Hon. Brady Gentry, Chairman Opinion No. O-42% 

State'Highway - _ Commission Re: Whether or not it Is mandaAustin,,Texas 

Dear Sir: 

We acknowledge receipt 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 District Road Bond 

Assumption Law. 

18Reference.is made to paragraph 4 of Section 

6-A,.Acts of the,First Called Session of the 47th 

Legislature, and;particularly>to that part of 

paragraph 4 wblch.reads: 

. 

t8C**** and where such bonds or warrants were 

voted prior to January 2. 1939 and prior to the 

designation.of the road-as a-State Highwayand 

which have'not yetbeen issued or expended, the 

county or def&ned road district may issue such 

bonds or warrants or other legal evidence of indebtedness and place the-proceeds Z.n escrow with 

the State Highway Commission for the construction 

of such road under.plans, contracts, specifications and supervision of the State Rlghway.Departme&, and when~so expended the bonds warrants or 

other evidences of Indebtedness shali be eligible 

to participate ln,.the.Coirnty and Road District: 

Highway Fund the same as If the bonds, had been issued and. expended prior 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 i egal -evidences 

of indebtedness become eligible for participation 

in the county and road dl.stri.ct Highway Fund. The 

references to .the Highway Commission and Highway 

Department have raised in our minds the following 

questions, on which we would be pleased to have 

your opinion: First, does the act require the 

Highway Commission to accept all funds coming within 
Hon. 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 destgnated roads, or does 

the act confer upon the Highway Commission the 

discretion to determine which, if any, county 

funds will be accepted and expended and which 

shall not be accepted and expended?" 

The answer to your request necessarily depends upon 

whether or not the quoted portions of the County and District 

Road Bond Assumption Law is an expressed grant to the counties 

of'the power to determine when, where and how State Highways 

shall be constructed. This is true because if it is mandatory 

that the State Highway Commission accept all funds tendered it 

by the various counties such would be the necessary result. 

The 38th Legislature of Texas authorized the State 

Highway Commission to 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 exercised by Commissioners' Courts. State 

Highway Commission v. Humphreys, 58 S.W. (2d) 144. Therefore 

the State Highway Commission has the sole power to determine 

when and where highways will be located, (Mosheim v. 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 counties were 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 thereafter the 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 

authorizes the aounties to issue.the..bopds,which were voted -. 

prior to SBnuary 2, 1939, and prior to the designation of 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 

Department it has always had complete and exclusive powers to 
Hon. Brady!Gentry, page 3 

determine all questions relating to State Highway construction and we do not regard the enactment here in questionas 

being a mandatory order to the State Highway Commission to 

accept the funds and build the highway authorized by the 

bond issue. 

You are, therefore, advised that the State Highway 

Commission may determine which county funds it will accept 

and expend for State Highway Construction. 

Trusting that the foregoing fully answers your 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 ASSISTANT ATTORNEY GERERAL 

APPROVED: OPINION COMMITTEE 

BY: BWB,CHAIRMAN 

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