September 25, 1989 

Honorable John T. Montford Opinion No. JR-1101 

Chairman 

State Affairs Committee Re: Whether a farm-to-market 

Texas State Senate road is a "state highway" for 

P. 0. Box 12068 purposes of right-of-way acguiAustin, Texas 78711 sition under section 4.301(c) 

of article 6702-1, V.T.C.S. 

(RQ-1708) 

Dear Senator Montford: 

you ask whether farm-to-market roads are "state highways" within section 4.301(c) of article 6702-1, V.T.C.S., 

which provides that the state shall pay 90 percent of the 

cost of acquiring right-of-way for state highways. The 

State Department of Highways and Public Transportation has 

not viewed farm-to-market roads as state highways within 

that provision, and the counties have traditionally paid the 

full cost of right-of-way acquisition. 

The provision you inquire about is part of the County 

Road and Bridge Act. V.T.C.S. art. 6782-1, 5 1.001. Section 

4.301(a) of this act authorizes the commissioners court to 

condemn land which the State Highway and Public Transportation Commission determines is needed for a state highway. 

Section 4.301(c) makes the following provision for payment 

for right-of-way secured for certain highways: 

In the acquisition of all rights-of-way 

authorized and requested by the State Department of Highways and Public Transportation 

in cooperation with local officials for all 

hiahwavs desianated bv the State Hiahwav and 

7 ‘C as U 't 

States or state hiahwavs, the State Department of Highways and Public Transportation 

is authorized and directed to pay to the 

counties and cities not less than 90 percent 

of the value . . . of the requested right-ofway . . . . (Emphasis added.) 

p. 5761 
Honorable John T. Montford - Page 2 (JM-1101) 

The question before us is whether farm-to-market roads 

are designated as state highways within section 4.301(c) of 

article 6702-1, V.T.C.S. Some consideration of the role of 

farm-to-market roads in the network of Texas highways and 

roads will help us to answer this question. 

Farm-to-market roads are generally rural roads that may 

be jointly constructed and maintained by the state and 

counties. 36 D. Brooks, County and Special District Law 

5 40.23 (Texas Practice 1989). They carry local traffic and 

serve as feeder roads between the major highway system and 

local county roads. Texas Legislative Council, T&w~s Roads 

and Hia- 37, 46, 136'(0ct. 1952) (Staff Research Report 

52-3). The state began a program of building farm-to-market 

roads in response to public demand that it take some action 

to insure all-weather surfaces on the more important local 

roads. Texas Research League, A Program for Texas Highways: 

A Digest of a Report to the Texas State Highway Commission 

(1957). A 1943 enactment authorizes the highway commission 

to designate "any county road in the state as a farm-tomarket road for purposes of construction, reconstruction, 

and maintenance . . . .'I Acts 1943, 48th Leg., ch. 244, at 

365 (codified as V.T.C.S. art. 6673c).l Counties may levy 

an ad valorem tax to fund the construction of farm-to-market 

roads and may use the tax revenues in cooperation with the 

highway department to acquire rights-of-way for and to build 

and maintain such roads. Tex. Const. a*. VIII, 0 l-a: 

V.T.C.S. art. 6702-1, 8 4.103 (implementing legislation); 

Attorney General Opinion V-1169 (1951). 

A farm-to-market road fund is established by section 

4.002 of article 6702-1, V.T.C.S., to finance the construction, improvement, and maintenance of farm-to-market roads 

by the highway department. The fund is to be used for a 

system of roads selected by the State Department of Highways 

and Public Transportation after consultation with the 

commissioners courts of the counties as to the most needed 

roads in the counties. V.T.C.S. art. 6702-1, 5 4.002(c). 

The roads "shall serve rural areas primarily" and "shall not 

be potential additions to the federal aid primary highway 

1. Article 6673c, V.T.C.S., appears to be one of a 

series of enactments which shifted most of the costs of 

providing highways and roads from the counties to the state. 

See aeneu Jefferson Countv v. Board of Countv and Dist. 

. debtednesa 182 S.W.Zd 908, 912 (Tex. 1944): see al o 

V.T.C.S. arts. 6k70, 6673, 6674b, 6674q-2, 6674q-4; Attorn& 

General Opinion V-1115 (1950). 

p. 5768 
. . 

Honorable John T. Montford - Page 3 (JM-1101) 

system . . . .I* & 5 4.002(d). They are moreover to "be 

capable of early integration with the previously improved 

road svstem, and at least one end should connect with 

a road already or soon to be improved on the State svstem of 

w.n Zg, 5 4.002(d)(5) (emphasis added). 

