Honorable Geo. H. Sheppard 

Comptroller of Public Accounts 

Austin, Texas 

Dear Sir: 

Opinion No. O-1745 

Re: Payment of court costs in condemnation proceedings br6ughtunder Article 667&n, V.A.C.S., 

by a Commissioners' Court. 

By your letter of November 28, 1939, you ask the opinion of this 

department upon the following questions: 

"1. Where the,condemnation.proceedings were brought under 

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 appointed to represent the 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 Attorney General, 

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 acquisition of 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, straightened or lengthened; 

or land not exceeding one hundred (100) feet in width for 

stream bed diversion in connection with the locating, 
Honorable Geo. H. Sheppard, Page 2 o-1745 

relocating or construction of a designated State Highway by 

the State Highway Commission, the same may be aoquired by 

i 

urchase or condemnation by the County Commissioners Court. 

rovided that the County in which the State Highway is located 

may pay for same out of the County Road and Bridge Fund, or 

any available county funds. 

"Any Commissioners Court is hereby authorized to secure by 

purchase or by condemnation on behalf of the State of Texas, 

any new or wider right of way or land not exceeding one hundred (100) feet in width for stream bed diversion in connection with the locating, relocating or construdtion of a 

designated State Highway, or land or lands for material or 

borrow pits, to be used in the construction, reconstruction, 

or maintenance of 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 charged with the duty of furnishing to 

the County Commissioners Court the plats or field notes of 

such right of way or land and the description of such materials 

as may be required, after which the Commissioners Court may, 

and is hereby authorized to purchase or condemn the same, 

with title to the State of Texas, in accordance with 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 

Statutes of Texas, of 1925. Provided that if the County Commissioners Court 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; immediatpry and as speedily as 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 Highway necessary for the 

construction of such designated State Highway and requesting 

such County Commissioners Court to secure same, then and 

in such event and within ten (10) days after the service of 

such notice, said State Highway Commission shall direct the 

Attorney General of Texas, to institute condemnation proceedings in the name of the State of Texas, for the purpose of 

securing such right of way. The right of eminent domain to 

condemn any part of a right of way for a State designated 

highway under the conditions herein set out is hereby conferred on the County Court of Travis County. Such condemnation proceedings shall be instituted by 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 jurisdiction and 
Honorable Geo. H. Sheppard, Page 3 o-1745 

authority to appoint three (3) disinterested freeholders of 

Travis County, Texas, as Commissioners is-hereby conferred-~ 

bpon:the-County Jndge of Travis Courity,'.Texas;,and'otherwise 

j3uoh con8emnation sbzilP be according to the provision of 

said Title 52, Articles 3264 to 3271, inclusive, Revised 

Civil Statutes of Texas, of 1925." 

The aase of Traders Compress Co. Y. State et al, (Civ. Ap.) 

77 S. W. (2) 245, has the following to say about the statute 

above quoted: 

"In a condemnation proceeding, such as this, instituted and 

R 

rosecuted by the Commissioners' Court in behalf of the State 

ighway department, no provision is made by the statute obligating the State to pay compensation for the land secured... 

"This statute does not impose on the Commissioners' Court 

the duty of securing land for the purposes therein specified, 

but does require that if the authority granted be exercised, 

the Commissioners' Court pay for the land purchased or pay 

the damages for the land condemned out of the county road and 

bridge fund or out of any special fund that may be provided 

by law. 

We do not think any one would contend, if the Commissioners' 

Court should purchase 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 judgment against it obtained in a condemnation proceeding 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, including the 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 county designated in Article 6674n. In such a sktuation the 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 maintenance and 

prosecution of the condemnation proceedings. 

It follows that your questions are to be answered as follows: 

1. Where condemnation proceedings are brought under Article 66M 

by the Commissioners' Court of a county, the funds of the State 

Highway Department may not be used for the payment of court costs, 

or for the actual payment for right qB way. 
Honorable Geo. H. Sheppard, Page 4 O-1745 

2. In view of the answer made to your first question, your 

second question need not be answered. 

3. Attorney's fees incurred by the Commissioners' Court in the 

prosecution of condemnation proceedings under 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 represent the State as such in quch proceedings, and obligate 

the State Highway Department or the Attorney General to pay the 

fee of such an attorney. 

Very truly yours 

ATTORNEY GENERAL OF TEXAS 

BY 

Rb'F-MR 

R. W. Fairchild 

APPROVED D!$. 11, 1939 

Gerald C. Mann 

ATTORNEY GENERfiL OF TEXAS