NEY NEIRAIL

TEXAS

August 6, 1948

Hon. W. R. Baldridge County Attorney Denton County Denton, Texas OpinionNo, V-652

Rs: Authority of the Commissioners'Court to use the describedroad bond funds to erect bridges, culverts,and approachesto connect private property to farm-to-market

roads.

Dear Sir:

Reference is made to your recent request which reaall, in part, as Pollows:

'Pursuantto the provisionsof ArtIcle 3, Section 52, sub-section (c) of the Constitution

of Texas, and Article 752a, R, C, S, 1925, (Acts 1926, 39th Leg., 1st
cas.* P. 23, Ch. 16, #1) an electionwas held In Denton County, Texas, on the 5th day of November, 1946, and the following issue was carriedby more than a two-thirds majority, to-wit: 'For the issuance of road bonds and the levy of ad valorea taxes In payment thereof, to-wit, $25O,OOOroad bonds for, the purpose of,

purchasingrights-of-way and to pay all necessary costs and damages Incident thereto," The bonds were issued and sold and the proceedswere deposited in a fund known as 'Right-of-way fund," The said fund has been paptlallj consumed and expended In purchasingrlght-efway for farm-to-market roads and In payment of condemnation awards*

910 title to the roads and right-ofway aforesaidwas placed in the State of Texas, the State of Texas built the roads and-has assumed the obligationto repair and maintain said roads,Hon. W. K, Baldridge,page 2 (V-652)

"As a result of the constructionof the roads, drainage areas and ditch back slopes, travel from the road to private adjoiningpropertybecame difficultand impossiblein some instances, At the request of some owners of adjoiningprivate propept7, some county commissionerserected culverts,bridges and drivewaysacross ditches conneotingprivate propertywith the raadway O O o * 0 0 I shall appreciate it very much if you will give me your opinion as to whether the County Commissioners Court
can expend an of-way Fund9 7 portion of the said 'Rightderived from the sale of bonds as aforesaid)for the construction and erectionof bridges, culvertsand approaches connecting private propertywith State designatedand maintainedFarm-tomarket roads, I call your attention to the fact that the bridges and culverts
are constructed

not upon private propsrty but in and upon the highway rlght-ofway and in the aitche$ and drainageareas of said right-of-way.

Article 66749-4 provides, in part, as follows:

"All further improvementof said State Highway System shall be made under the exclusiveand direct control of the State Highway Departmentand with appropriationsmade by the Legislatureout of the State Righway Fund. Surveys,plans and specifications and estimates for all further construction and improvementof said system shall be made, prepared and paid for by the State Highway Department. No further Improvementof said system shall be made with the aid of or with any moneys furnishedby the counties except the acquisitienof right-of-ways which may be furnishedby the counties,their" subaivialons

or defined road districts,

It is stated by the court In the case of Gabbert v. City of Brownwood, 176 S,W,(2d) 344 that:

"It is settledby the decisions thatHon. W. K. Baldridge,Page 3 (V-652)

the last quoted statutoryprovisiondid operate to transfer the former jurisaiction of countiesand/or county commissioners' courts over state highways within county limits to the State Highway Commission.

The bond issue in questionwas voted for the purpose of "purchasing rights-of-way

and tg pay all necessary costs and damages incident thereto.

The Court, in passing upon this question in the case of Fletcher v. Ely, 53 S.W.(2d) 817, writ refused, lays down this well-settled proposition:
"That,when the voters thus speak, the proceeds of the bond Issue are 'ear marked' with the characterof a trust fund which may not be diverted to another purpose or project, any such attempt will be enjoinedby a court of equity. The result thus obtainedhas been referred to as having the binding effect and force of a contract. Black v, Strength, 112 Tex. 188, 246 S.W. 79; 19 R. C. L. ppe 1163, 1164; Roane County Court v. t'Brisn, 95 W. Va. 32, 122 S.E. 352, 355.

In view of the foregoing, It is our opinion that the County Commisrianers Court may not expend any portion of the said right-of-wayfund for the construction and erection of bridges, culvertsand approaches connecting

private propertywith State designatedand malntslned

farm-to-market

roads.

SUMMARY

not way for The County Commissioners1 Court may expend any portion of the Right-ofFund (derivedfrom the sale of bonds) the construction

and arection of bridges, culverts,and approaches connectingprivate propertywith State designatedand maintained farm-to-market

roads. 53 s,w.(2a) 817. Fletcher V. Elg,

Yours very truly,
ATTORNEYGENERAL OF TEMS

Assistant