September 25, 1989

Honorable John T. Montford OpinionNo. JR-1101 Chairman State Affairs Committee Re: Whether a farm-to-market Texas State Senate road is a "statehighway" for P. 0. Box 12068 purposes of right-of-way acguiAustin, Texas 78711 sitionunder section 4.301(c) of article 6702-1,V.T.C.S. (RQ-1708)

Dear SenatorMontford:

you askwhether 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 shallpay 90 percent of the cost of acquiring right-of-way for state highways. The State Department of Highways and PublicTransportation has not viewed farm-to-marketroads as state highways within that provision, and the countieshave traditionallypaid the full cost of right-of-wayacquisition.

The provision you inquireabout ispart of the County Road and BridgeAct. V.T.C.S. art. 6782-1, 5 1.001. Section 4.301(a) of this act authorizesthe commissioners court to condemn landwhich the State Highway and Public Transportation Commissiondetermines is needed for a state highway. Section 4.301(c)makes the followingprovision for payment for right-of-way secured for certainhighways:

In the acquisitionof all rights-of-way authorized and requestedby the State Department of Highways and Public Transportation in cooperationwith local officialsfor all hiahwavs desianatedbv 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

. . . . (Emphasisadded.)

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

The questionbefore us iswhether farm-to-market roads
are designated as statehighwayswithin section 4.301(c) of article 6702-1,V.T.C.S. Some considerationof the role of farm-to-marketroads in the network of Texas highways and roadswill help us to answer this question.

Farm-to-marketroads are generally rural roads thatmay be jointly constructed and maintainedby the state and counties. 36 D. Brooks, County and Special District Law 5 40.23 (TexasPractice 1989). They carry local traffic and

serve as feeder roadsbetween the major highway system and local county roads. Texas LegislativeCouncil,T&w~s Roads and Hia- 37, 46, 136'(0ct. 1952) (StaffResearch Report 52-3). The statebegan a program of building farm-to-market roads in response to public demand that it take some action to insure all-weather surfaces on themore important local roads. Texas Research League,A Program forTexas 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 forpurposes of construction, reconstruction, and maintenance

. . . .'IActs 1943, 48th Leg., ch. 244, at 365 (codifiedasV.T.C.S. art. 6673c).l Countiesmay levy
an ad valorem tax to fund the construction of farm-to-market roads andmay use the tax revenues in cooperationwith the highway department to acquire rights-of-way for and to build andmaintain such roads. Tex. Const. a*. VIII, 0 l-a: V.T.C.S. art. 6702-1, 8 4.103 (implementing legislation); Attorney General OpinionV-1169 (1951).

A farm-to-marketroad fund is establishedby 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 selectedby 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 areasprimarily" and "shallnot be potential additions to the federal aid primary highway

1. Article 6673c, V.T.C.S., appears to be one of a series of enactmentswhich shiftedmost of the costs of providinghighways and roads from the counties to the state. See aeneu Jefferson Countvv. 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 OpinionV-1115 (1950).

p. 5768. . Honorable John T. Montford - Page 3 (JM-1101)

system

. . . .I*& 5 4.002(d). They aremoreover to "be capable of early integrationwith the previously improved road svstem, and at least one end should connect with
a road already or soon to be improvedon the State svstem of
w.n Zg, 5 4.002(d)(5) (emphasisadded).

The provisions on building and financing farm-to-market roads generally refer to them as roads, and not state highways, thus suggestingthat they are not state highways within section 4.301(c) of article 6702-1,V.T.C.S. These roadsprimarily serve local needs for transportationand 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 ordinarilypaying a cost of a facilitythat will principallybenefit localusers. Both the language and the purposes of farm-to-market legislation persuade us that these roads are not statehighways forwhich the state must reimburse right-of-waycosts 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 spendmoney for "thepurchase of rights of way for certainhighways under certain conditions