The provisions on building and financing farm-to-market 

roads generally refer to them as roads, and not state 

highways, thus suggesting that they are not state highways 

within section 4.301(c) of article 6702-1, V.T.C.S. These 

roads primarily serve local needs for transportation and for 

access to other state roads, rather than the needs of 

traffic going through the county or the state. Thus, in 

acquiring the right-of-way for a farm-to-market road the 

county is ordinarily paying a cost of a facility that will 

principally benefit local users. Both the language and the 

purposes of farm-to-market legislation persuade us that 

these roads are not state highways for which the state must 

reimburse right-of-way costs under section 4.301(c). 

The circumstances 

section 4.301(c), 

under which the predecessor of 

article 6702-1, V.T.C.S., was enacted and 

its legislative history also support our construction of 

this provision. Section 4.301(c) derives from former 

article 6673e-1, adopted in 1957 to authorize the highway 

department to spend money for "the purchase of rights of way 

for certain highways under certain conditions . . . .I8 Acts 

1957, 55th Leg., ch. 301, f 1, at 731 (title). 

,, 

Before 1957, 

local governments had to nav the entire cost of riaht-of-wav 

for state highways. Texas - n- Ne w Hiahwav Riaht-Of-W& Policv 

TEX. RESEARCH LEAGUE ANALYZES, July 17, 1957. In that yea; 

the legislature changed this practice by adopting House Bill 

620, codified in part as article 6673e-1, 

later recodified 

V.T.C.S., and 

as section 4.301(c) of article 6702-1, 

V.T.C.S. 

A contemporary report on Texas highways prepared by the 

Texas Research League at the request of the highway commission proposed a solution to the "right-of-way problem" 

that was subsequently adopted as House Bill 620. Texas 

Research League, A Program for Texas Highways: 

the Texas Highway Commission, ch. 

A Report to 

V, "The Right of Way 

Problem" (1957). The report recommended that the State 

Highway Commission establish a policy of paying a percentage 

of the cost of right-of-way on interstate highway system 

projects and primary and secondary state highway system 

projects. & at 65. 

commission 

It also recommended that the highway 

"continue to require local governments to 

purchase or otherwise provide the right-of-way for state 

farm and ranch to market roads." ;EBt at 67. The report 

explained its different treatment for farm-to-market roads 

p. 5769. 
Honorable John T. Montford - Page 4 (JM-1101) 

on the ground that most of them were built, at least in 

part, along rights-of-way originally used for a county road. 

The amount of additional right-of-way required could usually 

be obtained at nominal cost and in many cases would be 

donated by the abutting land owners "who are after all, the 

primary beneficiaries of the project." & 1 

Section 1 of House Bill 620 appears to embody the 

suggestions of the Texas Research League report as to 

providing reimbursement for costs of acquiring right-of-way 

for interstate highways and major state highways, but not 

for farm-to-market roads.3 When the bill was 

considered at 

being 

second reading by the House, the following 

amendment was proposed and rejected: 

Section 4. The provisions of this act 

shall also apply to the county expended costs 

of right-of-ways and right-of-way easements 

of Farm to Market Roads changed to State 

designated Highways within ten years of their 

construction. 

H.J. of Tex., 55th Leg., Reg. Sess. 2435 (1957). The text 

of the rejected amendment indicates that farm-to-market 

roads are not state designated highways within section 1 of 

Rouse Bill 620, which became article 6673e-1, V.T.C.S. 

Thus, section 4.301(c) of article 6702-1, V.T.C.S., which 

carries forward the language of section 1 of House Bill 620, 

does not apply to farm-to-market roads. 

There are cases construing the predecessor of subsections 4.301(a) and 4.301(b) of article 6702-1, V.T.C.S., 

which hold that a farm-to-market road is part of the state 

highway system. &8 Bolin Braz ria County , 381 S.W.2d 

206 (Tex. Civ. App. - Hous& 19645) no writ): :Moodv Cotton 

2. Senate Bill 1528 of the 71st Legislature shows that 

donation of right-of-way for farm-to-market roads is not a 

thing of the past. Acts 1989, 71st beg., ch. 706, at 3238 

(to be codified at Local Gov't Code 8 43.032). It 

authorizes a home-rule city to annex a certain area crossed 

by the proposed route of a farm-to-market road if the 

landowner has donated or is committed to donate the 

right-of-way necessary to construct the road. 

3. The other provisions of House Bill 620 related to 

financing the state's acquisition of rights-of-way. Acts 

1957, 55th Leg., ch. 301, f8 2, 3, at 732-735. 

.P.~ 5770 
Honorable John T. Montford - Page 5 (JM-1101) 

. . 

