HonorableW. 0. Reed, Chairman
AppropriationaConrnlttee
House of Representatives
Austin, Texan

Dear Sir:
                           OpinionNo. O-3245
                           Ret Authorityof legislatureto appropriate
                               from State HighwayFund to pay Judeplent
                               obtainedby W. 5. Hale and wife against
                               the State of Texas.

Your letterof March 6th, 1941,request6the opinionof this Department
upon the questionwhether the Legialatti'emay appropriatefrom the State
HighwayFund moneys to pay the judgmantrenderedagainatthe State of Terse
in the case of W. S. Hale, et ux, va. The State of Texas, et al.

It appearsthat the &nd Legislature,at its RrgulsrSession in 1931,In
Senate BillNo. 197, grantedpormiaaionto W. S. Hale and Wife, M3ry D.
Hale, to use the State of Texds and the State Highway Commiasionfor
damagesoccasionedto the landa be     Sing to the Hales, by reason of the
constructionof State Highwe,No. 4 Y in such manner as to over flow and
otherwisedamage the Hale land. Suit was filed and judgmentrenderedfor
the Hales agalnstthe State of Texas. (See State v. Hale (Texas)146 S. W
(2d)731)
                                                     7
No reason occurs to us, and none has been suggested,why the Legislature
may not appropriatefrom the State HighwayFund to pay this judgnmnt. The
State HighwayFund is availablefor the paymentof the expensesIncident
to the establishment, constructionand maintenanceof State Highways.'The
State has vested in the State Highway Commissionfull authority,and
charged it with the duty to designate,lay out and constructpublichigh-
ways. It has the right, aa the agent of the State, to take, damageor
destroyprivatepropertyT>r public use. This right has been guaranteedby
our Constitution.Public Xo:!ds are a great public convenience,and, if
necessaryto carry out plans for the completionof a public road, pr?.F%te
propertymq~ be totallyor partiallytaken or damagedto accomplishthat
purpose. This carrieswith it the power, if need be, that a servitudemay
be createdon land not actuallytaken or occupiedby the publichighway,
for the purposeof carryingoff,thewater, the naturalflow of which is
changedor divertedby theconstruction   of such highway."(Statev. Sale,
supra) It is clear that the comperxat'ionof :persona
                                                   for property"taken"
HonorableW. 0. Reed, page #2   (O-3245)



for publichighwaypurposes,as In the Hale case, i~,a,n expew. incident
to the establishment, constructionand main~;~;~~n~e~oL
                                                    C$ijteK;&ays.
No question,therefore,can arise as to'heappiopriationbeing an
unconstitutional diversionof a specialfund. The applicationof a portion
of the fund to the satisfactionof this judgmentIs but the application
of that portionof the fund to one of the very purposesfor which the
fund was created.

You are advisedthat, in our opinion,the Legislaturehas "bhepower to
appropriatefrom the State HighwayFund moneys to pay the judgmentrendered
againstthe State of Texas ln the case of W. S. Hale, et ux, v. The State
of Texas, et al.

                                    Yours very truly,

                               AlTORNEY0ENERALOFTEEP.S

                               s/Richard W. Fairchild



                               BY
                                    RichardW. Fairchild
                                              Amslstant

RWF:ep/ldw

APPROVEDMAR. 13, 1941
a/ GEIIALD
         c. MANN
ATTORNEYCEXEBALOFTEXAS

APPROVEDOPINIONCOMMITTEE
By B. W. B.
CHAhMAN