. . . .I8Acts 1957, 55th Leg., ch. 301, f 1, at 731 (title). ,, Before 1957, local governmentshad to nav the entire cost of riaht-of-wav for statehighways. Texas -n- Ne w Hiahwav Riaht-Of-W& Policv TEX. RESEARCH LEAGUEANALYZES,July 17, 1957. In that yea; the legislaturechanged this practiceby adoptingHouse Bill 620, codified inpart 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 contemporaryreport on Texas highwayspreparedby 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 forTexas Highways: the Texas Highway Commission, ch. A Report to V, "The Right of Way Problem" (1957). The report recommended that the State Highway Commission establisha policy of paying a percentage of the cost of right-of-wayon interstatehighway 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 otherwiseprovide the right-of-way for state farm and ranch tomarket roads." ;EBtat 67. The report explained itsdifferent treatment for farm-to-market roads

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on the ground thatmost of them were built, at least in part, along rights-of-wayoriginallyused for a county road. The amount of additional right-of-wayrequired 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 interstatehighways andmajor state highways, but not for farm-to-market roads.3 When the bill was considered at being

second reading by the House, the following amendmentwas 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 designatedHighwayswithin 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 designatedhighwayswithin 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-marketroads.

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 ispart 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-marketroads 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-waynecessary to construct the road.

3. The otherprovisions 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.

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. .

(Tex.Civ. App. -

FortWorth 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., authorizeda commissionerscourt to secure and pay for right-of-way for state hiqhwavs. Acts 41st Leg., 3d CIS., ch. i0, at 243. a, Woodv Cotton1929, co., and Bolin addressed ouestions about the authoritv of a commissionerscourt to-condemnproperty 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 roadsmust be read in that context.4 None of the cases addressed state reimbursementof right-of-waycosts under former article 6673e-1,V.T.C.S.

In w, condemnation proceedingswere filedby the state through the commissioners court of Palls County to condemn land for a farm-to-marketroad. 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 condemnationsof land for roads to be included in the designated statehighway system. Since a farm-to-market roadwas a local road and not part of the designatedhighway 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-marketroads. The opinion concluded that the county should institute the proceedings in its name and not the
name of the state, because eminentdomain proceedings were requiredby statute to be instituted in the county's name except as to land condemnedunder 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, condemnationproceedings for rights-of-way for farm-to-market roads brought by the commissioners court in the name of the state were not necessarilyvoid, but the opinion reserved discussion of this question,which had not been asked. 1nUl.L MOOdV, and Bolin, the commissionerscourts had instituted proceedings in the name of the state to condemn land for farm-to-marketroads, and the courts had to address the application of article 6674n, V.T.C.S., to those proceedings.

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

commission had implied authority under article 6673c, V.T.C.S., to condemn land for farm-to-marketroads.

Moodv Cotton Co

. also involveda suit by the commissioners court to condemn land on behalf of the state for a farm-to-marketroad. The courtheld 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 lengthenedand that Farm-to-MarketRoad No. 455 is such a road." Moodv Cotton Cot,m, at 206.

Thus, the court inMoodv Cotton Co. concluded that a farm-to-marketroad was a road in the statehighway system forpurposes 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 requirementwas adopted. In Bolin, the Highway Department had agreed to build a farm-to-marketroad in Brazoria County if the county would furnishthe right-of-way free of cost to the state. The county's eminentdomain suitwas contested
on the ground that the road in question was a county road and the commissionersdid 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 acceptedby Brazoria County it is ordered that a Farm to Market Road be designated along said route. Itwas a road, exceat f r the riaht of way to be constructed undzr contractby 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-marketroad in Bolin was part of the statehighway system for purposes of condemning the rightof-way,but the statewas not to pay any of the cost of acquiring the right-of-way. The holdings of u, Moodv Cotton CO-, and w are not inconsistentwith 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-marketroads.

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' ,

Farm-to-marketroads are not ways08for 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 90percent of the cost of rights-of-way acquired by counties and cities for "highwaysdesignatedby the State Highway and PublicTransportation Commission

as United States or statehighways."



# Zky&

MATTOX Attorney General of Texas

.MARYNRLLER FirstAssistant Attorney General

LCUMCCREARY ExecutiveAssistantAttorney General

JUDGE ZOLLIE STEARLEY SpecialAssistant Attorney General

RICK GILPIN Chairman, Opinion Committee

Preparedby Susan L. Garrison Assistant Attorney General

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