NEY NEIRAIL 

TEXAS 

August 6, 1948 

Hon. W. R. Baldridge 

County Attorney 

Denton County 

Denton, Texas 

Opinion No, V-652 

Rs: Authority of the Commissioners' Court to 

use the described road 

bond funds to erect 

bridges, culverts, and 

approaches to connect 

private property to 

farm-to-market roads. 

Dear Sir: 

Reference is made to your recent request 

which reaall, in part, as Pollows: 

'Pursuant to the provisions of 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 election was 

held In Denton County, Texas, on the 5th 

day of November, 1946, and the following 

issue was carried by 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,OOO road bonds 

for, the purpose of, purchasing rights-of-way 

and to pay all necessary costs and damages 

Incident thereto," The bonds were issued 

and sold and the proceeds were deposited 

in a fund known as 'Right-of-way fund," 

The said fund has been paptlallj consumed and expended In purchasing rlght-efway for farm-to-market roads and In payment of condemnation awards* 

910 title to the roads and right-ofway aforesaid was placed in the State of 

Texas, the State of Texas built the roads 

and-has assumed the obligation to repair 

and maintain said roads, 
Hon. W. K, Baldridge, page 2 (V-652) 

"As a result of the construction of 

the roads, drainage areas and ditch back 

slopes, travel from the road to private 

adjoining property became difficult and 

impossible in some instances, At the request of some owners of adjoining private 

propept7, some county commissioners erected culverts, bridges and driveways across 

ditches conneoting private property with 

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 erection of bridges, culverts and approaches connecting private property with 

State designated and maintained Farm-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 drainage areas 

of said right-of-way. 

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

"All further improvement of said 

State Highway System shall be made under 

the exclusive and direct control of the 

State Highway Department and with appropriations made by the Legislature out of 

the State Righway Fund. Surveys, plans 

and specifications and estimates for all 

further construction and improvement of 

said system shall be made, prepared and 

paid for by the State Highway Department. 

No further Improvement of said system 

shall be made with the aid of or with any 

moneys furnished by the counties except 

the acquisitien of right-of-ways which 

may be furnished by 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 settled by the decisions that 
Hon. W. K. Baldridge, Page 3 (V-652) 

the last quoted statutory provision did 

operate to transfer the former jurisaiction of counties and/or county commissioners' courts over state highways within county limits to the State Highway Commission. 

The bond issue in question was 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 character of a trust 

fund which may not be diverted to another purpose or project, any such attempt will 

be enjoined by a court of equity. The result thus obtained has 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-way fund for the construction and erection of bridges, culverts and approaches 

connecting private property with State designated and 

malntslned farm-to-market roads. 

SUMMARY 

not 

way 

for 

The County Commissioners1 Court may 

expend any portion of the Right-ofFund (derived from the sale of bonds) 

the construction and arection of bridges, 

culverts, and approaches connecting private 

property with State designated and maintained farm-to-market roads. 

53 s,w.(2a) 817. 

Fletcher V. Elg, 

Yours very truly, 

ATTORNEY GENERAL OF TEMS 

Assistant