(Tex. Civ. App. - 

Fort Worth 1953, v. a s our&y 

243 S.W.2d 277 (Tex. Civ. ADD. - Waco 1951, no writ). Sub: 

sections (a) and (b) of s&ion 4.301 derive from a 1925 

enactment, former article 6674n, V.T.C.S. Acts 1925, 39th 

Leg., ch. 186, 5 14, at 458. A 1929 amendment to article 

6674n, V.T.C.S., authorized a commissioners court to secure 

and pay for right-of-way for state hiqhwavs. Acts 

41st Leg., 3d CIS., ch. i0, at 243. a, Woodv Cotton 

1929, 

co., 

and Bolin addressed ouestions about the authoritv of a 

commissioners court to-condemn property for a farm-to-market 

road on behalf of the state under former article 6674n, 

V.T.C.S. Their statements characterizing farm-to-market 

roads must be read in that context.4 None of the cases 

addressed state reimbursement of right-of-way costs under 

former article 6673e-1, V.T.C.S. 

In w, condemnation proceedings were filed by the 

state through the commissioners court of Palls County to 

condemn land for a farm-to-market road. The property owners 

argued that the state could not condemn land for a farm-tomarket road under former article 6674n, V.T.C.S., which 

authorized condemnations of land for roads to be included in 

the designated state highway system. Since a farm-to-market 

road was a local road and not part of the designated highway 

system, the plaintiffs claimed that it could not be condemned under that statute. The court found that the highway 

4. Attorney General Opinion V-1282 (1951) also 

addressed the correct procedure for condemning land for 

farm-to-market roads. The opinion concluded that the county 

should institute the proceedings in its name and not the 

name of the state, because eminent domain proceedings were 

required by statute to be instituted in the county's name 

except as to land condemned under article 6674n, V.T.C.S., 

for a ."'designated State Highway,* which term does not 

include farm-to-market roads.@' Attorney General Opinion 

V-1282, at 3 (1951). Since the county acquired title to the 

land as agent for the state, condemnation proceedings for 

rights-of-way for farm-to-market roads brought by the 

commissioners court in the name of the state were not 

necessarily void, but the opinion reserved discussion of 

this question, which had not been asked. 1nUl.L MOOdV, 

and Bolin, the commissioners courts had instituted proceedings in the name of the state to condemn land for 

farm-to-market roads, and the courts had to address the 

application of article 6674n, V.T.C.S., to those proceedings. 

p. 5771 
Honorable John T. Montford - Page 6 (JM-1101) 

commission had implied authority under article 6673c, 

V.T.C.S., to condemn land for farm-to-market roads. 

Moodv Cotton Co . also involved a suit by the commissioners court to condemn land on behalf of the state for a 

farm-to-market road. The court held that former article 

6674n, V.T.C.S., authorized the commissioners court "to 

condemn land in the name of the State for right of way 

purposes necessary or convenient to any road in the State 

Highway System to be constructed, reconstructed, widened, 

straightened or lengthened and that Farm-to-Market Road No. 

455 is such a road." Moodv Cotton Cot, m, at 206. 

Thus, the court in Moodv Cotton Co. concluded that a 

farm-to-market road was a road in the state highway system 

for purposes of article 6674n, V.T.C.S., while the a 

court did not. noodv and a were decided prior to the 

enactment in 1957 of former article 6673e-1, V.T.C.S. 

Belln, on the other hand, arose after the reimbursement 

requirement was adopted. In Bolin, the Highway Department 

had agreed to build a farm-to-market road in Brazoria County 

if the county would furnish the right-of-way free of cost to 

the state. The county's eminent domain suit was contested 

on the ground that the road in question was a county road 

and the commissioners did not follow the correct procedure 

for condemning land for county roads. The court stated as 

follows: 

The order of the Highway Commission . . . 

provides that when the proposal has been 

accepted by Brazoria County it is ordered 

that a Farm to Market Road be designated 

along said route. It was a road, exceat f r 

the riaht of way to be constructed undzr 

contract by the &ate at its expense. . . . 

This designation of a Farm to Market Road 

suffices to make it a part of the Highway 

system. 

a, a, at 209. 

Thus, the farm-to-market road in Bolin was part of the 

state highway system for purposes of condemning the rightof-way, but the state was not to pay any of the cost of 

acquiring the right-of-way. The holdings of u, Moodv 

Cotton CO-, and w are not inconsistent with our reading 

of section 4.301(c) of article 6702-1, V.T.C.S. That 

provision does not require the state to reimburse counties 

for 90 percent of the cost of acquiring right-of-way for 

farm-to-market roads. 

p. 5772 
. Honorable John T. Montford - Page 7 (JM-1101) 

' , 

Farm-to-market roads are not 

ways08 for purposes of section 

article 6702-1, V.T.C.S., which 

State Department of Highways - . . . 

"state high4.301(c) of 

requires the 

and Public 

Transportation to pay 90 percent of the cost 

of rights-of-way acquired by counties and 

cities for "highways designated by the State 

Highway and Public Transportation Commission 

as United States or state highways." 

Zky& 

MATTOX 

Attorney General of Texas 

.MARYNRLLER 

First Assistant Attorney General 

LCUMCCREARY 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEARLEY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Susan L. Garrison 

Assistant Attorney General 

p. 5773