Hon. Brady Gentry, Chairman OpinionNo. O-42%

State'Highway

Commission Re: Whether or not it Is manda-
_ Austin,,Texas

Dear Sir:

We acknowledgereceipt of your request on the ques-

. _ - -- tion herein stated..Your request is as follows: tory for State Highway Commission to accept funds tendered it under the County and DistrictRoad Bond Assumption

Law.

18Reference.is

made to paragraph4 of Section 6-A,.Actsof the,First Called Session of the 47th Legislature,and;particularly>to that part of paragraph4 wblch.reads:

. t8C**** and where such bonds or warrantswere voted prior to January 2. 1939 and prior to the designation.of

the road-as a-StateHighwayand which have'notyetbeen issued or expended,the county or def&ned road district may issue such bonds or warrants or other legal evidenceof indebtednessand place the-proceedsZ.n escrowwith the State Highway Commission for the construction of such road under.plans, contracts,specifications and supervisionof the State Rlghway.Departme&, and when~so expended the bonds warrants or other evidencesof Indebtednessshali be eligible to participateln,.the.Coirnty and Road District: Highway Fund the same as If the bonds, had been issued and.

expendedprior to January 2, 1939****'

,UFrom the above wordi&;it will be seen that under. certa5neondltlons:therein outlined, county funds may be .expended.by.the State Highway Department on designated State Highways after which the county bonds, warrants and.other iegal -evidences of indebtedness

become eligible for participation in the county and road dl.stri.ct Highway Fund. The referencesto .the

Highway Commission and Highway Departmenthave raised in our minds the following questions,on which we would be pleased to have your opinion: First, does the act require the HighwayCommission to accept all funds comingwithinHon. Brady Gentry, page 2

the paragraph referred to which may be tendered to it by ~kounties, and expend such funds in the construction

of the destgnatedroads, or does the act confer upon the Highway Commission the discretionto determinewhich, if any, county funds will be accepted and expended and which shall not be accepted and expended?"

The answer to your requestnecessarilydepends upon whether or not the quoted portions of the County and District Road Bond AssumptionLaw is an expressed grant to the counties of'the power to determinewhen, where and how State Highways shall be constructed. This is true because if it is mandatory that the State Highway Commissionaccept all funds tendered it by the various counties such would be the necessary result.

The 38th Legislatureof Texas authorizedthe State Highway Commissionto take over and maintain the various State Highways. The effect of this Act was to vest in the State Highway Commission all the power with reference to State Highways that was formerly exercisedby Commissioners' Courts. State Highway Commissionv. Humphreys, 58 S.W. (2d) 144. Therefore the State Highway Commissionhas the sole power to determine when and where highwayswill be located, (Mosheimv. Rollins, 79 S.W. (26) 672 Andy City of Wichita Falls v. Real Estate Trust, 135 S.W. f2d) 7361, and the individual counties of the State have no right or power to construct and maintain State IIighways.Iverson v. Dallas County, 110 S.W. (2d) 255.

The countieswere permitted to aid in the construction of State Hlghways by the Acts of 1925, Article 6674c, Revised Civil Statutes but the 42nd Legislature, 3rd Called Session,page 115, oh the Acts of 1932, repealed said Article and thereafterthe counties could do nothing in regard to State Highway construction, except procure rights-of-way under Article 6674n,Revised Civil Statutes.

The p&?tifbn,of

the enactmentunder consideration only authorizesthe aounties to issue.the..bopds,which were voted -. prior to SBnuary 2, 1939, and prior to the designationof the road as a State highway. It is a grant to the counties, whose bonds will qualify, of the power to assist in highway construction subject to the plans, contracts, specifications and supervision of the State Highway Department.

From the time of the creation of the State Highway Departmentit has always had complete and exclusivepowers toHon. Brady!Gentry, page 3

determine all questionsrelating to State Highway construction and we do not regard the enactmenthere in questionas being a mandatoryorder to the State Highway Commissionto accept the funds and build the highway authorizedby the bond issue.

You are, therefore,advised that the State Highway Commissionmay determinewhich county funds it will accept and expend for State Highway Construction.

Trusting that the foregoingfully answersyour inquire,we are

Yours very truly

ATTORNEY GENERAT,

OF TFXAS
By /s/ Richard H. Cocke Richard H. Cocke, Assistant

APPROVED DFC la, 1941 /s/ Grover Sellers FIRST ASSISTANTATTORNEY GERERAL

APPROVED:OPINION COMMITTEE BY: BWB,CHAIRMAN

RHC:db:wb