Honorable A. 3. Bryan, Jr. 

Criminal District Attorney 

Hill County 

Hillsboro, Tex8.e 

Dear Sir: Opinion Number O-2430 

Rer May the Commissioners1 Court purchase 

material and pay for labor in fencing 

right-of-way out of bond money voted 

for the purpose of purchaelng a rightof-way for the use of the State Hlghway Department In building State 

designated highways? 

We acknowledge receipt of your opinion request of recent 

date and quote your letter as follows1 

~"This office would appreciate an opinion from 

your-department concerning the following gactsr A bond 

issue wa8 parseed inthia 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~the new highway will 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 statement above 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 included 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-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 proposition appearing on the ballot paper,ls alleged, the only question Is whether the expenditure contemplated 1s 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-way for the use of the State Highway 

Bepartment in building paved State designated highways." 

In condemnation s&s the Texas courts have held that reasonable costs of sufficient fences may be taken %nto consideration in fixing 

the amount of damages due the landowner. 

i3.u. 380. 

Morris VB. Coleman County, 28 

It 1s the opinion of this department that the construction 

of necessary fences or paying for fencing of lsnd acquired for rlght-ofway purposes Is an incidental and necessary expense 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' Court may 

Include the reasonable price 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 economical for 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 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 Committee by s/BWB Chairman