      Honorable A. 3. Bryan, Jr.
      Criminal District Attorney
      Hill County
      Hillsboro,   Tex8.e

      Dear Sir:                     Opinion Number O-2430
                                    Rer May the Commissioners1Court purchase
                                        material and pay for labor in fencing
                                        right-of-wayout of bond money voted
                                        for the purpose of purchaelng a right-
                                        of-way for the use of the State Hlgh-
                                        way Department In building State
                                        designated highways?
                     We acknowledgereceipt of your opinion request of recent
      date and quote your letter as follows1
                     ~"Thisoffice would appreciatean opinion from
           your-departmentconcerningthe following gactsr A bond
           issue wa8 parseedinthia county which set aside $30,000
           to be ueed for the purpose of purchasing right of way
           for the use of the State HIghway Department in building
           paved State designated highwaya. The Commissioners'
           Court has purchased right of way for highways to be paid
           for out of the bond money.
                     "In most lnstances~thenew highway will cut
           across a pasture or open field. When such a case arises
---        the..landownershave asked that the county buy the
           material;:arid
                        erect fences along the right of nay and pay
           for the same out of the bond money.
                     "Question: Can the bond money be used to pur-
           chase the material and pay for the labor on these fence@?
                     "I might add to the statementabove this
           llluetrationr A man owns a strip of land and the new
           highway goes through the middle of his pasture and he
           asks $100.00 per acre for the,.three.:aore8
                                                     in the right
           of way. The court agrees to pay him the $100.00 per
           acre and secures from him a deed to the right of way.
           Dater he asks that they erect the fences.

-                    "Question: If the cost of the fence was in-
           cluded In the purchase price a8 a part thereof,would that
           be proper?"
      Hbnorable A. J. Bryan, Jr., Page 2                           O-2430


,-
                     It Is elementary that the fund derived from the sale of
      bonds may not be diverted from the purposes specified in the proposition
      submitted to the electora. Aransas Counts vs. Coleman-FultonPasture
      Company, l.91,sY.555; Reathman vs. Singl&ary, 12 S.W, f2d) 150; Hugglns
      vs. Baden, 259 S.W. 204.
                     It follows that where a departure from the propositionappear-
      ing on the ballot paper,ls alleged, the only question Is whether the ex-
      penditure contemplated1s within or without the proposition upon Its true
      construction. Adams vs. Mullen, 244 S.W. 1083.
                     As we understand It, the bonds In question were voted for
      the purpdse 'of purchasing right-of-wayfor the use of the State Highway
      Bepartment in building paved State designatedhighways."
                     In condemnations&s the Texas courts have held that reason-
      able costs of sufficient fences may be taken %nto considerationin fixing
      the amount of damages due the landowner. Morris VB. Coleman County, 28
      i3.u.380.
                     It 1s the opinion of this department that the construction
      of necessary fences or paying for fencing of lsnd acquired for rlght-of-
      way purposes Is an incidentaland necessary expense in acqulrlng said
      right-of-way.
                     Therefore, in our opinion, bond money may be used for fencing
 -.   land acquired for right-of-wayswhere bonds were voted for the purpose above
      quoted. This may be done in one of two ways -- the Commissioners'Court may
      Include the reasonableprice of necessary fences in the amount that they
      pay for the land for right-of-way,or if in their sound discretion the court
      believes it is better and more economicalfor the county, they may purchase
      the material and pay for the labor to construct said fences out of bond
      money, not IncPuding thlsitem In the purchase price of the land. Under the
      IIlustratlon stated ln your letter, where the price of fencing was Included
      In the original purchase price of the land, the court cannot later pay for
      the fences out of bond money.
                    Trusting that thiplanswi)rsyour question, we are
                                           Very truly yours


                                           s/ Claud 0. Boothman
                                              Claud 0. Eioothman
                                              Aasietamt
      COB: S!WC

      APPROVED JUNE14 1940
      s/mRALDc.    MANi
      ATTORuEpGEWERALOFTEXAS
 up   Approved Opinion Committee by s/BWB Chairman
