Hon. Walker Carson         Opinion NO. o-2778
County Attorney            Re: Can the commissioners' court
Hudspeth County            legally purchase road machinery
Sierra Blanca, Texas       for the maintenance of lateral
                           roads out of the lateral road main-
Dear Sir:                  tenance fund mentioned?
         Your recent telegram requesting an opinion of this
department upon the above stated question has been received.
We quote from your telegram as follows:
         "Please advise me by wire collect whether
    or not in your opinion the county commissioners'
    court can legally purchase road machinery for
    the maintenance of lateral roads out of the la-
    teral road maintenance fund created by State
    money paid this year to county for lateral road
    construction and maintenance. This is a new
    fund under a new statute and the only authority
    I find is particle66749-7 IHI and ,Article6674q-
    13.  The commissioners1 court has heretofore
    elected to use this money for construction and
    maintenance of lateral roads as required by Ar-
    ticle 66744-7 lHt."
           Paragraph H of Article 66749-7   reads, in part, as
follows:
         "The monies allocated to each county from
    the Lateral Road ,Accountshall be used by said
    county first for paying the principal, interest
    and sinking fund requirements maturing during the
    fiscal year for which such money was allocated
    to such county on bonds, warrants and other le-
    gal.obligations issued prior to January 2, 1939,
    the proceeds of which were actually expended in
    acquiring rights of way for State designated high-
    ways, it being the intention of the Legislature
    to designate and set apart sufficient money to
    pay off and discharge said outstanding obligations
    incurred for right of way acquisition. Funds re-
    maining in the Lateral Road Fund of any county
Hon. Walker Carson, page 2


    after the payment of said right of way obliga-
    tions may be used by the county, under the direc-
    tion of the Commissioners Court, for any one or
    all of the following purposes: (a) for the ac-
    quisition of rights of way for county lateral
    roads and for the payment of legal obligations
    incurred therefor prior to January 2, 1939, (b)
    for the construction or improvement of county
    lateral roads, (c) for paying the principal, in-
    terest and sinking fund requirements of any bonds
    or warrants which were legally issued by such
    county or Road District prior to January 2, 1939,
    the proceeds of which were actually expended in
    the construction or improvement of lateral county
v   roads, (d) for the purpose of supplementing funds
    appropriated by the United States Government for
    Works Progress Administration highway construction,
    and such other grants of Federal funds, as may be
    made available to the counties of this State for
    county lateral road construction and (e) for the
    purpose of cooperating with the &ate Highway De-
    partment and the Federal Government in the con-
    struction of farm-to-market roads.
         QUter such allocation has been made to the
    several counties in the State, the Board shall in
    writing notify the Chairman of the Commissioners
    Court of each county of the amount which has been
    credited to that county. After receiving said no-
    tice, the Commissioners Court shall, within sixty
    days, notify the Board of the manner in which it
    has exercised its option as to the one or more
    specified uses of said money permitted under this
    Act.
         "In the event the Commissioners Court of a
    county shall have elected to use all or any part
    of the money thus allocated to said county for the
    purpose of paying principal and interest or sink-
    ing fund requirements of its indebtedness for la-
    teral roads, such money shall be applied pro rata
    to the payment of the debt service requirements
    of all issues of lateral road indebtedness of the
    county and all included defined road districts,
    in the proportion that the debt service require-
    ments of each issue bears to the aggregate debt
    service requirements of all issues for that year.
    When any issue of obligations which will receive
Hon. Walker Carson, page 3


     aid under this section is already listed with
     the Board of County and District Road Indebted-
     ness, the Board shall credit the amount appli-
     cable to said issue to the account of said issue
     in the State Treasury. wasto all other issues
     of obligations, which will receive aid under this
     subsection (h) theCommissioners Courts of the
     specific counties affected shall have the right
     if so desired to utilize the facilities of the
     State Board of County and District Road Indebted-
     ness in paying the amounts of principal and in-
     terest on said issues substantially in the manner
     that payments are effected as to such eligible
     obligations.
           “In the event the Commissioners Court of a
     county elects to use the money allocated to it
     from the Lateral Road Account for the construc-
     tion of lateral roads it shall notify, in writ-
     ing, the said Board oh its election to make such
     use of said money. Whereupon, said Board shall
     remit said money, or the part thereof to be util-
     ized for such purpose, to the County Treasurer
     of such county, said money to be deposited by the
     County Treasurer in accordance with the law, and
     the same shall be utilized by the county, acting
     through the Commissioners Court, for the con-
     struction of lateral roads. Each county may call
     upon the State Highway Commission to furnish ade-
     quate technical and engineering supervision in
     making surveys, preparing plans and specifica-
     tions, preparing project proposals and supervis-
     ing actual construction; the actual cost of such
     aid in supervision shall be paid by the county as
     a charge against its project.
          “In order that maximum benefits may be ob-
     tained in the expenditure of the State fund made
     available to the counties under this Act for the
     construction of county lateral roads, and so that
     the counties may have the benefit of widespread
     competition among contractors in bidding on such
     projects, such counties may, in l~lkieir
                                           discretion
     authorize the State Highway Commission to mceive
     bids in Austin on all such construction in the
     same manner as is now provided by law for the
     award of contracts on State Highways.
Hon. Walker Carson, page 4


