HonorableGeo. H. Sheppard

Comptrollerof Public Accounts Austin, Texas

Dear Sir:
Opinion No. O-1745 Re: Payment of court costs in condemnationproceedingsbr6ughtunder Article 667&n,V.A.C.S., by a Commissioners' Court.
By your letter of November 28, 1939, you ask the opinion of this departmentupon the followingquestions:

"1. Where the,condemnation.proceedings were broughtunder Article 6674x-t,

V. A. C. S.; by the Commissioners' Court of
a county other than Travis,may the Highway Funds be used for the payment of court costs and for the actual payment of right of waysl

"2. If such-Highway Funds may be used for the payment of the aourt costs, is it proper that the warrants issue to the individuals to whom the fees accrue, or should the warrants issue to the County Clerk in payment of court costs end the County Clerk, in turn, pay the witnesses and other items of the.court costs?

“3. In aase an attorney is appointedto representthe State in the condemnation proceedings,then may fees for such attorney be paid out of the Highway Fund, or should they be paid out of the appropriation made for the AttorneyGeneral, if payable at all?

Article 667&n, Vernon's Revised Civil Statutes, reads as follows:
Whenever, in the judgment of the State Highway Commission, the use or acquisitionof any land for road, right of way purposes, timber, earth, stone, gravel or other material, necessary or convenient to any road to be constructed,reconstructed,maintained,widened, straightenedor lengthened;
or land not exceeding one hundred (100) feet in width for stream bed diversion in connection with the locating,HonorableGeo. H. Sheppard,Page 2 o-1745

relocatingor constructionof a designatedState Highway by the State Highway Commission,the same may be aoquiredby

iurchase or condemnation by the County CommissionersCourt. rovided that the County in which the State Highway is located may pay for same out of the CountyRoad and Bridge Fund, or any available county funds.
"Any CommissionersCourt is hereby authorizedto secureby purchase or by condemnationon behalf of the State of Texas, any new or wider right of way or land not exceeding one hundred (100) feet in width for streambed diversion in connection with the locating,relocatingor construdtionof a designatedState Highway, or land or lands for material or borrow pits, to be used in the construction, reconstruction,
or maintenanceof State Highwa s and to pay for the same out of the County Road and Bridge $ und, or out of any special road funds or any available county funds. The State Highway Commission shallbe chargedwith theduty of furnishingto the County CommissionersCourt the plats or field notes of such right of way or land and the descriptionof such materials
as may be required,after which the CommissionersCourt may, and is hereby authorizedto purchaseor condemn the same, with title to the State of Texas, in accordancewith such field notes. Provided that in the event of condemnation by the County the procedure shall be the same as that set out in Title 52, Articles 3264 to:3271, inclusive, Revised Civil Statutesof Texas, of 1925. Provided that if the County CommissionersCourt of any County in which such right of way is, in the judgment of the State Highway Commission necessary for the construction of a part of a designated&ate Highway shall fail.or refuse to secu.re by purchase or by condemnation for or on behalf of the State of Ti?%.as,~ such rigRt.'of~way oipbrk@r8tvf; immediatpryand as speedilyas possible, under said Title 52, Articles 3264 to 3271, inclusive,Revised Civil Statutes of Texas, of 1925, after being served with a copy of an order of the State Highway Commission identifying by field notes, the part of the Highwaynecessary for the construction

of such designated State Highway and requesting such County CommissionersCourt to secure same, then and in such event and within ten (10) days after the service of such notice, said State Highway Commissionshalldirect the Attorney General of Texas, to institutecondemnationproceedings in the name of the State of Texas, for the purpose of securing such right of way. The right of eminent domain to condemnany part of a right of way for a State designated highwayunder the conditionsherein set out is hereby conferred on the County Court of Travis County. Such condemnation proceedings shall be institutedby the Attorney General by filing a statement for condemnation with the..County

Judge of Travis County,~Texas, and the venue of such proceeding shall be in Travis County, Texas, and jurisdictionandHonorableGeo. H. Sheppard,Page 3 o-1745

authorityto appoint three (3) disinterestedfreeholdersof Travis County, Texas, as Commissionersis-herebyconferred-~ bpon:the-County

Jndge of Travis Courity,'.Texas;,and'otherwise j3uoh con8emnationsbzilP be according to the provisionof said Title 52, Articles 3264 to 3271, inclusive, Revised Civil Statutesof Texas, of 1925."

The aase of TradersCompress Co. Y. State et al, (Civ.Ap.) 77 S. W. (2) 245, has the followingto say about the statute above quoted:

"In a condemnation proceeding,such as this, institutedand

Rrosecutedby the Commissioners' Court in behalf of the State ighway department, no provision is made by the statute obligating the State to pay compensationfor the land secured...

"This statutedoes not impose on the Commissioners' Court the duty of securing land for the purposes therein specified, but does require that if the authority grantedbe exercised, the Commissioners' Court pay for the land purchasedor pay the damages for the land condemnedout of the county road and bridgefund or out of any special fund that may be provided by law.

We do not think any one would contend, if the Commissioners' Court shouldpurchase land for the State under this statute, that the State would be obligated to pay the owner the purchase price. Neither, in our opinion can the State be bound by a judgmentagainst it obtained in a condemnationproceeding instituted

and prosecuted in the name of the State by the Commissioners' Court under this statute."

vJhere the condemnation

proceeding is brought under 667&n by the Commissioners'

Court of the county, the expenses of prosecuting such an action, includingthe court costs, and the amount necessary to actually pay for the right of way condemned,are to be paid by the Commissioners' Court out of the funds of the countydesignated in Article 6674n. In such a sktuationthe Commissioners' Court is without authority to obligate the State Highway Fund for the payment of court costs, and for the actual payment of right of way, or for any other expenses incident to the maintenanceand prosecutionof the condemnation proceedings.

It follows that your questionsare to be answeredas follows:

1. Where condemnation proceedingsare brought under Article 66M by the Commissioners' Court of a county, the funds of the State Highway Departmentmay not be used for the payment of court costs,
or for the actual payment for right qB way.HonorableGeo. H. Sheppard,Page 4 O-1745

2. In view of the answer made to your first question, your second questionneed not be answered.

3. Attorney'sfees incurredby the Commissioners' Court in the prosecutionof condemnation proceedingsunder Article 6674n
are to be paid by the Commissioners'Court out of the funds of the county designated by such Article of the statutes. No authority i to representthe State as such in quch proceedings, and obligate the State HighwayDepartment or the AttorneyGeneral to pay the fee of such an attorney.
Very truly yours

ATTORNEY GENERALOF TEXAS

BY
Rb'F-MR R. W. Fairchild

APPROVEDD!$. 11, 1939

Gerald C. Mann

ATTORNEYGENERfiL

OF TEXAS