THEAYTORNEY GENERAL 

OFTEXAS 

August 16, 1947 

Hon. V. H. Sagebiel Opinion No. V-347 

County Attorney 

Gillespie County Re: Where a county pro; 

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 statement and request for an opinion ere 

in part as follows: 

"The population of Gillespie County, 

according to the last Federal Census is 

10,670, and the.assessed valuation is approximately $8,000,~00.00. 

"The Conmissioners, who are also ex 

officio Road Commissioners, operate, build 

and maintain county roads individually~in 

their several precincts, each.out .of road 

building funds apportioned their precincts 

pro rata according to assessed valuations 

in their individual precincts. For in? 

stance, Precinat Number 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 apportioned 23/100, 22/100 

and 18/lOO, respectively. 

*A Federal farm-to-market road is being surveyed under the supervision of the 

State Highway Department and 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 beneficial to 

the residents of the other'two precincts. 
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-wide project for which all the Commissioners precincts must provide funds?" 

The question imaediately arises as'to what 

'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 equitably expended on the roadsand bridges of their 

county, and, as nearly as the condition 

and necessity of the roads will permit, 

it shall be expended in each county commissioners precinct in proportion to the 

amount colleoted in such'precinct," 

In regard to similar situations involving 

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 affects only 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 principles and theories in relation to 

a nfarm-to&rketW road are just the same. It is stated 

in the Shivers case that: 

"These provisions of the law, as well 

as others which might be mentioned, clearly 

contemplate that the aommissioners court of 

each county shall regard.the roads and hiphways of the county PS a system, to be laid 

out, changed, repaired, improved, and maintained, as far as practical,as~ awhole to 

the best interests and welfare of all the 

p pie of the county_ It is olearly contE:plated that all riads and bridges.of the 

county shall be maintained, repaired, and 

imoroved when necessarv'" as the conditions 

may require, regardless*of the 3recinct in 

which same may be located,so far as the 

funds will equitably justify. 

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

bridge fund acoording to any fixed mathematical 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 distinction as to the type or classification of roads in regard) to its construction out 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 elementary that the 

Commissioners* Court is the agency of the whole county 

with ,each commissioner responsible to 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 establishing and maintaining a county road 

system, the ‘aounty road fund may, be used in one or all 

precincts d.epending upon the needs of the county. This 

should not .be taken to mean, however, that it is mandatory that the Commission&s* .Court should look to the 

whole oounty to procure the funds for a right-of-way. 

Article 6740, supra, clearly points out that, as nearly 

as .conditions will allow and as nearly as necessity will 

permit, the said funds shall be expended in specific precincts in proportion to the amount collected therein. In 

this regard, also, the Shivers case, supra, explains: 

n the commissioners court must 

give eif&i to said article 6740 except when 

the necessities of the roads and bridges require a departure from it. That article requires that the road and bridge funds of all 

counties shall be judiciously and equitably 

expended. It further requires that such 

funds shall, as nearly as the condition and 

necessity of the roads will permit, be expended in each commissioners precinct in pro- 
Hon. V, H, Sagebiel - Page 4 (V-347) 

portion to the amount collected in such precinct, The dominant purpose of this statute 

seems to be to require that the road and 

bridge fund shall be expended in each commissioners precinct in porportion to the amount 

avoided except In oases or oonditions of 

neosssitg, Of oourse, the commissioners 

court has the right to exercise its sound 

judgment in determining the necessity, but 

it cannot act arbitrarily in 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 conditions of necessity* the Commissioners’ Court in “its sound judgmentW 

may expend funds allocated to one precinct in another 

precinct. In other words, this matter must be decided 

by the Comuissioners’ Court, and so long as said Court 

exercises its best judgment and does not act arbitrarily in regard thereto, its findings will not be disturbed. 

Under the facts submitted, the cost of procuring the right-of-way for the farm-to-market roads should 

be paid for out of the funds allocated to the two precincts in which the roads are to be located, unless the 

Commissioners1 Court in its sound judgment finds, by 

proper court order, that this is such a case, or conditions are such, that the funds allocated to one precinct 

or precincts should be expended in another precinct or 

precincts, 

SuA5!44RY 

The cost of procuring a right-of-way 

for a farm-to-market road should be paid 

for out of funds allocated to the precincts 

in which’the road is to be located,‘unless 
Ron, V,. II, Sagebiel - Page 5 (V-347) 

the Oommissioners~ Court in its sound udgmant finds; by proper court ora&,, tha i 

conditions are 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