I - 

Honorable G. E. Rigby 

County Auditor, Uvalde County 

Uvalde, Texas 

Dear Sir Opinion No. O-6764 

Rsr Procedure of the Commissioners' 

Court of L?valde County to 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 stated matter 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 proposed new 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 individual has 

ordered the Engineers off and have forbidden them to come 

on his premises again. 1 would appreciate knowing what 

legal rights the County Commissioners have in this matter, 

and what procedure they must go through in order to secure 

the right, to enter the property and surrey for ,the rightOf-way." 

Article 6674n, Vernon's Annotated Civil Statutes, authorize 

any commissioners' court to scours by purchase or by oondamnation on 

behalf of the State of Texas, any new or wider right-of-way or land 

not exceeding one hundred feet in width for stream bed diversion in 

aonnection with the locating, relocating or construction of a designated State Highway, or land or lands for material or borrow pits, 

to be used in the construotion, reoonstruction, or maintenance of 

State Highways. 

This statute further provides that in the event of condemation 

by the oounty the 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 Commission with 

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' oourt may, 
Honorable G. E. Rigby, page 2 

purohase or condemn the same, with title to the State of Texas, in aoaordanoe with 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 locating the route of highway in question. The 

power of designating the route of the highway rests in the Highway Department. and not in the Commissioners' Court. (See the case of San 

PatricioVCounty v. Maxwell, et al, 56 S. W. (2d)'296 and authorit= 

aited therein). 

We quote from the above mentioned case (San Patricia Countyv. 

Maxwell, et al) as follows: 

"Moreover, it is apparent that, in the matter of designating in detail the route to be followed by 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 situations not disclosed here. ++**" 

We quote from the casa of Eobbitt, et al, v. Gordon, 108 S.W. 

(Zd) 2S4, as follows: 

n* * +we quote the following proposition from Johnson 

v. Ferguson, (Tex. Civ. App.) 66 S. W. (2d) 155, 159, 160, 

as the correct statement of the law, controlling the exercise by the Highway Commission of its discretion in locating e public road: 'In matters of Judgment touohing the 

commissioners' functions, theirs, and not that of another, 

is supreme. Certainly their acts other than those of a 

purely ministerial nature should not 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 showing unequivocally that they are exceeding 

the bounds of their legal authority; and es certainly, 

their acts in the exercise of an honest discretion, must be 

respected when untainted by fraud and unassailed on account 

of accident or mistake occurring in their performance, or 

such abuse of discretion as under the authorities would avoid the same."' 

As the Stats highway Commission is charged with the duty of 

furnishing to the county commissioners oourts the plats or field notes 

of such right-of-way or land as may be required there is no duty imposed upon the county commissioners' aourt to secure the field notes 

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 this 
Honorable G. E. Rigby, page 3 O-5764 

opinion, we are not concerned with the question of the State Highway 

Commission securing the field notes or plat of the right-of-way or 

land hsretofore mentioned. Therefore, this opinion is not to be construed es expressing any opinion concerning the 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/Ardell billiams 

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