         "When any road which shall have been con-
    structed by any county wholly from the County
    Lateral Road Account shall be designated by
    the State Highway Commission as a part of the
    system of designated State Highways, the desig-
    nation of such road by the State Highway Com-
    mission shall constitute a full and complete
    discharge of any and all obligations of the
    State, moral, legal or implied, for the payment
    of such highway.
          "In the event the Commissioners Court
     elects to cooperate with the Highway Department
     in the building of or in the construction of,
     farm-to-market roacls, it shall by proper reso-
     lution entered upon its minutes, authorize the
     State Treasurer to pay such funds to be so used
     over to the StatesHighway Department for use on
     certain designated projects. Regardless of how
     the funds allocated to the counties from the
     Lateral Road Account are used, the County Judge
     of each county shall file with the Board on or
     before October lst, of each year, a verified
     report showing the manner in which the said
     funds have been expended, the nature and loca-
     tion of the roads constructed and such other
     information as the Board may hrom time to time
     require."
            ,Article6741,   Vernon's Annotated Civil Statutes,
provides:
           "The commissioners court may make and en-
     force all reasonable and necessary rules and
     orders for the working and repairing of public
     roads, and to utilize the labor to be used and
     money expended thereon, not in conflict with
     the laws of this State. Said court may purchase
     or hire all necessary road machinery, tools or
     teams   and hire such labor as may be needed in
     additfon to the labor required of citizens to
     build or repair the roads."
          We quote from Texas Jurisprudence, Vol. 21, p. 630,
as follows:
          "Subject to any local law, commissioners'
     courts are invested with the power and charged
Hon. Walker Carson, page 5


       with the duty of creating and maintaining
       adequate roads. They are commanded tihai out
       and establish roads when necessary.
       words mean *make, create or found permanently’
       -- that is to say they are empowered to do all
       such acts as may be necessary to construct
       permanent roads. They are further directed to
       ‘exercise general control over all roads, high-
       ways, ferries and bridges in their counties.’
       Accordingly, where a statute applicable to
       highways merely empowers commissioners’ courts
       to exercise their powers in a particular way,
       it will be construed as being subordinate to
       the general power of control, and not manda-
       tory. Similarly the doctrine of implied pow-
       ers enables colid ssioners’ court3 to do all
       that is necessarily incidental to their declared
       powers of road improvement and regulation. The
       limits of their powers, however, are reached
       when they exceed what may fairly be implied.
            “Just as in matters involving the establish-
       ment of a highway, the administrative powers of
       commissioners’ courts are exercisable according
       to their discretion with which the-courts re-
       frain from interfering except upon a clear show-
       ing of abuse. ***‘I
            Lasater v. Lopez, 202 S.W. 1039, affirmed 217 S-W.
373.
           It will be noted that paragraph H of Article 6674q-7,
supra, specifically provides that the moneys allocated to each
county from the lateral road account shall be used by said
county first for paying the principal, interest and sinking
fund requirements maturing during the fiscal year for which
such money was allocated to such county on bonds, warrants
and other legal obligations issued prior to January 2, 1934.
As stated in the statute it was the intention of the Legisla-
ture to designate and sec apart sufficient money to pay off and
discharge said outstanding obligations incurred for right-of-
way acquisition. It is further provided that funds remaining
in the lateral road fund of any county after the payment of
said right-of-way obligation may be used by the county, under
the direction of the commissioners1 court for any one or all
of the purposes as set out in the statute. Two of the purposes
for which the remaining fund may be expended as provided in the
statute is for the acquisition of rights-of-way for county
                                                               , -- .
Hon. Walker Carson, page 6


lateral roads end for the payment of legal obligations incur-
red therefor prior to January 2, 1939, and.for the construc-
tion or improvement of county lateral roads.
          When the commissioners1 court of a county elects to
use the money allocated to it from the lateral road account
for the construction or improvement of county lateral roads,
it is our opinion that the court may exercise all implied pow-
ers that.is necessarily incidental to their declared power of
constructing or improving of county lateral roads. Therefore,
you are respectfully advised that it is the opinion of this
department that the commissioners1 court may use the funds
remaining in the lateral road fund of a county to purchase
road machinerv ?or the maintenance of lateral roads when such
machinery is necessary for the maintenance, Construction or
improvement of the county lateral roads.
          In this connection we call your attention to our
Opinion No. O-2320 which held that:
          "The county is without authority to use the
     funds specifically credited to the various defined
     road districts by the terms of this Act for any
     purpose except that which would confer a direct
     benefit upon the taxpayers living within those
     particular defined districtsi and in harmony with
     such construction we advise hat the county cannot
     expend road district moneys pursuant to the option
     provided in Section 'El, paragraph 5, subsection
     (h), Section 6 of House Bill 688."
          Trusting that the foregoing fully answers your in-
quiry, we are
                              Yours very truly
                               ATTORNEY GENERAL OF TEXAS
                               By /s/ Ardell Williams
                               ,ArdellWilliams, Assistant
APPROVED SEP 30, 1940
/s/ Gerald C. Mann
AGGORNEY GENERAL OF TEXAS
APPROVED: OPINION COMMITTEE
BY8       BWB, CHAIRMAN
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