLIE STEARLEY
            Special Assistant Attorney General
            RICK GILPIN
            Chairman, Opinion Committee
            Prepared by Susan L. Garrison
            Assistant Attorney General




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