HonorableA. 3. Bryan, Jr.

CriminalDistrictAttorney Hill County Hillsboro, Tex8.e
Dear Sir: OpinionNumber O-2430 Rer May the Commissioners1 Court purchase material and pay for labor in fencing right-of-wayout of bond money voted for the purpose of purchaelnga rightof-way for the use of the State Hlghway Department In building State designatedhighways?
We acknowledge

receipt of your opinion request of recent date and quoteyour letter as follows1

~"Thisofficewould appreciatean opinion from your-department

concerningthe followinggactsr A bond issue wa8 parseed

inthia countywhich set aside $30,000 to be ueed for the purpose of purchasingright of way for the use of the State HIghway Departmentin building paved State designatedhighwaya. The Commissioners' Court has purchasedright of way for highways to be paid for out of the bond money.

"In most lnstances~the new highwaywill cut across a pasture or open field. When such a case arises

--- the..landowners have 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 purchase 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 $100.00per acre for the,.three.:aore8 in the right of way. The court agrees to pay him the $100.00per 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 included In the purchaseprice a8 a part thereof,would that be proper?"HbnorableA. J. Bryan, Jr., Page 2 O-2430

,- It Is elementarythat the fund derived from the sale of bonds may not be diverted from the purposes specified in the proposition submittedto the electora. Aransas Counts vs. Coleman-Fulton Pasture 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 propositionappearing on the ballot paper,ls alleged, the only question Is whether the expenditure contemplated1s within or without the propositionupon Its true construction. Adams vs. Mullen, 244 S.W. 1083.
As we understand It, the bonds In questionwere voted for the purpdse 'of purchasingright-of-wayfor the use of the State Highway Bepartmentin buildingpaved State designatedhighways."

In condemnations&s the Texas courts have held that reasonable costs of sufficientfencesmay be taken %nto considerationin fixing the amount of damages due the landowner. i3.u. 380. Morris VB. Coleman County, 28

It 1s the opinion of this departmentthat the construction of necessaryfences or paying for fencing of lsnd acquired for rlght-ofway purposes Is an incidentaland necessaryexpense in acqulrlng said right-of-way. Therefore, in our opinion,bond money may be used for fencing

-. land acquired for right-of-ways where bonds were voted for the purpose above quoted. This may be done in one of two ways -- the Commissioners' Courtmay Include the reasonableprice of necessary fences in the amount that they pay for the land for right-of-way, or if in their sound discretionthe 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 IncPudingthlsitem In the purchaseprice of the land. Under the IIlustratlon stated ln your letter,where the price of fencingwas Included In the originalpurchaseprice of the land, the court cannot later pay for the fences out of bond money.

Trusting that thipl answi)rs

your question,we are Very truly yours

COB: S!WC APPROVED JUNE14 1940 s/mRALDc. MANi ATTORuEpGEWERALOFTEXAS s/ Claud 0. Boothman Claud 0. Eioothman Aasietamt

up Approved Opinion Committeeby s/BWB Chairman