## THEAYTORNEY GENERAL
OFTEXAS

August 16, 1947

Hon. V. H. Sagebiel OpinionNo. V-347 CountyAttorney GillespieCounty Re: Where a countypro; Fredericksburg,

Texas cures a right-of-way

for a farm-to-market road wholly within two precincts,is it
a county-wide

project to beg paid from funds of the entire county, Dear Sir: i

. Your statementand request for an opinion ere in part as follows:

"The populationof GillespieCounty, accordingto the last Federal Census is 10,670, and the.assessed valuationis approximately$8,000,~00.00.

"The Conmissioners, who are also ex officio Road Commissioners, operate,build and maintain county roads individually~in their severalprecincts, each.out .of road building funds apportionedtheir precincts pro rata according to assessedvaluations in their individualprecincts. For in? stance,PrecinatNumber One, which includes the valuations of the city of Fredericksburg, receives 37/100 of the total county road funds and spends about l/5 thereof in building and maintaining streets in the city of Fredericksburg. The other three precincts are apportioned23/100, 22/100 and 18/lOO, respectively.

*A Federal farm-to-market road is being surveyed under the supervisionof the State Highway Departmentand the right-ofway must be procured. This highway is being built in a section of the county.affecting only two of the Commissioners'Precincts and is not in any way beneficialto the residents of the other'twoprecincts.Hon. V. H. Sagebiel - Page 2 (V-347)

"Under these facts is the procuring of the right-of-way a matter to be paid for out of the funds of the precincts in which the farm-to-market road is being constructed,

or is it a county-wideproject for which all the Commissionersprecinctsmust provide funds?"

The question imaediately arises as'towhat 'interpretation

and effectshall be given Article 6740, V.C,S.,which reads in part as follows:

"The commissioners court shall see that the road and bridge fund of their county is judiciously and equitablyexpended on the roadsand bridges of their county, and, as nearly as the condition and necessityof the roads will permit, it shallbe expended in each county commissionersprecinct in proportionto the amount colleoted in such'precinct,"

In regard to similar situationsinvolving State highways, it is well settled that the Comtnissioners' Court may look to the entire county for funds to procure a right-of-way that affectsonly one precinct. Shivers v. Stovall, 75 S.W. (2d) 276, affirmed 103 8.W. @;~i5;~~)Garland v: Sanders, 114 S.W. (2d) 302 (writ

The principlesand theories in relation to
a nfarm-to&rketW road are just the same. It is stated in the Shivers case that:

"Theseprovisionsof the law, as well
as otherswhich might be mentioned, clearly contemplatethat the aommissionerscourt of each county shall regard.theroads and hiphways of the county PS a system, to be laid out, changed,repaired,improved,and maintained, as far as practical,as~ a whole to the best interestsand welfare of all the p pie of the county_ It is olearly contE:platedthat all riads and bridges.ofthe county shall be maintained,repaired, and imorovedwhen necessarv'" as the conditions may require,regardless*of the 3recinct in which same may be located,sofar as the fundswill equitably justify.

-.Hon. V. H. Sagebiel - Page 3 ‘(V-347)

bridge fund acoording to any fixedmathematical formula, ana apportion same in aaVance for the purpose of being expended in

From the above cited case, it is apparent that the court makes no distinctionas to the type or classificationof roads in regard) to its constructionout of the county road fund, Nor do the later statutes,Article 6674-20,V.C.S., and H, Bc No. 21 of the 50th Legislature, which deal specifically with nfarm-to-narketll roads, in any way change the above holding.

On the other hand, ‘it is elementarythat the Commissioners*

Court is the agency of the whole county with ,eachcommissionerresponsibleto more than his owns precinct, Iiis

duties are county-wide; he must safeguard the welfare of all the county,and in carrying out his powers of establishingand maintaininga county road system, the ‘aountyroad fund may, be used in one or all precinctsd.epending upon the needs of the county. This should not .be

taken to mean, however, that it is mandatory that the Commission&s* .Courtshould look to the whole oounty to procure the funds for a right-of-way. Article 6740, supra, clearlypoints out that, as nearly
as .conditions

will allow and as nearly as necessitywill permit, the said funds shall be expended in specificprecincts in proportion to the amount collectedtherein. In this regard, also, the Shivers case, supra, explains:

n the commissioners court must give eif&i to said article 6740 except when the necessitiesof the roads and bridgesrequire a departure from it. That article requires that the road and bridge funds of all counties shall be judiciouslyand equitably expended. It further requires that such funds shall, as nearly as the conditionand necessityof the roads will permit, be expended in each commissioners precinct in pro-Hon. V, H, Sagebiel - Page 4 (V-347)

portion to the amount collectedin such precinct, The dominantpurpose of this statute seems to be to require that the road and bridge fund shall be expended in each commissionersprecinct in porportion to the amount

avoided except In oases or oonditionsof neosssitg, Of oourse, the commissioners court has the right to exercise its sound judgment in determiningthe necessity,but it cannot act arbitrarilyin regard to such matter -* (Bnphas

is supplied

)

In view of the foregoing,it is our opinion that “each precinct shall prima facie be entitled to its
own funds;” however, in “cases or conditionsof necessity* the Commissioners’ Court in “its sound judgmentW may expend funds allocated to one precinct in another precinct. In otherwords, this matter must be decided by the Comuissioners’ Court, and so long as said Court exercises its best judgmentand does not act arbitrarily in regard thereto, its findingswill not be disturbed.
Under the facts submitted,the cost of procuring the right-of-wayfor the farm-to-market roads should be paid for out of the funds allocatedto the two precincts in which the roads are to be located,unless the Commissioners1

Court in its sound judgmentfinds, by proper court order, that this is such a case, or conditions are such, that the funds allocatedto one precinct
or precincts should be expended in anotherprecinct or precincts,

SuA5!44RY

The cost of procuringa right-of-way for a farm-to-market road should be paid for out of funds allocatedto the precincts in which’the road is to be located,‘unlessRon, V,. II, Sagebiel - Page 5 (V-347)

the Oommissioners~ Court in its sound udgmant finds; by proper court ora&,, tha i conditionsare such that~ the fur&as

all?- cated. to one: precinct or precincts should be expended in another .precinot or precAgtsM~ (Shiv(rrs

vI &tovall, 103 WVR (2d)

,.

JHR:djm:wb

. Very truly y.ours