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HonorableG. E. Rigby CountyAuditor, Uvalde County Uvalde, Texas
Dear Sir Opinion No. O-6764 Rsr Procedure of the Commissioners' Court of L?valdeCountyto sscurs the right to enter the property in question and survey for the right-of-way.
Your letter of Deoember 9, 1943, requesting the opinion of this department on the above statedmatter reads, in part, as follows%

"I would like your advice on the following situation that has arisen in this County. "The State Highway Dspartment's Engineers are laying out a proposednew route for a State Highway between the towns of Sabinal and Utopia,,in Gvalde County, and in making some of their surveys,have found it necessary to enter upon the lands of individuals. One individualhas ordered the Engineers off and have forbidden them to come on his premises again. 1would appreciateknowing what legal rights the County Commissionershave in this matter, and what proceduretheymust go through in order to secure the right, to enter the property and surrey for ,therightOf-way." Article 6674n, Vernon'sAnnotated Civil Statutes,authorize any commissioners'court to scours by purchase or by oondamnationon behalf of the State of Texas, any new or wider right-of-way or land not exceeding one hundredfeet in width for stream bed diversion in aonnectionwith the locating, relocating or constructionof a designated State Highway, or land or lands formaterial or borrow pits, to be used in the construotion,reoonstruction,ormaintenance of State Highways.

This statute further provides that in the event of condemation by the oountythe proaedure shall be the same as set out in Title 52, Articles 3264 to 3271, inclusive,Revised Civil Statutes of Texas, 1925. The provisions of this statute charge the State Highway Commissionwith the duty of furnishing to the oounty commissioners'courts the plats or field notes of such right-of-way or lands and the description of such material as may be required,after which the commissioners'oourtmay,HonorableG. E. Rigby, page 2

purohase or condemn the same,with title to the State of Texas, in aoaordanoewith such field notes.

As we understand the facts in your latter, a certain individual has refused to permit the engineers of the State Highway Dspartment to enter upon his property for the purpose of making certain surveys for the purpose of locatingthe route of highway in question. The power of designatingthe route of the highway rests in the Highway Department.and not in the Commissioners'Court. (See the case of San PatricioVCountyv. Maxwell, et al, 56 S. W. (2d)'296and authorit= aited therein).

We quote from the abovementioned case (San Patricia Countyv. Maxwell, et al) as follows:

"Moreover, it is apparent that, in thematter of designating in detail the route to be followedby State Righways the actions of the Highway Dapertment,being disaretionary acts purely administrative in their nature, cannot be direoted by the courts or halted by them except in possible extraordinary situationsnot disclosed here. ++**"
We quote from the casa of Eobbitt, et al, v. Gordon, 108 S.W. (Zd) 2S4, as follows:

n* * +we quote the followingpropositionfrom Johnson v. Ferguson, (Tex. Civ.App.) 66 S. W. (2d) 155, 159, 160, as the correct statementof the law, controllingthe exercise by the Highway Commissionof its discretion in locating e public road: 'Inmatters of Judgment touohing the commissioners'functions, theirs, and not that of another, is supreme. Certainlytheir acts other than those of a purelyministerialnature shouldnot be stayed at the hands of the court, and the important functions of the department therefore impeded or impaired, except upon verified allegations of fact showingunequivocallythat they are exceeding the bounds of their legal authority; and es certainly, their acts in the exercise of an honest discretion,must be respectedwhen untainted by fraud and unassailed on account of accident ormistake occurring in their performance, or such abuse of discretionas under the authoritieswould avoid the same."'
As the Stats highway Commission is chargedwith the duty of furnishing to the county commissioners oourts the plats or field notes of such right-of-wayor land as may be required there is no duty imposed upon the county commissioners'aourt to secure the fieldnotes or plats of suah right-of-way or land. Therefore, it is our opinion that there is no action to be taken by the ooasaissioners' court regarding the question under consideration. For the purpose of thisHonorableG. E. Rigby, page 3 O-5764

opinion,we are not concernedwith the question of the State Highway Commission securing the fieldnotes or plat of the right-of-way or land hsretoforementioned. Therefore, this opinion is not to be construed es expressingany opinion concerningthe duties, powers or rights of the State Highway Commission in scouring the plat or field notes of the right-of-way or lend on which the survey is desired to be made.
Yours very truly
ATTORREY GENERAL OF TEXAS

By s/Ardellbilliams Ardell yjilliams Assistant
AW:EP:wo

APPROVED DEC. 23, 1943 s/Gerald C. Mann ATTORNEY GENERAL OF TEXAS Approved Opinion Committee By s/BWB Chairman