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Honorable 0. E. Cerron CountyAttorney Ector County Odessa, Texas Opinion No. O-2501 Re: ,Eligibilityof certainbonds of Ector County to participate in the County and Road District Highway Fund provided, inHouse Bill No.6aa, 'FortySixth Legislature,Regular Session, 1939.

Dear Sir:

We are in receipt of your request for our opinion
as to the eligibility of certain bonds issued by Ector County, the proceedsof which allegedly have been expended upon roads
now constitutinga part of the designated StateHighway System, that is,whether the bonds are eligible to participate in the funds coming into the Board of County,and District Road Indebffedness as provided in House Bill 688, Forty-sixth Legislature,Regular Session, 1939.

The facts,briefly stated, are as follows:

On May 22, 1937, Ector County voted $135,000 of Road Bonds, which bonds were soldAugust 1, 1937, and the proceeds thereof expended in the purchase of a right-of-way, 120,feet inwidth, the fencing of same, and on November 13, 1937, a~contractwas let by the CommissionerstCourt for the purpose of constructinggrading and drainage structures and a flexible base on the first 12.71miles of a road extending northwest from Odessa toward theWinkler County line. The first section
was completedby the contractor on June 14, 1938, and paid for from the proceeds of this bond issue,Honorable O.,E. Gerron, page 2 . .

At a public hearing of the StateHighway,Commission in Austin on June 21, 1938, representativesof the Commissioners1Court of Ector County appeared in behalf of
a road from Winkler County to Odessa and Midland, atwhich time the StateHighway Commission adoptedMinute No.15111, which reads, in part, as follows:

"InWlnkler and Ector County it is the expressed intention of the Highway Commission to add to the StateHighway System at some future date
a road fromKermit extending northeast to the Winkler-gctorCounty Line, and thence northeast across EctorCounty viaQoldsmith to an intersectionwith Highway Non.51~north of 'Odessaat the present intersection of HighwayNo. 51 and 158, and it is further intended at some future date to add to the State Highway System a road from Odessa northwest to an intersectionwith the above described route at a goint about 7-l/2miles northeast of the Ector- ~NihklerCounty Line."
Minute No. 15111 of theHighway Commission records is lengthy andwill not be quoted here in full, but itmust be noted in theread'%fg of saidminute that certain conditions are imposedwhich must be compliedwith prior to the time such designation shall become effective. This being a condition precedent, it calls for the performance of some act or then happening of some event after the terms of the contracthave been agreed upon before the contract shall take effect. You have stated inyour communicationthatEctor County has complied with all of the terms laid down'in theminutes of the Highway Commission~relativeto the obtaining of the right-ofway, the grading and drainage structures and the construction of the flexiblebase for such road.

According to the information suppliedus; thatpart of the road extendqpgnorthwestwardly from Odessa to a connectionwith the StateHighway running east fromKermit&n Winkler Countywas not finallyand officiallydesignated as a part of the StateHighway System until June 20, 1939; however, in the adoption of Minute No.16373 the Highway Commission directly referred toMinute No.15114, here%iabove quoted, by cancelling suchminute and adoptingMinute No.16373 in lieuHonorable 0. E. Gerron, page 3

thereof. This highway was designated as Highway No. 302 of the State Highway System.

Paragraph 2 of Section 6a of House 'Bill~688,supra, reads as follows:,

"In the event the StateHighway Commission has on a date prior to January 2, 1939, ind,icated:_' its intention of designating as ,State H.ighwaysthe'~ public roads of any county or defined road district in this state, and has evidenced such in-~~ tention in its official records or files, then the provisions of thisAct shall apply as if the roads had actually been designatedprior to January 2,,1939.': ; The language of Minute No.15111, which is'a part of the official records of the State Highway Commission and is dated June 21, 1938, clearly reveals that theHighway Corn-, mission intended at some future date to designate a road in H?tor County running northwesterly from Odessa toward the Winkler County Line as a part of the StateHighway System, which we think brings itwithin the terms of the above quoted paragraph fromHouse Bill 688. It will be noted that such paragraphprovides that the Commission shall have indicated its intention of designating as State Highways'tbhe public roads of any county or def~ined road district, and shall have evidenced such intention in its official records,
or files. Article 6666 of Vernon's Annotated Civil'Statutes provides that the Commission shallmaintain a record,of all proceedings and official orders and keep on file copies of all road plans, specificationsand estimates prepared,, by the department or under its direction. We think,that Minute No.15111 complieswith the termsprescribed in paragraph 2 of Section 6a of House Bill 688 and evidences t.he

. . ', intention of theHighway Commission to designate such road, and that the intentionhas been properly recorded in the official records of the Commission. An official record is one made by a public officer in pursuance of a duty and which serves as amemorial of official transactions for public referencer: It is our opinion that the indicationof an intention of designating a road as a part of the StateHighway Systemmust have been formally recorded in the official records of the Highway Commission and shall have been adopted by the Commission at a regular or calledmeeting, It is obvious from the information supplied in your communication that theHighway~Commissionhas in the past actedwith sufficient formalitywith reference to the designation of this particular road in Hctor County to bring samewithin theHonorable 0. E. Gerron, page 4

terms of Section 6a of House Bill 688.

Your question reads as follows:
"Willyou please advise if in your opinion this expenditureby Ector County and the bond issue fromwhich itwas derived is eligible to participate in the distribution of moneys coming into the County and District Highway Fhnd
as provided for inHouse Bill 688, passed by the Forty-sixth Legislature,Regular Session, 1939, in compliancewith paragraphs 2 and 3 of Section 6a thereof."

We do not thinkparagraph 3 of Section 6a applicable, and advise thatyour question should be answered in the afL flrmative.

Trusting that the foregoing satisfactorilyanswers your inquiry,we are

Yours very truly

ATTORREYGERERAL OFTEXAS

BY s/ Clarence E. Crowe

ClarenCe'E,.

Crowe APPROVEDAug.9,19'(0 Assistant Grover Sellers FirstAssistant Attorney General

APPROVED Opinion Committee by BWB, Chairman

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